CONTENTS
Tuesday 27 February 1996
Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1995, Bill 19, Mr Harnick /
Loi de 1995 modifiant des lois en ce qui concerne l'intervention, le consentement
et la prise de décisions au nom d'autrui, projet de loi 19, M. Harnick
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président: Martiniuk, Gerry (Cambridge PC)
Vice-Chair / Vice-Président: Johnson, Ron (Brantford PC)
*Boyd, Marion (London Centre / -Centre ND)
Chiarelli, Robert (Ottawa West / -Ouest L)
Conway, Sean G. (Renfrew North / -Nord L)
*Doyle, Ed (Wentworth East / -Est PC)
*Guzzo, Garry J. (Ottawa-Rideau PC)
Hampton, Howard (Rainy River ND)
Hudak, Tim (Niagara South / -Sud PC)
Johnson, Ron (Brantford PC)
Klees, Frank (York-Mackenzie PC)
*Leadston, Gary L. (Kitchener-Wilmot PC)
*Martiniuk, Gerry (Cambridge PC)
*Parker, John L. (York East / -Est PC)
*Ramsay, David (Timiskaming L)
*Tilson, David (Dufferin-Peel PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Boushy, Dave (Sarnia PC) for Mr Ron Johnson
Brown, Michael A. (Algoma-Manitoulin L) for Mr Chiarelli
Caplan, Elinor (Oriole L) for Mr Conway
Johns, Helen (Huron PC) for Mr Hudak
Marchese, Rosario (Fort York ND) for Mr Hampton
O'Toole, John R. (Durham East / -Est PC) for Mr Klees
Also taking part / Autres participants et participantes:
Stockwell, Chris (Etobicoke West / -Ouest PC)
Ministry of Health
Burwash, Anna, senior policy adviser, program design
Perun, Halyna, legal counsel
Clerk / Greffière: Bryce, Donna
Staff / Personnel: Gottheil, Joanne, legislative counsel
The committee met at 1005 in room 151.
ADVOCACY, CONSENT AND SUBSTITUTE DECISIONS STATUTE LAW AMENDMENT ACT, 1995 / LOI DE 1995 MODIFIANT DES LOIS EN CE QUI CONCERNE L'INTERVENTION, LE CONSENTEMENT ET LA PRISE DE DÉCISIONS AU NOM D'AUTRUI
Consideration of Bill 19, An Act to repeal the Advocacy Act, 1992, revise the Consent to Treatment Act, 1992, amend the Substitute Decisions Act, 1992 and amend other Acts in respect of related matters / Projet de loi 19, Loi abrogeant la Loi de 1992 sur l'intervention, révisant la Loi de 1992 sur le consentement au traitement, modifiant la Loi de 1992 sur la prise de décisions au nom d'autrui et modifiant d'autres lois en ce qui concerne des questions connexes.
The Chair (Mr Gerry Martiniuk): I call the continuation of these hearings to order. These are the hearings of the standing committee on administration of justice considering Bill 19.
I should announce that I have requested a subcommittee meeting at 12 o'clock for approximately 10 minutes so we can discuss certain matters expediting our consideration of parts of the bill.
We shall proceed this morning with clause 1(b), which has an amendment proposed by Helen Johns.
Mrs Helen Johns (Huron): By the government, I hope.
I move that clause 1(b) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "in care facilities" in the third line.
Just as some discussion on this, on part IV we heard from a number of people who would have liked to see us extend outside of the three care facilities that we have talked about specifically in the act, so we have taken out of this section "in care facilities" to be able to accommodate them.
The Chair: Any comments or questions in regard to Mrs Johns's motion?
Mrs Marion Boyd (London Centre): I just have a question as to whether or not, and I can't remember, there are other amendments that do the same thing throughout.
Mrs Johns: A number of them.
Mrs Boyd: Then I would like to propose that whatever the decision is -- and certainly we have no objection to this; we think this is a good change and certainly accords with what we heard -- that wherever this particular wording change occurs, henceforth we simply agree to it and we don't debate it again.
Mrs Johns: Fine with me.
The Chair: Excellent suggestion, Mrs Boyd. Mrs Johns, can you withdraw your motion and try to move a motion which would contain all the changes of that type throughout the act? Is that possible?
Mr Rosario Marchese (Fort York): Leg counsel.
Mrs Johns: We tried to deal with this with leg counsel before, so could I let leg counsel speak for a few minutes and see what the problem was with that?
The Chair: Certainly.
Ms Joanne Gottheil: There are different changes in wording that are required in different provisions of the bill, so it's not possible to do one global motion that just strikes out certain words and replaces them. But I'm sure we can point out the sections where that happens.
The Chair: Fine. We shall proceed with 1(b). Shall clause 1(b) pass? Agreed.
Mrs Elinor Caplan (Oriole): The only thing I would ask, Mr Chairman, is if you could state the page number. Since we're going to go fairly quickly through this, that would be helpful.
Mrs Johns: Page 76 in the motions, and the first time we see it is in 1(b) on page 63 of the Health Care Consent Act.
Mrs Caplan: That's very helpful. Also it helps for people who are watching to be able to follow along and know where we are. We're on page 63 of the act --
Mrs Johns: Yes, in the bill.
Mrs Caplan: That's page 62 of Bill 19, not 63. That's if you're at (b).
Mrs Johns: It's the last line on 62.
Mrs Caplan: And page 76 --
Mrs Johns: In the motions.
Mrs Caplan: That's right. Good.
The Chair: We will now proceed to clause 1(c), which is set out on page 77 of your proposed motions.
Mrs Caplan: Have we concluded page 76? Did we vote? I didn't hear a vote.
The Chair: Yes.
Mr Marchese: It was agreed.
Mrs Caplan: Okay, thank you. Now we are on page 77?
Mrs Johns: I'm on page 77 right now and it's in the Health Care Consent Act, Bill 19, page 63. We're dealing with clause 1(c).
I move that clause 1(c) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "who reside in care facilities" in the fourth and fifth lines and substituting "who are to receive personal assistance services."
This is a consequential amendment to the one we were talking about last time, and I won't talk about it again from now on, except to say that we felt that some people wouldn't be residing, they would just be receiving care, and we wanted to make sure that we didn't just make it an overnight stay.
Mrs Boyd: I think it's important for us to just point out that this is really important for the growth in community-based long-term care. That was the concern and, again, there are many, many different consequent ones where we'll be changing to "personal assistance services." Again, it's very responsive to what we heard, so that's great.
The Chair: Is there any other comment in regard to clause 1(c) in the proposed amendment?
Shall the amendment carry? Carried. Any opposed? That amendment has passed.
We'll proceed to subclause 1(c)(i) on page 78.
Mrs Johns: I'm on page 78 of the motions and page 63 of the bill.
I move that subclause 1(c)(i) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"(i) allowing those who have been found to be incapable to apply to a tribunal for a review of the finding."
This replaces the reference of "appeal" in the incapacity finding to "review of the finding." It was suggested by the PPAO, and we believe it's more accurate and precise wording. We treated this as a technical amendment and we felt it should be changed.
Mrs Caplan: In fact this reverts to what it has been the existing practice and language. The notion of changing it to "appeal" made it far more judicial. This is a quasi-judicial body and I'm pleased to see this amendment. I think it does actually reflect the way things work.
The Chair: Any other comment? Shall subclause 1(c)(i) pass? Any objection? If not, we shall proceed to 1(c)(ii) as contained on page 79.
Mr David Ramsay (Timiskaming): You're doing a very good job, Mr Chair.
The Chair: No, the committee is doing a good job.
Mrs Johns: We're once again on page 63 of the bill, page 79 in the motions.
I move that subclause 1(c)(ii) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "a personal assistance plan" in the seventh and eighth lines and substituting "personal assistance services."
We discussed this when we talked about the purposes and it was also outlined by the ONHA --
Mrs Caplan: Agreed.
Mrs Johns: They're just agreeing with it. I don't think I need to read any more.
Mr Marchese: Discussion is useful, Mr Chair. I think the explanation that Ms Johns provides for motions is important, again particularly for people watching these proceedings. It's good to have a rationale for amendments, so I would encourage it.
The Chair: Are there any other comments or questions in regard to subclause 1(c)(ii)?
Mrs Johns: Can I just add into the record then what the ONHA said? Taking from valuable experience in the past, I'll add this:
"By focusing on the capacity for the plan instead of the actual activity, the rights of many residents to make their own decisions about their daily aspects of care could be removed. Nursing home staff have worked hard to help residents maintain as much control over their lives as possible. This includes supporting them to make their own decisions about activities of daily living. We wish to continue this practice.
"With the current draft legislation the substitute decision-maker would consent to the plan and the staff would implement the plan without considering the residents' desires at the time because the activities as listed in the plan have already received consent from the substitute. The act implies that the substitute decision-maker can override an incapable resident's refusal. To best facilitate resident independence the act should focus on specific personal service activities and not on the plan."
We will have a number of amendments with respect to this, and I won't discuss that again but that's why we're doing it today.
The Chair: Shall the amendment to subclause 1(c)(ii) pass? Carried.
We'll move on to 1(c)(iii) as set out on page 80 of the proposed motions. That is a motion to be brought by the third party.
Mrs Boyd: I move that subclause 1(c)(iii) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "and after attaining 16 years of age" in the last two lines.
The rationale for this, we heard a very fine presentation from Mr John Burns, who was talking about the fact that, although we had all agreed and all parties had indicated their agreement with the issue being capacity not age and have taken that out in the Substitute Decisions Act, and it will be taken out later in the act in terms of dropping sections, that that was then taken away by the constant wording throughout the bill about people being capable and wishes being expressed after the age of 16.
Since the issue here is capacity, and I think we're all agreed that the issue is capacity, where we come up against this, and you'll notice that we have a number of amendments, that could simply be deleted, because the issue is capacity.
I quote Mr Burns. He said, "The legislation thereby is biased towards an arbitrary age of consent at 16 years yet capacity not age determines whether a person is capable with respect to consent."
He said later on in his presentation, "Capacity cannot be determined solely on the person's age nor can a mature minor be denied the right to request an alternative medical treatment instead of what the health practitioner wants him or her to have."
I would hope if we discuss at some length this issue and if we come to an agreement, whatever that agreement is, it would then apply throughout the two acts that we're actually -- well, all the consequent ones if there are some in the various facility acts, so we can just discuss it once and can make that decision.
Mrs Johns: As everyone around this table knows, this is a fairly controversial issue, and there's a court challenge in the works at this time. We, as the Progressive Conservative caucus, have been together and talked about this and we believe that we should wait and let the court decision affect the legislation. From our standpoint, we haven't changed what was in the bill when the NDP produced the bill, and we believe that we'll let the courts resolve this issue, so we're going to be opposed to this today.
The Chair: Any other comment or discussion?
Mrs Caplan: The only point that I would make and we have discussed it at committee, I believe that the only place where the age of 16 in Bill 19 is appropriate is for the purpose of making a power of attorney. Other than that, I think silence is best and will lessen the confusion between the Child and Family Services Act and this legislation.
As I understand it, what it means is that under the legislation today a child or an individual who is deemed capable at 15 to make a decision regarding their own care, when they turn 16 and are deemed incapable, the wishes expressed at age 15 are not to be considered. If that's a correct interpretation, I don't see how you can defend that. If they're capable at 15 and they've expressed a wish, why it should not be respected at the age of 16 doesn't make any sense to me. However, if you want to wait for a court case -- would you just tell me if my understanding of what this means is accurate?
Mrs Johns: What legal counsel is saying here is that their wishes will always be considered under 19(2)(a), but they're not binding.
Mrs Caplan: That's what they mean. Whereas if you remove this, they are binding because they were clearly expressed at age 15 and those wishes would be binding. What this says is those wishes are not binding, and I think that's an anomaly in the legislation that doesn't make any sense. Especially since you're prepared to accept those directions at age 15, why you wouldn't respect those upon a one-day birthdate change I always felt was an anomaly in the legislation, and I don't understand why it is controversial, frankly, since we have agreed that the act should remain silent, and you're dealing with someone who's deemed incapable at the age of 16.
However, I'm not going to prolong the debate and the discussion if the government's not going to support it. They've got the majority. I just don't think they've got any rational explanation for why they wouldn't just leave it silent. However, you're the government.
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Mr Marchese: Just a comment on this issue: I understand it's controversial and I also understand that from your point of view there's a court challenge and you want to wait for the results of that. I just want to add for the record that I found Mr Burns's opinion on this, as a legal counsel on these issues, very compelling and very persuasive where he argues that the important principle is capacity, not age. I thought that was a very strong, compelling, persuasive argument. On that basis, I was quite prepared to support it. That's why I would support this amendment. I realize we're not going to convince you on that matter, but I thought the point should be made.
Mrs Boyd: One of the problems with the rationale Mrs Johns has provided for us is that of course if you go ahead with this act as it's written, it will be used in the court on the side of 16 as the age, so what you are doing is skewing a court finding by allowing this to be in the act. You are not standing up for the principle you say you have stated. In fact, what you are doing is giving more ammunition to those who want to restrict the ability to give consent to health care to an age factor as opposed to a capacity factor.
That's a very serious thing to do. It seems to me that the government doesn't have the courage of its convictions on this matter if you are willing to waffle around in this way and allow the various little provisions within the act to take away the issue of capacity. I have all the sympathy in the world with the difficulty you have in caucus and the difficulty you have in some communities around this, because we faced it too.
It is controversial. I'm surprised Mrs Caplan says it's not controversial; it is controversial.
Mrs Caplan: -- agree about silence in the act and everything else.
Mrs Boyd: Exactly, and that is the point. I think you fuel the controversy by having it there at all, and you would be much better to just be silent and the court case will go ahead. If the court finds differently, then the whole act will be interpreted differently in any case, and the rationale you provide just really doesn't hold much water, quite frankly.
The Chair: Is there any other comment?
Mrs Caplan: Just to clarify and make sure that Hansard picks it up, the point I was making was once you've agreed that the act should remain silent on the issue of age, it's inconsistent to have this in place, and that's why I don't think it should be controversial, because you've already made the tough decision by remaining silent on the age every place else. I see you nodding your head. Obviously, you've got an internal problem in your caucus, is the reason for this.
Mr Ramsay: Helen's on side, I think.
Mrs Caplan: But I don't think this is a controversial part of it, and in fact --
Mr Ramsay: The dinosaurs are the problem.
Mrs Caplan: -- I think it says that perhaps people don't understand the implications of this, which is just a little bit of confusion.
Mrs Johns: If we look at, for example, section 19 where we talk for the first time, I think, about being 16 years old, one of the things that would be very difficult and one of the reasons the caucus is hesitant about this is it's very difficult to assess what anybody's capability was in the past, but especially someone who is under 16, for example. So at that point we're saying, what were their wishes in the past, and we should move forward with those. People change, as we all know, from the time when we're young through to 16; at some point in there we become capable of making decisions, and it changes with every person who comes along. My four-year-old is capable of making decisions about some things and not about others, and it ranges through the process all the way past 16. We would all probably agree to that.
What's important here is that when we have to look back and say, "Was this person capable when they were 12 or 13 or 14?" we feel that adds an extra issue that is difficult to assess. That's part of our rationale for it. It just makes the issue more complex. Other members of our caucus could talk about traditional family values, people wanting to be involved in their children's decisions, which doesn't deal necessarily with capacity, but they feel that in some cases they'd like to be involved in their family's decision-making also if they are incapable of making the decision themselves.
Mrs Caplan: I think, actually, that you've made the case for the exact opposite of what you've attempted to do because the legislation today, as it stands, says that the evaluator, the professional, the doctor will be able to make the determination of capability for anyone. We had Sick Children's Hospital tell us that they have young people who come to them with sexually transmitted diseases who are afraid to tell their parents, who are afraid to go to their own family doctor, and this legislation will permit those children to be treated, provided the doctor says they're capable. If they say something to that doctor when they are 15 and 364 days about their wishes and two days later, after their 16th birthday they have a car accident and that doctor says, "This person told me two days ago," those wishes do not have to be respected. That's the effect of this law.
It doesn't say families are going to be involved in decisions with their children when they're under age 16, so to give that impression, I think, is wrong, Mrs Johns. You've made the tough decision, which is the right one, in my view and in our caucus's view. Let the act remain silent and let the health practitioner determine whether or not the young person is able to make that decision and whether or not it is appropriate at that point in time.
You have also said in this legislation, further on under the substitute decisions legislation, that at the age of 16 an individual can write a power of attorney. But what this does is say that if a person, boy or girl, has a car accident the day after their 16th birthday, something they said the day before doesn't have to be binding, when their wishes were clear. That's an anomaly that I don't think is supportable in light of the other aspects of the bill.
If this was a tradeoff within your caucus to say, "We'll let you have authority over those who are incapable because they're unconscious after the age of 16," or deemed incapable because of some other reason the day after they turn 16, and you think you got some satisfaction to the people in your caucus who believe parents should be able to have total control over all their children's decisions up to the age of 16, they don't have control, not when the child is deemed capable by a physician; only when they're deemed incapable. It just seems to me that you have an anomaly and that you're inconsistent in trying to defend this. I think you'd be better off to not try and defend it and just say, "We're leaving it to the courts."
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Mr John L. Parker (York East): I didn't intend to participate in this discussion, but I think some points have been raised that require that I address them. There's been some speculation as to the motive behind the government's position on this point and I will give you my position on this point. I submit that this reflects the government's position as well, but I won't presume that; I'll just give you my point of view. It's been suggested that depending on the riding we represent or the area we represent or the constituency we represent, our attitude is likely to be different. With that in mind, I'll just declare that I represent the riding of York East, which is an urban Toronto riding, for what that's worth.
I support the original wording in this bill and I do not support the proposed amendment. I see no inconsistency in the government's position on this issue throughout the bill. I think we are dealing here with more than strictly the issue of capacity. We have to consider also the issue of maturity of judgement. A 16-year-old or a 15-year-old or a 14-year-old or a person of any age may be capable of having matters explained to them in terms that they can understand and arrive at a reasonable judgement as to the merits of the alternatives being presented, and be capable of consenting to a particular course of action, and may have the capacity to give instructions when properly advised.
With that in mind, we have deleted any reference or we have omitted any reference to age when it comes to matters of capacity. We've said you take each case as you find it, and if you're dealing with a person with capacity, then you take instructions from that person. If you are dealing with a person who does not have capacity, then you look somewhere else for instructions. But you don't look at the age as a factor, you look at the individual. That has to do with on-the-spot instructions, the capacity to give instructions at that time. In this provision, however, we are not talking about that. In this provision we are talking about dealing with a person who at the moment is not able to give instructions, for whatever reason, and we are looking for reference points to guide us as to how to make a decision on that person's behalf.
We have provided in this bill that the prior expressed wishes of someone, the wishes expressed at any time in their life, will be considered, but they will not be binding if they were made prior to the age of 16. What's the reason for that? The reason is different people have different points of view on different subjects at all different times, and over the course of one's lifetime, as one's experience in life increases --
Laughter.
Mr Parker: I hear some laughing on the other side. I suppose they're referring to the Liberal Party, which seems to have different points of view at any day of the week or any time of the day.
But attitudes change, opinions change and one's judgement changes over time, particularly as one's experience with life increases. In the early stages of one's life, one is very susceptible to constant changes of points of view, depending on influences that happen to be brought to bear at any one particular stage along the way. Later on in life, as people have seen more, experienced more, learned more, they tend to be more mature in their judgements, they tend to be more consistent in their judgements and they tend to be more informed in their judgements. This is a matter that progresses over time.
At what point should someone's prior expressed wish be binding? We don't think it's wrong to draw a line. We don't think it's wrong to say: "Before a certain line, we probably shouldn't be bound by a prior expressed wish. Later on, we probably should be. We should probably take the chance that by that stage of the game they've got the maturity of judgement where their wish should be binding."
We happen to have drawn the line at age 16. We can argue about whether it should be 14, whether it should be 18. We've heard submissions on all those points. But I don't think it's wrong to face that issue and to draw the line somewhere. Age 16 is an age that has emerged, in our experience, as an age that makes sense and that's why it's provided for in here.
It has nothing to do with capacity to make a decision or capacity to give an instruction. It has to do with maturity of judgement and experience in life and the confidence that the person expressing the wish has achieved that degree of maturity in their judgement and that degree of experience where the wish they have expressed can be relied upon as realistically reflecting their real view of the matter after some degree of reflection.
The Chair: I take this opportunity to introduce, on behalf of the committee, two members who are attending with us today: the honourable member for Sarnia, David Boushy, and the honourable member for Durham East, John O'Toole.
Are there any other comments or questions before we put this matter to the vote? If not, shall this amendment pass?
Mr Marchese: A recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Marchese, Ramsay.
NAYS
Boushy, Doyle, Guzzo, Johns, Leadston, O'Toole, Parker, Tilson.
The Chair: The motion is defeated.
We shall proceed now to clause 1(e), which is on page 81 of your proposed amendments.
Mrs Johns: Page 63 of the bill, page 81 of the motions, clause 1(e).
I move that clause 1(e) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "plan" in the fifth line and substituting "service."
We've had this discussion before.
The Chair: Shall the amendment pass? Carried.
Clause 1(f) on page 82.
Mrs Johns: Page 63 of the bill, page 82 of the amendments.
I move that clause 1(f) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "a personal assistance plan" in the fifth and sixth lines and substituting "personal assistance services."
The Chair: Shall the amendment pass? Any objections? Carried.
Shall section 1 of schedule A pass as amended? All those in favour? Opposed, if any? Carried.
We shall now proceed to section 2 of schedule A, and in particular subsection 2(1), on page 83 of the proposed amendments.
Mrs Caplan: I move that the definition of "evaluator" in subsection 2(1) of schedule A to the bill be amended by inserting after "subsection" in the fifth line "a social worker with the credentials prescribed by the regulations."
The intention here is to make it clear that social workers will be able to be evaluators. Because social workers do not have their own college at the present time, and while we have no timetable from the government, the intention here is to allow the credentialling to be specified by regulation, but to have the act be specific to give comfort to those who are presently able to do this function and, as we heard from many presenters, often called upon to do this function; that there will be no intention that this will be left wholly to regulation to name those in the profession of social work to be included in this legislation. Unfortunately, social workers are frequently left out of health legislation because they are not part of the regulated health professions. We felt it was important that they be actually named in the statute as opposed to left entirely to regulation.
Mrs Johns: We certainly agree with the premise that both the Liberals and the NDP have put forward in their motion that social workers will be evaluators. We have proposed that we would do it differently. I have the draft regulation here that we would present, which says the way we would like to go with it. I would like to pass it out for people to have a look at, if that would be possible. I'll read it as we're going along so it's on the TV:
"1(1) For the purpose of the definition of `evaluator' in subsection 2(1) of the act,
"(a) persons described in clause (a), (l), (m), (o), (p) or (q) of the definition of `health practitioner' in subsection 2(1) of the act may act as evaluators for the purpose of determining whether a person is capable with respect to his or her admission to a care facility and for the purpose of determining whether a person is capable with respect to a personal assistance service;
"(b) social workers are evaluators who may act as such for the purpose of determining whether a person is capable with respect to his or her admission to a care facility and for the purpose of determining whether a person is capable with respect to a personal assistance service.
"(2) In this section,
"`social worker' means a member of the Ontario College of Certified Social Workers.
"2. This regulation comes into force on the day subsection 2(1) of the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1996 comes into force."
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Mrs Boyd: We would certainly agree that social workers need to be covered in some way. You had me until you came to your section 2 in your regulations, because your section 2 is a de facto acceptance of the Ontario College of Certified Social Workers as the only body representing social workers. Their requirements are that somebody have an MSW and be certified by their particular college. Many of the people who make these assessments are people who have BSWs or have college diplomas in social services. I think you will find that if you look at who is actually doing that. What this means is that only people who meet the requirements, which are very high and frankly a gatekeeping requirement on the part of the college of social workers, would be able to make this decision. I'm not sure that you really want that.
It is true that most large hospitals will only hire people who have an MSW and who are certified. But your thinking -- because it's services and facilities of many situations, in which the person would not necessarily have those requirements and where the college of social workers has no legislation covering it in this province, and largely because of this problem -- would cut out and would make it difficult for many, many social service agencies which in fact have people who are considered qualified by virtue of their particular qualifications who don't meet the certification requirements of the college. That's an argument for another day, whether or not those requirements ought to be accepted.
This is such a thorny problem that in all the discussions that went on for 10 years around the registered health care professions, no party, in fact no government, was able to come up with a way of dealing with this issue, because large numbers of people who would not be accepted by the college in fact work for government agencies. It really creates difficulty, and that was certainly the problem that we faced, it's certainly the problem that the Liberals faced as we went through it, and frankly they would have been certified long ago if the Conservatives had faced the same issue when they were in power.
So I think, although I understand what you're trying to do by your regulation, what you are going to do is, again, cut out a whole group of people who often do those evaluations, and I don't think you want to do that. We need to know that for people who are members of the Ontario College of Certified Social Workers -- although I'm not sure that's what they call it. I think they just call it the college of professional social workers. I think you've even got the name wrong. I think it is the college of professional social workers, but I'm not certain about that. They do certify social workers, but I think they call themselves the college of professional social workers.
I think we need to be very clear that from their perspective they believe that with the ethical requirements they require of their people, the code of ethics and so on, they are the only ones that should be recognized as doing this work, and they will make a very strong plea in that regard. The problem for you is that you're caught trying to put into place an act when the other discussion, frankly, hasn't been joined. I'm just wondering if there's some way we can work around this.
Mrs Johns: Do you want a recommendation, then, for that section? I could talk to the Ontario Association of Professional Social Workers and try to come up with a different label if someone doesn't have one at the table.
Mr Marchese: As a suggestion --
Mrs Caplan: I think I'm next.
The Chair: Yes, you are. Mrs Caplan is next, thank you.
Mrs Caplan: Actually, I think that Mrs Boyd puts the case extremely well and is very accurate in her portrayal. It's one of the reasons, in fact, that we brought forward this amendment, because a BSW is a social worker. They have a degree in social work, and it is not defined narrowly.
The problem with doing it by regulation, as you have, without anything in the context of the act is that you in fact open that can of worms in the fight between the professions. If the statute says "social worker," then, by regulation, you can define what's appropriate for an MSW, what's appropriate for a BSW, but you will not be able to exclude the BSWs.
For anyone who remembers, I would hark back to the same sort of discussion that was going on in psychology between the master's degree, the MAs and the PhDs, and the struggle at the committee as we went through that was reminiscent of the 10 years prior to that as well. So anything that can be done to facilitate the intratensions within that complete professional social work, we think will be helpful. That's why we think our amendment is appropriate, because it still allows, by regulation, to define what's appropriate for an MA, what's appropriate for a BSW, a bachelor as well as a master's degree, but because we've specified the words "social work" in the statute, you can't exclude anybody. You can prescribe it by regulation and define it and fine-tune it and be specific, but we think this will be helpful to you in your sorting out of an issue that, as Mrs Boyd says, has plagued all of us, because you'd like to see some consensus.
Frankly I don't think consensus is going to be possible, because the college, for a whole lot of legitimate reasons, holds their view regarding the role of those who hold MSWs. But we believe there is an appropriate role for BSWs to play, and if the statute is clear that a social worker is legitimate, whether it's a bachelor's or a master's degree, that anyone with a degree in social work is a legitimate evaluator, duties to be defined and method by regulation, we think that helps solve your problem.
Mr Marchese: I was a trustee with the Toronto Board of Education for years, and this was one of the issues we dealt with. As my colleague Mrs Boyd said, it's a very difficult issue, because there were a number of PhDs in the field who wanted to say, "We are the only ones capable of doing it," and those with the BAs said: "But we do the same work on a daily basis. Why exclude us?" It was seen as a form of élitism on the part of this particular group of the PhDs versus those who didn't have it, yet the work was the same. The only difference is, "I've got a degree and you don't have the same degree."
It's a thorny issue, obviously, but I think Mrs Caplan's suggestion is a useful one. There are two suggestions. Either proceed with the way it's here and then fix it by regulation in the way you deem it appropriate; or if you didn't want to pass this right way, we could stand it down to allow you some time to reflect on an approach you might feel comfortable with. But to defeat it this way and to present it in the way you suggested would be a problem. Pass it in this form, with the motion as presented, or stand it down and propose different language that gets to the issues raised by the colleagues.
Mrs Caplan: There's a last point I'd make on this issue for anyone who's watching and perhaps wonders what this is about. We're dealing with the issue of the role of social workers, which within the health care field is not covered by the regulated health professions legislation, and you have to then wonder about the accountability. That's the issue here. The reality is that social workers are not in the fee-for-service system under health care, and therefore in order to do this function we're talking about, they would be employed. Not all employers require a master's degree in social work, and that's the reality.
The other thing is, you don't want to arbitrarily impose that. So by going with the regulation you have, you would again be precluding all those who are presently employed, who have a bachelor of social work, from doing a function which they may be doing today quite capably and with accountability to their employer. That's the final rationale. I didn't want anyone to be concerned that you'd have people out there in an unaccountable fashion without the regulation and so forth, and that's why we framed it in the way we have, hopefully so you would consider this as a way to facilitate a problem.
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Mrs Johns: I'd like to make some comments and I think legislative counsel would too, so we can hear all sides of this.
From my standpoint, your motion has the same problem in it, because you have to make a regulation and you have left that to my discretion. In effect, if I change the definition problem, which you have both drawn to my attention -- and I truly appreciate that, because I was unaware that that was only master's people. No one brought that to my attention. You people have been in government for a long time and I appreciate you bringing that to my attention.
We could change my regulation to bring people who are proper evaluators into effect. In the regulation I have proposed, although I have made an error in what I have done with the Ontario College of Certified Social Workers, we have an intent here that we all agree is correct. I should give you an undertaking of some sort that we will put the proper perspective into this, but I want to make sure that I imply here that I'm not going to take just anybody who calls themselves a social worker. There is a level of expertise we're looking at, and we have to work very hard to find the people we want to be evaluators. I think there has to be some level we impose; I don't think we can just take this section out totally.
That would be my third recommendation to Mr Marchese's two others. I would say that we would go back and make some alterations to that section that took into effect what we were all talking about here as a result of your very valid comments.
Ms Halyna Perun: Halyna Perun from legal branch at Health. At page 107 of the bill, if you could take a look at the reg-making powers the act provides, in clause 83(1)(b) it says, "for the purpose of the definition of `evaluator' in subsection 2(1), prescribing categories of persons as evaluators and prescribing the circumstances...." So already there is a power to prescribe the categories of persons as evaluators; you can prescribe a social worker with the following credentials. It can already be done, and that can certainly be addressed in a reg. Again, this is a draft regulation, and that could be worked out with the appropriate college and association.
Mrs Caplan: The concern we have is that by leaving it wholly to reg, by not using the words "social worker" in the statute, exactly what you have done is a more likely outcome. If you're going to give comfort that the statute responds to the concern that was expressed, to leave it to regulations, which can be changed, passed behind closed doors, no scrutiny -- I hope you will accept our amendment later on that regs actually be published so people know what's happening, but there's no requirement in the legislation now for the regs to be published so that anyone is aware of them before they come into effect. The fact that you've tabled the reg with us today is appreciated, but I'd like to see all the regs you've got. Of course, it's unlikely that you'll table all the regs today, although I hope you'll decide to do that.
The process of reg-making is -- I'm not going to use the word "secretive" in a pejorative sense, but it is. It's done behind closed doors, you consult with whom you decide to consult with, and there's no protection for people who are presently working as social workers. We agree that there should be a minimum standard. I want to be clear on that. The concern we have is that the pressures are usually for the maximum standard that excludes and leaves out those who are properly qualified.
It's one of the other reasons we think there should be some kind of consistent training program for evaluators as well as, and a separate one for assessors, because they have two very different functions. The difficulty you have is that because social work isn't a regulated profession under the Regulated Health Professions Act, they would not be impacted in the same way as the other professions will be, held accountable by their professional bodies. The only accountability is through the employer.
But if you leave them out of the act, I don't think they will have the comfort, especially having seen this reg, that you will respond to the very real issue: What's a reasonable standard? What is a standard that will give access to those people who are already employed and doing a similar function in the field?
Mrs Boyd: If in your reg, for example, you were to say something like "`Social worker' means a person who holds a degree in social work from either a recognized post-secondary educational institution or," probably more appropriately, "an accredited" -- because most social worker programs are accredited. I've been part of the accreditation process at King's College, for example, and it's quite a rigorous process. That might solve your problem.
What you'd have to do, though, is check with the nursing homes and charitable homes for the aged and those groups to see whether they have people who might have diplomas as opposed to degrees in social service work doing some of this work for long-term care. That's the one concern I have. I suspect they might not; I suspect they might have as a minimal requirement at least a BSW, but I think you need to check on that because you might be impacting a whole set of people you weren't expecting to impact. Given, as we know, that the qualifications often tend to be different between acute care hospitals or some of those long-term-care facilities, you might need to check on that.
We will be voting with the Liberals on their amendment because we think it is probably safer. We certainly heard people say, and physicians say, that they would like social workers involved. We will be voting with the Liberals on the amendment, but if indeed we are not successful in getting this amendment in, we would really appreciate some consultation around how to do that reg so you're not condoning the kind of gatekeeping that has been very evident in the applications from this group. You will have to warn the members of your caucus that this is a very powerful and very persuasive group of people. The problem for service delivery is that they are very few compared to the people offering the services, even within your own government facilities, so you need to be really careful on that.
Mr David Tilson (Dufferin-Peel): The debate seems to be the issue of whether all social workers should be included as evaluators or should just those with an MSW be included as social workers. I'm not competent at this stage to enter into that debate, and I suspect many in this room are not competent to enter into this debate.
I understand the intent of the amendment. If you look, as was pointed out by ministry staff, at the regulation provisions on page 107 of section 83 which talk about what can be done by regulation and then look at what the draft regulation is doing, the draft regulation appears to be -- and I'll accept your word for this at this stage, and I guess that's your criticism, that it excludes those with BSWs. That appears to be your criticism of the regulation.
But is this amendment really solving the problem? The debate continues. You're saying, "Let's say that social workers are going to be in there, but we don't know" -- and maybe you do, maybe you're on one side or the other, but you're saying, "Define it by regulation." But that's what we're doing. It doesn't preclude, at a later date, the ministry or Mrs Johns or Mr Wilson from negotiating with the Ontario College of Certified Social Workers. I'm really in over my head on this topic, as to who should be in and who should be out; I don't know.
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Mrs Boyd: Don't negotiate with them or you'll get an answer that's --
Mr Tilson: But that's the issue. We believe there should be a college. I hope I'm correct in saying that. Mrs Johns will quickly correct me. Am I correct?
Interjections.
Mr Tilson: Well, I'm getting all kinds of help on this one. In any event, my question to Mrs Caplan is, aren't you really still saying, "We want social workers in. We're not telling you what to do, but solve it in regulation," which is in fact what we're doing now?
Mrs Caplan: In fact, the answer's no. I think we're being helpful. If you put the term "social worker" in the statute, anyone who comes from an accredited social work educational program would be able to challenge that they should be included and that the reg wouldn't be valid unless they were included. That's the intent. It's not to allow a narrow definition. We think the statute could be challenged if you were too narrow and left out those from accredited programs. Certainly it helps to establish a minimum standard that would allow those who felt they were improperly left out to challenge. Frankly, there are some from programs that are not accredited that I think might challenge and be unsuccessful in their challenge.
But if you have the term "social work" in there, you would at least have a minimum that says, "Those who are accredited have to be" -- because they would have the right to challenge the statute that they should be included, even though the term has never been formally defined; it has plagued all governments. We believe this would help you, in your defining by regulation, to be able to say: "Look, it's in the statute. We can't exclude those who have an accredited degree or come from an accredited program." That's the intent of the amendment, and that's the reason we think having it in the statute would be helpful to you, Mr Tilson.
I'm very sympathetic to the ground you're treading on and the language you've used. We're very aware of some of the minefields out there and what the problems are. In this one, let me tell you, we are trying to be helpful, so that when you ultimately have to deal with the issue of legislation for this profession, this is not a bad place to say, "We've now got a precedent where the term is in legislation."
Mr John O'Toole (Durham East): Just for my first participation in this committee, when I look at that definition in the statute with regard to evaluator, all the other classifications are, by nature, self-regulating groups. It would appear to me that you're being very specific in saying "social work," yet allowing it to define itself in regulation. I think there's a danger in that. It's an admission that there is a problem, because it isn't self-regulating; it hasn't defined itself what constitutes a certified practitioner. I think you're opening up a box which will be challenged, and I think there's enough softness in the regulation itself which would allow them to define more clearly without enshrining it right in the legislation.
They need to address it. All the rest are colleges that are self-regulating. We don't define that because of lack of expertise, obviously. But I'm comfortable with the regulations as they currently read that they could do the job, without making any changes. I personally won't be supporting the amendment, although I appreciate it. I recognize that they should get on with the job of regulating themselves and sorting out whether it's a bachelor of social work or a master's in social work. Who's the most competent is for them to decide, not us.
Mrs Caplan: In fact, it's not. It is for you to decide because you have to bring in the statute that would give them self-regulatory power. That's the difficulty there has been, that it's not left to the profession itself to deal with it.
The Chair: Mr O'Toole has the floor, Mrs Caplan.
Mr O'Toole: I appreciate their feedback. I'll say one thing. Who's to say that somebody with a bachelor of social work is any more competent than somebody with a college program and is a nurse? It's a basket of --
Mrs Caplan: You've promised to give them legislation, and that's one of the issues you'd have to deal with in that legislation. We think this would be helpful to you as you make those decisions. Since you've made the commitment to do that, I suggest you're going to have a good time.
Mrs Boyd: We are really trying to be very friendly to your legislation. The reality is that social workers are not self-governing; they have no statute governing them. If you are today, on behalf of your party, making a commitment that you're going to allow them to be self-regulating, you are stepping into a swamp.
I suggest that what we're trying to do for you is to say you definitely want social workers to be able to be evaluators -- de facto they are in many institutions -- without your getting into having to make a commitment at this point, when you clearly are not aware of all the pitfalls involved, of agreeing that you're going to pass legislation self-regulating them.
We're trying to be helpful. We have been through the wars on this one in our terms of government, Mrs Caplan probably more than me. We want you to note that this is a much bigger issue than you appear to appreciate, and it is very big for government because many of the social workers who are in the employ of government who would be doing evaluations are not recognized by the so-called college of professional social workers, I think it is, as social workers because they do not have MSWs.
All we're trying to say to you is that we know of a problem with this particular college and its self-definition of who is and who is not a social worker, and it would be very helpful for you to have "social worker" in under "evaluator" so it's there, it's enshrined, and then when you come to deal with these problems in regulation, you will already have recognized the reality of many social workers doing evaluations.
The Chair: Thank you, Mrs Boyd. Shall the amendment pass?
Mr Marchese: Another recorded vote.
Ayes
Boyd, Caplan, Marchese, Ramsay.
Nays
Boushy, Guzzo, Johns, O'Toole, Parker, Tilson.
The Chair: The motion is defeated. We will now proceed to the third party's motion in regard to subsection 2(1), as contained on page 84.
Mrs Boyd: This is to the same section in terms of the definition of "evaluator" and again appears in the act on page 64.
I move that the definition of "evaluator" in subsection 2(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "as evaluators" in the last two lines and substituting "who have successfully completed the courses of training prescribed by the regulations."
In other words, it is our belief, and it was the belief of many of the people who came in front of us, that the assumption inherent in this bill that health care professionals are de facto able to evaluate capacity may not be correct, and that what we need to do is have the regulations to this act prescribe what kind of training is necessary to ensure that there is some standard of evaluation applied. We heard many, many people saying, "Do people really have the knowledge that's required to evaluate capacity?" Since we are saying that when people are deemed to be incapable, other people get to make their decisions for them, for all those who might be deemed incapable, they want to have a sense that there is a standard.
It seems to me you'll want to do this anyway, but it would just add some sureness that there will be courses. You still prescribe them by regulation, so you've got lots of time to do the kind of consultation, looking at what has already been prepared by the Advocacy Commission, for example, because they actually do have some of these things in place. Some of the physicians who came had suggestions around evaluation and others felt they were still too complex. But it would give you an opportunity to actually enshrine that, and I sincerely hope you would accept this amendment.
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The Chair: Mr O'Toole has a few short words for us.
Mr O'Toole: Yes, just the same argument that applied in the previous definition. In the regulations now it's not as prescriptive as you're implying, and I personally am a little more comfortable; there are some options. It's "health practitioner or a member of a category of persons prescribed in the regulations" as evaluators. If you look to the regulations, they are less prescriptive and more at the operational level of conducting business in some reasonable fashion. It says, "Prescribing things that do not constitute treatment." That's very broad and less prescriptive.
Mrs Johns: I want to speak to this issue for a second. I want first of all to draw the difference between "evaluator" and "assessor" in this particular case. Unlike assessors, who may have never met the person before, an evaluator in many cases has worked with this person all along the line, maybe a nurse at a long-term-care facility -- has some ability to know the person. I wanted to draw that to your attention first.
They are usually dealing with a discrete issue. One of my notes says: "Capacity determination under part III and part IV of the Health Care Consent Act is not some global assessment of capacity but applies to a discrete issue at hand. Health practitioners and social workers already have the skills necessary to decide on these issues."
I asked the long-term-care branch exactly how they were going to ensure there was a level that was consistent throughout the ministry, that we could ensure evaluators had some commonality, if you will. They have some guidelines they're setting out and working on at this particular point. It's the process for development of guidelines and training materials for evaluators. I'm not sure I should give you copies of this -- I will, but I'll read you what I have right now. I think that would be best:
"The ministry has established a task force to develop guidelines and training materials for evaluators for their use if they are asked to determine capacity for persons to make decisions regarding long-term-care facility admissions or to determine capacity for persons to make a decision regarding a personal assistance service."
I have a number of guidelines and I will copy it, but I was wondering if it would be informative if we brought up the long-term-care person who's working on that, if you wanted to hear anything from them and this task force. That would probably be appropriate.
Ms Anna Burwash: My name is Anna Burwash. I am in the long-term-care policy branch of the Ministry of Health.
Mrs Johns is quite correct that we are in the process of developing guidelines for evaluators. One of the things I'd like to add up front, particularly about the determining capability to make a decision regarding admission, is that what we're trying to do in having the evaluator make his or her decision in this regard is that we're trying to integrate this as closely into the long-term-care facility admission process as possible. We want to make it the least intrusive to the consumer as we possibly can.
What we envision in most situations is that the decision regarding capability for admission will be made by an evaluator in the context of doing a functional assessment, and every long-term-care applicant has to have a functional assessment as one of the pieces of information the placement coordination service considers in determining the applicant's eligibility for admission to a long-term-care facility. We can disseminate the guidelines very effectively because the placement coordination services requests a functional assessment on behalf of each applicant, so we can very easily make sure these guidelines get to the right people. That's one of the things I wanted to emphasize.
In the situation of the personal assistance service, currently this will apply to a long-term-care facility; in the future, it may apply more broadly. In a long-term-care facility, we see that in most situations long-term-care facility staff would actually be evaluators, so again we have the opportunity to disseminate these guidelines very effectively.
Mrs Boyd: I'm delighted. We knew, of course, that guidelines were being prepared and that that was one of the requirements under the long-term-care facility. Guidelines and training in evaluation are two different things.
I'd like to quote for the committee what Judith Wahl of the Advocacy Centre for the Elderly said on this issue because I think it's very important for us to remember what the people coming in front of us said:
"The Health Care Consent Act assumes that all health practitioners are able to assess whether a person is capable with respect to treatment decisions within their particular field of expertise.
"The HCCA also assumes that particular classes of health practitioners, termed `evaluators,' are able to assess whether someone is capable of admission and service decisions. These assessments of capacity for admission and service decisions are not assessments that these health care practitioners would ordinarily do. These assessments are assessments of capacity in relation to types of decision-making outside the field of practice of these health practitioners," and she gives an example.
"The audiologist may be able to assess capacity of a person to consent to treatment related to hearing loss. However, the audiologist does not ordinarily assess a person's capacity to consent to admission to a long-term-care facility," and your act provides for any regulated health care professional to make that decision. It's a problem.
"Health care practitioners ordinarily have little or no training in capacity assessment. This is an area where subjective factors can play an important part in deciding whether a person has capacity."
I would remind the committee that we heard from many members of the public that this is their biggest worry, that people who are not skilled in capacity assessment might decide they're incapable. Indeed, some of the examples we heard of from the rights advisers were situations where a health care practitioner decided someone was capable -- remember the Clemens case; in that case they said he was capable -- or incapable in some other cases, whereas as time progressed and as the board looked at some of these decisions, that was not the case.
The Advocacy Centre for the Elderly made some recommendations to us that I think we would do well to heed. It is recommended that:
"All health practitioners should be trained to do capacity assessments in respect to treatment decisions within their own field of expertise. The training should be part of the requirement to become licensed as a particular health care professional. Existing health practitioners could be provided with training as part of a continuing education program. Guidelines on assessment should be provided either in regulation or in policy," and we know that's the plan you have.
Going on to the issue of admission:
"It is recommended that all evaluators receive training with respect to capacity assessment for the purpose of admission and personal assistance plans and be provided with guidelines for this purpose, either in regulation or in policy. The training could also be part of the ordinary education process to become a particular type of health practitioner for those classes of health practitioners that are listed as evaluators. Existing health practitioners in these classes could be provided with training as part of a continuing education program. As an evaluator is doing an assessment that does not relate to capacity for decision-making within their field or professional expertise, it is also recommended that the evaluator be required to sign a statement at the time the evaluation is done to confirm that he or she has had this training and is qualified to do the evaluation. In this way, those members of a class of health practitioner who are evaluators, who do not wish to perform evaluations, need not take the training and the public will be assured that only persons qualified to do assessments are engaging in this activity."
It seems to me that it is in the best interests of your legislation that you talk about training. It's one of your few ways of levering the colleges, to insist on that kind of training being done for their members. If you say that you're going to prescribe the training by regulation, then you have the opportunity to determine what that training might do in conjunction with the colleges.
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For example, if you are satisfied that all the colleges have complied with this, you might want to say in your regulation that all of the regulated health care professionals, according to the regulations under their particular acts, and then you might want to add social workers separately, but it seems to me that assuring people that training in capacity assessment around these things is very important -- it's very different from guidelines. Guidelines are good. They're necessary. I'm glad that you're as far along with them as you are. That's great. But I do think that you also need training, even to understand some of the concepts probably within your guidelines.
Ms Burwash: I think we're going to try to make our guidelines as practical as we possibly can. For example, one of the other things that we're doing with respect to admission is we actually have a committee that is working on developing questions that an evaluator would ask if the evaluator has reasonable grounds to go that far, because again you have to remember that there's a general presumption of capacity. So in a number of cases, when a person goes into someone's home to do this and it becomes very obvious that this person is quite capable, they're not going any extra steps. What we don't want to do is end up having to send an additional person into everyone's home who is applying for long-term-care-facility admission. Right now, our placement coordination services tell us that somewhere between 40% and 75% of the applicants for long-term-care admission are incapable.
Mr Marchese: I just wanted to bring forward some of the comments my colleague has made, the point about guidelines versus training, because they are very different, and that's the essence of the difference we have with respect to what was being said. Here are your assumptions. This is the way you're operating. The assumption is that all evaluators are capable. Therefore, all they really need are guidelines. We'll make them as good as we can and we'll disseminate them. That's easy. That's not a problem. I understand that. But the worry that some of the deputants had was that training should really be part of what we need to do as opposed to simply just giving them guidelines. Guidelines are useful. They're an important part of what should happen, but what we heard was that training is much more important to them in terms of the security it gives people about the decisions they're making.
The problem is that no one wants training. That's really part of the resistance. Nobody wants to go through a one-day or a two-day course to learn how this happens. They'd much prefer to get some guidelines so they don't have to go anywhere. You read it for an hour and you say: "Okay. Now I've read this, I'm okay. I can do the job." But that's really the problem and that's the concern that people have. If you're going to educate, education doesn't simply happen by a guideline. It happens in training as you're talking to someone who's got a whole range of different experiences. That's why I will be supporting the motion, because it goes further than guidelines. Although guidelines are useful, they're not sufficient.
The Chair: Thank you. Mr Stockwell.
Mr Chris Stockwell (Etobicoke West): No.
The Chair: Oh. The committee welcomes the attendance of the honourable Chris Stockwell.
Mr Stockwell: Thank you so much.
Mrs Boyd: I'd just like to also remind the committee of the very vehement presentation that we had from Dr Molloy, who has very strong views on how complicated capacity assessment can be, particularly in the first instance where we were talking about evaluation. I would agree with him to the extent that he was saying very clearly that we need this to be as simplified as possible so that in fact it is able to be done by a lot of professionals. What he left out was the fact that whatever kind of an instrument is developed or whatever kind of guidelines are developed, people do need training in how to apply those. That's when we get into difficulty, is when we make assumptions that simply because people have training or degrees in one area, they automatically can extend their expertise into other areas. If we remember the Clemens case, folks, we had a decision that somebody was capable and then a whole lot of things followed. That decision could easily have been the other way. There are real issues around how that decision is made, and what follows from that is life-threatening or life-giving in some cases.
Mrs Johns: But that's a treatment; that's not an evaluator.
Mrs Boyd: But admission to a long-term-care facility, for example, if we think of some of the examples that we had. Remember the 92-year-old man. His health care professional decided that because he wanted to walk two miles a day and kept his own garden at 92, that wasn't appropriate. It was too tiring for him and therefore he was incapable of making that decision. Now remember that.
Mrs Johns: But that wasn't for capacity either.
Mrs Boyd: I'm sorry, but they decided that he was incapable, and it was only when the rights adviser told him he didn't have to accept that if he didn't agree with it, that there were steps he could take, he indeed did appeal that. That's the whole issue here. Who is making those decisions on what grounds? Guidelines wouldn't have helped there because this is such a subjective thing, whereas if we really train people that the act is saying people should be independent, they should make their own choices as long as possible -- this is a foreign concept to many health care professionals.
I can tell you, depending on the era of their training, there are many health care professionals who believe that the health care professional always knows better than the patient. You have to retrain those folks into what, in the late 1990s, is in fact the way health care is being provided. Without training, I can assure you that you will run into exactly the same kind of problem and resistance. We are not talking, just to refer to the person from the long-term-care area, of an additional person going into the house; that's exactly what none of us wants. What we want are existing people who are health care professionals or social workers to have consistent training in how to make this decision. That's all we want and we're saying it should be built into the training for health care professionals who are currently training and it should be part of in-course training for people who are actually doing this. If we listen to the Ottawa General Hospital, listen to what the people there said:
"Implementation of the Health Care Consent Act: Thought and time must be given to allow proper implementation of the new law. Health care professionals and their institutions should be provided with practical guidelines" -- which I'm glad to hear you're doing -- "to follow to ensure that the new act is initiated with consistency across Ontario. Time is also needed to educate those who will be using the new law as this will lead to maximum compliance and protection of patients' rights."
We heard that although the assumption was made that the colleges were going to take care of education under the Consent to Treatment Act, that didn't happen and that many of the problems that arose around the Consent to Treatment Act arose because that training was not there and was not made available and was not required. We would not want the government to make the same error that we made in terms of that act, of assuming that the colleges would undertake that voluntarily. They will not.
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Mrs Caplan: I think this is an important point and I'm pleased to hear that you're developing guidelines. I assumed that you would. The question is, how are you going to make sure that self-governing colleges require their members to follow the guidelines and make sure they're part of their professional standards? That's my question. I think it's a very important one, because in self-governing professions they decide. If you think something is important, such as training, then as government you have an obligation to make sure that's clear. There are a few issues that we'll be addressing along those lines, because while I'm very supportive of self-governing professions, I do think they need guidance from lawmakers and those who identify issues which could be resolved through prevention.
We heard from a number of organizations that appeared before this committee that were very clear on the need for some kind of approach to education and training in this area. I'm just going to put them on the record, if I could. "Evaluators should have access to education and should have guidelines with respect to determining capacity" by the Ontario Nursing Home Association. The psychogeriatric community clinic, Victoria Hospital, made the point that, "Only those practitioners who are directly involved in providing care that requires residents in a care facility should be authorized as evaluators." That could be part of your guidelines. I don't know whether it's your intention to do that or not, but I think that the placement coordination people have to ensure that whoever they have working for them meets the guidelines. That's another approach that you could have. As they are the employers, there could be some accountability there.
But because a lot of these evaluations and evaluators for access to care facilities -- that's only one of the responsibilities of an evaluator. The same evaluator can also be making assessments for treatment. So I think you've got to be clear on the differences there. I think the guidelines have to address that. While you will have accountability from placement coordination, if it is a requirement that all admissions go through placement coordination services, one of the things that you do is to say that only placement coordination will have that responsibility and no one who is not connected with placement coordination can do an evaluation for entrants to a long-term-care facility.
My concern is that if you're not going to require the colleges to make sure that their people are properly trained to do this, then how are you going to ensure the accountability? That's my question. How are you going to ensure that the people who are doing these evaluations are properly trained? You can have all the guidelines you want. If nobody's paying any attention to them, there's no accountability, no quality assurance, what are they worth? How are you going to make sure that the people who are doing those evaluations, whether they are for admission to a facility or for the purpose of treatment, are accountable? Unless you're saying that you're going to make this request of the colleges, and I haven't heard you say today that the minister's going to make a formal request to the colleges. Is that your intention?
Mrs Johns: I'll just answer a couple of the questions that you were talking about there.
Mrs Caplan: These are serious issues.
Mrs Johns: I agree that they're serious issues. No one wants to see someone evaluating who doesn't know what they're doing. I think that's one of the reasons why we talked about the minimum standard with the social workers too. I think we're all talking about the same issues.
From my standpoint, having worked in the Ministry of Health, as many people on this side of the table have too, I think that the long-term-care section of the Ministry of Health has a lot of control over the long-term-care facility and what goes on in there. For example, there's the PCS, which is funded by the long-term-care branch. There is also the inspection that happens in the facilities. From my standpoint, I believe that guidelines set out would be followed and would be something that we could monitor to make sure that they are being handled. From my standpoint, I can see what you're saying if it's someone whom we don't have control over and we're not paying the bill, but in long-term-care facilities we are and so there is accountability there on a daily basis.
Mrs Caplan: In fact, you don't have control, because you are simply the funder.
Mrs Johns: We have inspections, though.
Mrs Caplan: You don't have control because these are professionals who are accountable to self-governing professions. Some of them may be accountable to their employer, but they are not accountable to the ministry. That's an important point, to understand how the place functions. The ministry does not -- and I would argue the ministry should not -- have control, which is why you want to set up accountability structures that are in place, but it does not require the centralized control of the ministry. So there's an important role for the colleges to play.
We heard, for example, from the Ottawa General Hospital. They said that it was important to clarify the training of evaluators and the criteria they will use to determine capacity. The Alzheimer Society of Ottawa-Carleton said anyone wishing to be an evaluator must be trained and certified.
I don't think guidelines alone will accomplish that unless the colleges are active in their agreement to ensure that as a standard of professional conduct, anyone who does evaluation has a training or a certification to permit that. Guidelines are fine. But you don't control them, Mrs Johns, and in fact you don't even manage them. They're not accountable to you. They don't work for you. You just pay them, and sometimes you don't even pay them, they're employed by others in the sector. That's the problem. Guidelines don't have to be followed unless there's an accountability mechanism, and that has to include the colleges, for those that are self-governing professions.
So the question is, is the minister going to request the colleges to bring in the requirement as part of their professional standards or establish the programs? I mean, how's that going to happen?
I remember we heard from one presenter -- I don't want to confuse the issue. This time they were talking about capacity assessment. The capacity assessment office has a one-week training course, and they said that was far too onerous for physicians to have to take that course in order to be trained. Well, we know you cannot be a qualified assessor without one week of training, and that training is done through the capacity assessment office. There's nothing comparable to that for evaluators. So right now it's wide open, and that's a real concern.
Guidelines are good for a step, but how are you going to make sure anybody pays any attention to your guidelines is the question, since these people are self-governing professionals who are accountable either to their employers or to their colleges, and if they don't work -- that's why I mentioned the placement coordination service. If they don't work for the placement coordination service and they're doing -- so you want it broadened. How are you going to make sure that you have accountability? That's the question. I don't think it's been answered.
These are difficult and complicated issues, but you're dealing with people's lives. You're dealing with people who are going to be deemed incapable for the purpose of an admission to a long-term-care facility. If you don't think that's going to have an impact on people's lives, it does. So you have to make sure that the person who's doing that assessment, that evaluator, is accountable and properly trained.
Mrs Johns: Just to add to the debate on this, if I might, we believe guidelines are good and appropriate, but I also want to say that there's another step that goes beyond that. The person, if he's found incapable, has the right of review. So from that standpoint, there is another alternative to it if they believe the evaluator hasn't done the job that's the right job.
Mrs Caplan: I'm really glad you raised that.
Mrs Johns: I'm sure you are.
Mrs Caplan: Because that means that you're -- I'm hoping that you'll support our amendment, because the person who is deemed incapable and told that they're -- they don't even have to be told that they've been found incapable for the purpose of an admission to a long-term-care facility, and they don't have to be told that they have a right of an appeal. So if that's your test for "Don't worry, they're going to be able to appeal," there's no obligation.
In fact, the amendment that you brought forward under the category of information, yesterday I read in, and I'm going to say it again when we get to it, and I would ask your drafters to go back to the drafting table, because frankly, the inquest said legislation has to be clear and I would like a legal opinion on what that means when it says under information -- it's not an obligation to inform. I read it, and I said: "How would a court interpret this? Does this have any meaning?" I think it doesn't.
This deals with the issue that you said that people will have the right to appeal while under your legislation nobody has to tell them they've been found incapable, nobody has to tell them they are being admitted to a long-term-care facility and no one has to tell them they could complain about this and go to the board.
The need to have properly trained and accountable evaluators making those decisions that are affecting people's lives is extremely important, and you haven't given us any assurance that there's that accountability. Are you asking the colleges to make sure that that's a matter of their professional standards? Is that your intent?
The Chair: Thank you, Mrs Caplan. That really isn't dealing with this particular section, I don't believe.
Mrs Caplan: Well, it is, because this has to do with evaluators.
The Chair: We're going to deal with that again.
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Mrs Caplan: But that's on the question of information. This question now is, for the purpose of training of evaluators, which is dealing with this section, is it the intention of the minister to request that the colleges include that in their professional standards requirements?
Mrs Johns: The only request that we're going to make of the colleges is the one that we outlined to Michael Dixon. I gave you a copy of that last week and that's gone out to all the colleges outlined in the --
Mrs Caplan: But that has to do with --
Mrs Johns: That's the only request we're making.
Mrs Caplan: So on this one, other than by having a guideline out there, you're not going to require any accountability to the guideline. How are you going to ensure accountability to the guideline?
Mrs Johns: We believe that the long-term-care department of the Ministry of Health will implement this. We also have faith in the professional standards of the people who are working as evaluators, that they will evaluate correctly and that they will do what's right for their patient as part of their oath to their profession.
Mrs Caplan: You've mentioned the words "professional standards," but their professional standards as outlined by their colleges will not reflect that requirement and that purpose. Is that correct?
Mrs Johns: I'm sure there are professional standards for these issues at this time. So from my standpoint, are you saying that I'm going to add new professional standards? No, I'm not.
Mrs Caplan: You wouldn't, but you could request the independent self-governing colleges to ensure that that is part of their professional standard. That's the request.
Mr Tilson: The minister can do that now.
Mrs Caplan: I'm asking, is he going to do that? That's the question. If he can do that, is he going to do that, or are you just going to have a guideline that nobody pays any attention to?
Mrs Johns: Well, we don't believe, Mrs Caplan, they're not going to pay any attention to it. We believe people are going to follow this process of following the guidelines that are set up by the long-term-care.
Mrs Caplan: The only thing I'd say is that we had all kinds of representation to this committee that suggested the need for training, the need for certification for evaluators and a need for that kind of accountability. And I think that while everyone welcomes the guideline, guidelines are meaningless unless you've got some accountability, and I don't think you've satisfied us there is any accountability. I hope you'll reconsider that.
The Acting Chair (Mr Ed Doyle): Are there any further speakers on this issue?
Mrs Boyd: Yes. I'm totally amazed. We thought this would be a very simple addition. We're not discussing here what your regulations are going to be. We're just discussing that there needs to be an acknowledgement in the bill that training on evaluation issues is necessary, and it amazes me that the government doesn't do that. I mean, we spent three weeks listening to people talk about their fears around the real meaning of being able to make their own decisions when there was little control and little training in whether or not people were capable of making those decisions.
I frankly am just stunned that (a) you don't think training is necessary and (b) you're going to say, "Well, the people of Ontario just have to trust that somehow this is all going to work out because all the health care professions have professional standards to cover this." They don't. They don't cover the issue of evaluation. We had lots of professional health care providers come in front of us and say, "We need training in evaluating so that we can in fact follow this law so that compliance will be meaningful."
I'm totally amazed that we've gone on for this length of time with a request that simply indicates the people who do this kind of function should have some training. You still have all the opportunity to decide what that training is, two hours or two days or two weeks or whatever you decide it's going to be, but I'm just absolutely amazed, and I'm quite sure there are thousands of elderly people in the province who are saying: "What? You mean the government is saying that people can decide that I'm incapable of making a decision about going into a long-term-care facility without training? That's shocking."
Anyone who's been through health care professional training in the last 40 years will tell you that in most of the regulated professions, capacity decisions have not been part of their training, not for this purpose. We heard the people from Victoria Hospital, Dr Harris, talk about how difficult capacity assessment is as people become elderly, as there are differing forms of dementia which begin to appear, and we certainly heard health care consumers talk about their fears around these things. So I am quite amazed that this has become an issue and that the government doesn't believe that there ought to be training for evaluators.
I think we should call the question, Mr Chair.
The Acting Chair: I have one more speaker.
Mr O'Toole: Just one comment. It seems to be implied that somehow training is something we're opposed --
Mrs Caplan: Point of order, Mr Chair: A motion to call the question takes precedence. It's not debatable. You have to vote on it.
Mr O'Toole: I'm making a comment on Mrs Boyd's remarks.
The Acting Chair: She said, "I think we should call the question." Did you make that motion?
Mrs Boyd: I did not make that motion.
Mrs Caplan: Oh, I thought you did. Sorry.
The Acting Chair: Carry on, Mr O'Toole.
Mr O'Toole: Just to continue very briefly, I recognize that training is an important part of the assessment process, but it seems to imply that somehow a training level -- that it's an exact science or it's an exacting methodology. Really, that isn't the case, and to imply that training is somehow going to eliminate this ambiguity or the right of appeal of the patient is misleading.
I personally believe that the professional caregivers there, as a team of people, would certainly go through an assessment exercise, and to imply that one single person with a specific and appropriate training would be somehow competent over the rest of the caregiving community would be misleading. To think that we could just pull out a master of whatever degree and say that that's a competent level of assessment, bingo, you have the answer, it's not that simple.
Mrs Boyd: I think Mr O'Toole should understand that in fact that is the effect of the current legislation. It says that any health care professional is de facto able to make an assessment of capacity. That's what we're objecting to. We're saying that in fact that degree does not give them that, and all we're saying is that if people are going to make evaluations on this, they need specific training in this. They don't get it with their degrees. You just simply made my point. I am agreeing with you absolutely, that just because somebody holds a particular degree does not give them the ability to make that determination properly. All we're saying is that you as the government ought to be requiring that whatever you decide by regulation is the appropriate course of training, it is required before someone does that. That's all we're saying.
Mr O'Toole: I don't know if you're reading the right --
The Chair: I'm sorry, I didn't recognize you, Mr O'Toole. Mrs Caplan.
Mrs Caplan: We don't have the regulations before us, but in fact you have made the point exactly that Mrs Boyd was trying to make. And frankly, if you had answered my questions in the affirmative, that you were going to request the colleges to do this, then I would be quite comfortable to not support this amendment. But given the fact that you have not assured us that you're going to engage the colleges in making sure their professionals are trained as a matter of their professional standard, I have to support this amendment, because it's the only way I can send out a message that says that I think those people who are doing evaluations that will have an impact on people's lives should be trained is by supporting this amendment.
Now, I don't think this amendment is necessarily the only or best way of accomplishing that, but you haven't given me any confidence that you have any other plan that will hold people accountable to a standard, as opposed to a guideline, that could -- I mean, you say you believe everybody is going to obey the guideline. The reality is this is not a perfect world, and unless you have accountability in place, people will not always live up to the high standard that you hope they will. Unless you have some kind of a commitment from the colleges that they are going to train their professionals to be able to do this, we know that employers may expect that professionals will be able to do this, even though they haven't got the training, and the reality is that there are many people out there now who will be doing this in good conscience who are not properly trained. So you have to give us some assurance that you're going to do something in the area of training and accountability. I'm going to support this because you haven't answered any of the questions that would suggest that there is a better alternative.
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Mrs Boyd: Call the question.
The Chair: Excuse me. You cannot call the question, unfortunately. If you do that, we will have a problem. May I point that out to you?
While we have a moment, perhaps I might basically tell you what the clerk advises. If I attempt to move to the question, that's okay, but if someone from the floor calls the question, we must go on that matter to the whole section, which will eliminate consideration of the following amendments, and I know we don't want to do that.
Mrs Boyd: Thank you, Mr Chair. I appreciate that.
The Chair: But since no one else is on my list, perhaps I could go to the question now. Shall the amendment carry?
Mrs Boyd: Recorded vote, please.
Ayes
Boyd, Michael Brown, Caplan, Marchese.
Nays
Boushy, Doyle, Johns, Leadston, O'Toole, Parker, Tilson.
The Chair: The motion is defeated. We have seven minutes before 12, so we can proceed to the government motion on 2(1), which is contained, I believe, on page 85.
Mrs Johns: It's on page 65 in the bill and it relates to subsection 2(1):
I move that the definition of "personal assistance plan" in subsection 2(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out.
I think we talked about this yesterday, and if anyone wants to have discussion again, I will be happy to do that, but we're following through with the College of Nurses and a number of different groups who suggested this.
The Chair: Shall the amendment pass? Agreed? Any in opposition? The motion is carried and the amendment is carried.
I take it we have a second one dealing with the same subsection on page 86, Mrs Johns.
Mrs Johns: It's not exactly what you expressed, Mr Chair, but I'll go forward anyway. It's on page 86, and page 65 in the bill:
I move that the definition of "personal assistance service" in subsection 2(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"`personal assistance service' means assistance with or supervision of a routine activity of living, and includes a group of personal assistance services or a plan setting out personal assistance services to be provided to a person, but does not include anything prescribed by the regulations as not constituting a personal assistance service."
I guess we should probably talk to this motion. What we have done that is different in this motion than was somewhat suggested when we talked about the purpose clause that the NDP brought forward was that we changed activities of daily living to routine living, if you'll remember the argument on that, as a result of not necessarily every day. Service providers have indicated that the concept of routine activities of living is well understood and that the examples are unnecessary and can be confusing, for example, the reference to health care when there is a separate part of the act dealing with the treatment.
We have support for this change from the College of Nurses, the Ontario Hospital Association, the Ontario Nursing Home Association, the Ontario Association of Non-Profit Homes and Services for Seniors, the Alzheimer Association of Ontario and the Ad Hoc Coalition.
Mrs Boyd: We certainly don't object to the part of it that now describes this as a personal assistance service and so on, but what we do object to, and what I find hard to believe all those associations are in favour of, is taking out some of the detail, the examples.
The definition that is being struck out by this motion reads: "`personal assistance service' means assistance with or supervision of a routine activity of living, including one that relates to a person's health care, nutrition, shelter, clothing, hygiene or safety, but does not include anything prescribed by the regulations as not constituting a personal assistance service."
We have had many, many discussions around some of the issues about what constitutes "routine personal services," and we agree with the government's position that we need to move to that -- and our next amendment actually was wanting to talk to daily living and we're quite happy to leave that -- but we do believe that you have to tell what is included. That was a confusion for a lot of people. In fact, it has been a bit of a confusion among us on the committee at times, what constitutes a routine activity and what is treatment. We certainly agree that there needs to be some definition between those routine activities and between treatment.
I would ask the parliamentary assistant -- given the discussions that we've had about some of these elements of personal services, I really believe that we need to have inclusion of some of those activities at least as examples, and they could be specified as just examples so that it wouldn't necessarily include all of them. Those, I would say, must have hygiene, dressing, ambulation, washing, eating, drinking, grooming, elimination, positioning; those are all very important.
In my experience -- and it's fairly lengthy -- with some of the care facilities, if you don't specify that people get to participate in some of these discussions, for example around positioning -- for many disabled people positioning is the most important thing; positioning in a chair, positioning in bed, because they spend many hours sitting in the same position unless people move them. It's a fine line between personal assistance service in positioning and when that has to become treatment for a decubitus, for a bed sore.
We've had a lot of discussion around nutrition and hydration and around the need to keep people as independent as possible. If you read the article that was provided in response to the gentleman who came and spoke to us about some of the real problems faced -- the abuse problems faced in nursing homes, for example -- you will know that one of the issues is whether or not people are moved, whether in fact they're encouraged to walk. This is not an easy thing to do, and yet the whole gist of this bill is to keep people as active and as independent as possible. These personal assistance services are crucial to fostering that.
I wonder if I could ask the parliamentary assistant why those examples that were there -- and safety was one of them, and we didn't include it in our amendment and should have -- aren't being described at least as examples, if not a totally inclusive list?
Mrs Johns: I think what we were trying to do was to not eliminate any specific thing and we felt that we would endanger, that they would say, "Okay, this is the list of items." We really believed that when we took in activities of routine living, that definition was fairly well understood and people would take from that elimination, positioning, and that actually when you set up a list, you open yourself to the fact that those are the only items people will consider. That was our rationale for it.
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The Chair: It's now 12 o'clock and a suitable time to recess. Mrs Boyd wanted to speak in any event. We have a subcommittee meeting for 10 minutes, so if we recess till 1:30, I'd ask --
Mr Tilson: Mr Chair, we're not making much progress with this bill and I'd recommend that instead of lunch being an hour and a half we restrict that to 45 minutes.
The Chair: Is there any objection to 45 minutes?
Mr Tilson: You should be able to have lunch in 45 minutes.
The Chair: Back at 1 o'clock?
Mr Tilson: Yes.
The Chair: I think we need unanimous consent to that. At 1 o'clock, the subcommittee was supposedly meeting for 10 minutes. Is there unanimous consent on meeting back here at 1 o'clock?
Mr Ramsay: As long as we adjourn at 5.
The Chair: Thank you, Mr Ramsay. The question I'm asking, however, is, is there unanimous consent that we meet back here at 1 o'clock? If there is not, then it will remain 1:30. Is there objection to meeting at 1 o'clock, recessing till 1?
Mr Ramsay: Yes, there is, unless we have agreement that we adjourn at 5.
Mr Tilson: I move that this committee adjourn for lunch until 1 o'clock.
The Chair: Questions or comments? Shall we have a debate on that topic?
Mr Tilson: There's no debate on a motion for adjournment.
The Chair: It's a recess. There is debate on this one.
Mr Tilson: You're right. A motion to recess until 1 o'clock.
The Chair: If there's no debate -- Mr Ramsay.
Mr Ramsay: Could I move a friendly amendment to that?
The Chair: It depends how friendly you are with Mr Tilson.
Mr Ramsay: And that we adjourn at 5 o'clock.
The Chair: Do you accept that?
Mr Tilson: I'm not too friendly with Mr Ramsay just now; perhaps later.
Mrs Caplan: This is ridiculous.
Mr Tilson: I agree it's ridiculous. Let's adjourn until 1 o'clock and get on with the business of this committee.
The Chair: We do not have unanimous consent for that. We have a motion and we have an amendment. Was that a formal amendment, Mr Ramsay?
Mr Ramsay: Yes, it was.
The Chair: Mr Ramsay has moved that we adjourn at 5 o'clock this afternoon. All those in favour of that amendment?
Mr Marchese: We're speaking to it, Mr Chair.
The Chair: You're speaking to Mr Ramsay's amendment?
Mr Marchese: To the motion. I had my hand up to speak to the motion, the amendment, the whole motion, the whole thing.
The Chair: Right now what we have on the floor is Mr Ramsay's amendment. Please speak to it, Mr Marchese.
Mr Marchese: I'd like to simply ask the subcommittee to deal with the issue of time. I thought we had dealt with that when I spoke to Mr Tilson. I'm surprised to have seen this motion. It's painful to have to do this over and over again. The subcommittee's meeting to deal with the issue of time. Could you do that as a subcommittee? Can we leave the time as we have agreed before -- hopefully, the mover will withdraw it -- and have the subcommittee deal with this issue? No one here is preventing discussion on these issues. We hope to finish all of the amendments by Thursday. The motion almost attempts to say that we're not trying to get through these amendments, and we are. Could I ask the mover to withdraw it, and to withdraw the amendment, and the subcommittee to deal with these issues?
Mr Tilson: We've got 75 amendments to go through.
Mrs Caplan: Relax.
The Chair: Members, we all have low blood sugar before lunch. Mr Tilson, will you withdraw your motion, and we'll let the subcommittee deal with it?
Mr Tilson: It seems to me, Mr Chair, we want to know when we're coming back. I'm suggesting we come back at 1 o'clock and that the subcommittee could deal with Mr Ramsay's concern, as Mr Marchese had agreed.
The Chair: Mr Ramsay, are you withdrawing your motion?
Mr Ramsay: Is he withdrawing his?
The Chair: No.
Mr Ramsay: Well, I'm not withdrawing mine, no.
The Chair: Okay. Since no one has their hand in the --
Mrs Caplan: I did.
The Chair: Mrs Caplan. We will not get lunch at all if we continue at this rate.
Mrs Caplan: That's fine. Look, Mr Chairman, I think there's an important issue here, and it really is how this committee functions. On behalf of our caucus, and certainly from what I've seen around the committee, there is nobody attempting to deliberately delay this legislation. We believe it can be and will be properly completed. There are some important issues here, and we have only been debating those issues that are of real importance. For you to place a motion like that suggests that somebody is attempting to delay and that there is insufficient time. That is not the case. That is unnecessarily antagonistic. This bill has not been time-allocated. If it is not completed on Thursday, the time will have to continue to do that. We have no intention to prolong this and I would suggest to the parliamentary assistant who has carriage of this that it is not necessary to antagonize this committee. If you want cooperation, you'd do much better --
Mr Tilson: Don't be so sensitive. I'm just suggesting --
Mrs Caplan: Well, let the subcommittee deal with that.
Mr Tilson: -- that instead of taking an hour and a half for lunch, that we take an hour for lunch. Don't be so sensitive.
Mrs Caplan: The way to deal with that is by having the subcommittee, who normally deals with those matters, deal with it as opposed to creating a situation where you want this motion to be debated. That doesn't do well for the atmosphere of this committee --
Mr Tilson: I heard you. Neither are your comments right now.
Mrs Caplan: We're asking you if you would just withdraw your motion, then we wouldn't get into this, or else accede to the amendment that has been placed and we'll get on with it. You're suggesting something that just isn't so.
Mr Tilson: I'm not suggesting anything.
Mrs Caplan: You are.
Mr Tilson: I'm suggesting that we adjourn for lunch until 1.
Mrs Caplan: Then, Mr Tilson, what I would suggest is that if you want that to occur, you think about how to go about it in a way that is not going to make this committee antagonistic towards you. You're doing a very good job right now of making sure that this committee doesn't get lunch at all. I'm quite prepared to sit here to explain to you the fact that you're not being helpful.
Mr Tilson: I don't need any lectures from you, Mrs Caplan. Let's make that perfectly clear. Stop lecturing me.
Mrs Caplan: Mr Tilson, then I would suggest that, as parliamentary assistant who has carriage for the legislation, you consider your motions and what the effect might be on the committee and if you don't want a lecture, don't do anything that's going to provoke me.
Mr Tilson: And don't provoke me.
The Chair: Thank you, Mr Tilson and Mrs --
Mrs Caplan: Then withdraw your motion.
Mr Tilson: I'm getting ticked.
Mrs Caplan: So am I.
The Chair: We have an amendment of Mr Ramsay's on the floor. Are there no speakers to that amendment? That amendment is to adjourn at 5 o'clock. All those in favour of that amendment. Five. All those against that amendment. The amendment is defeated.
We have a motion on the floor by Mr Tilson to recess this hearing until 1 o'clock this afternoon. All those for that motion. All those against the motion. It's carried. We're recessing until 1. And the subcommittee should meet, please.
The committee recessed from 1207 to 1302.
The Chair: I call the committee to order. We were debating a motion amending schedule A of the act, shown on page 86, and our deliberations will continue. Mr Marchese, I had you down on the list.
Mrs Johns: Mr Marchese is deferring to me, I think, for a minute, if you can do that. I have a replacement motion on this. I would like to either stand down ours or withdraw ours and then put this new one in. If you could tell me the wording of that, I'd be happy to mimic it.
The Chair: You withdraw the one on the floor and then you remove the new one.
Mrs Johns: I'd like to withdraw the motion on subsection 2(1) on service-related activities of daily living and then I would like to make a motion with respect to the one that is being handed out at this particular moment. So this would be the new page, 86A, that you're getting, and it still relates to page 65 in the bill.
I move that the definition of "personal assistance service" in subsection 2(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"`Personal assistance service' means assistance with or supervision of hygiene, washing, dressing, grooming, eating, drinking, elimination, ambulation, positioning or any other routine activity of living, and includes a group of personal assistance services or a plan setting out personal assistance services to be provided to a person, but does not include anything prescribed by the regulations as not constituting a personal assistance service."
Mrs Boyd suggested that there were some things we needed to put into our amendment that would make it more plausible, so we have done that. My reasoning for the "routine activity of living" still stays the same. I appreciate the suggestion from her.
Mr Marchese: I find the new motion useful. I think it's important when the parliamentary assistants do these things, because although you were arguing earlier that if you provide a list it then makes it difficult in terms of what's excluded or not included, what you've done here is to mention some and then say "or any other routine activity of living," which I think takes care of the concerns raised by my colleague and the concerns you were raising. I find this a very useful way of dealing with people's concerns as opposed to simply saying no to them. So we appreciate your amendment.
The Chair: If there's no other discussion in regard to that, we have Mrs Johns's motion on the floor. All those in favour of the proposed amendment? All those against? The motion is carried.
We are now proceeding to a motion which is contained on page 87 of your proposed motions.
Mrs Boyd: I'd like to withdraw this motion, given the previous motion passed.
The Chair: There's no need to withdraw it, I'm advised by the clerk, simply because it has not been formally moved. We'll just go on to the next. We are now dealing with a proposed amendment on page 88.
Mrs Johns: This is on page 88, and we're dealing with page 66 in the bill.
I move that subsection 2(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following definition:
"`recipient' means a person who is to be provided with one or more personal assistance services,
"(a) in an approved charitable home for the aged, as defined in the Charitable Institutions Act,
"(b) in a home or joint home, as defined in the Homes for the Aged and Rest Homes Act,
"(c) in a nursing home, as defined in the Nursing Homes Act,
"(d) in a place prescribed by the regulations in the circumstances prescribed by the regulations,
"(e) under a program prescribed by the regulations in the circumstances prescribed by the regulations, or
"(f) by a provider prescribed by the regulations in the circumstances prescribed by the regulations."
We have changed this as a result of the many comments we heard that we should look further at part IV and expand. That's what we're doing here, allowing the capability to be open for consideration.
Mrs Boyd: I have a question. I mean, I don't know how else you'd do it. I assume this is to provide for people who are in home care or some of the residential care facilities that are unregulated, that sort of thing.
Mrs Johns: Correct.
Mrs Boyd: So in your regulations, you would be defining that in such a way as to prevent the false creation of care facilities? There's a real problem here that in terms of when things are unregulated, as Dr Lightman pointed out, particularly in situations where, at least according to the act as you have it, people might be able to run one of those facilities and also do the guardianship for property, the possibility of fraud is fairly large. So in the regulations, when you're prescribing these places and these programs and these circumstances, you'd be mindful of that, you'd be trying to prevent any of that problem from occurring?
Mrs Johns: I think that's a really important consideration. As we've talked about how we could move forward, we understand that we have to proceed very cautiously with this and we're going to have to consider every small avenue and decide how we can do that. So this is one of the areas I don't have regulations on, because we have a lot of thought process to go through with this, we have a lot of focus groups and consultations that we have to look at. We just didn't want to have to go back and open the legislation. But this won't be happening tomorrow or the next day; we have a long way to go.
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Mrs Boyd: Except I would hope in terms of home care, which then is the real issue, because there are so many people who are out there now living at home who are under both treatment and routines of daily living, or whatever we're calling it, who would normally come under this act; we would want them to. I understand that's the real problem, how to be inclusive without being too regulatory. I really do appreciate the problem. So I'm not objecting to it; I'm just drawing our attention to the fact that it sounds extraordinarily wide open right now. As it appears, people could say, "My goodness, this could be virtually any place," and, "What does that mean?" I think we need to be mindful of that.
Mr Ramsay: I'd like to ask the parliamentary assistant, what is the difficulty of spelling out specifically that the recipient could be a person receiving care in their residence? Why are you leaving it so open-ended, through regulation?
Mrs Johns: I just have to ask you a question to be able to answer that question. We changed from "resident" to "recipient" as a result of the fact that the person didn't necessarily have to live somewhere.
Mr Ramsay: Exactly.
Mrs Johns: We heard a lot of people talking about different places, different facilities, if you will -- and I want to use the word very loosely --
Mr Ramsay: And circumstances.
Mrs Johns: -- that we should be considering so that consent would kick in and protect some people along the line in different areas. We haven't really gone through and considered all of the alternatives to that, but at this point we wanted to recognize that people had said that. As Mrs Boyd correctly points out, home care was one of the places we were eliminating. "Private facilities" was something that people suggested, and I just don't know how we would proceed forward on that at this particular point, but people are talking about it over at the ministry. There are a number of issues that were raised that we think the Advocacy Act and the Health Care Consent Act may assist, but we're unsure about how we will proceed. So that's why we've left it so open.
The Chair: Is there any further comment?
Mr Michael A. Brown (Algoma-Manitoulin): I'm having some difficulty following this. You will be changing the word "resident" to "recipient"?
Mrs Johns: Correct.
Mr Michael Brown: Are we therefore taking "resident" out of the definition?
Mrs Johns: That's in the next motion we'll be doing.
Mr Michael Brown: Okay. I should read forward then.
Mrs Johns: No, no. You can't read forward too far. I'm just stepping ahead because of the question.
Mr Michael Brown: So anywhere that it presently has the word "resident," we will now see "recipient"?
Mrs Johns: You'll hear me make a motion about 25 times this afternoon to change the wording in each specific case, because we can't do it globally. So you'll be hearing that a lot this afternoon.
Mrs Boyd: But I suppose we could come to an agreement here, as we did around the "personal care services," that we wouldn't discuss it every time.
Mrs Johns: Yes, exactly.
Mrs Caplan: That's right, because we wouldn't want to hold up Mr Tilson in any way.
The Chair: Is there any other comment? If not, shall the amendment pass? All those in favour? Any objections? That motion has carried.
Subsection 2(1), Mrs Johns once more.
Mrs Johns: We're on motion 89 on page 66 of the bill, and I'm amending subsection 2(1).
I move that the definition of "resident" in subsection 2(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out.
Mr Brown and I just talked about that.
The Chair: Shall the amendment pass? Any objections? It"s carried.
Moving on to 2(1) on page 90, Mrs Johns again.
Mrs Johns: Page 90, page 66 of the bill.
I move that clause (a) of the definition of "treatment" in subsection 2(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "plan" in the fourth line and substituting "service."
We've talked about that already. This is a consequential amendment.
The Chair: Shall the amendment pass? Any objections? Carried.
Mrs Boyd has a motion on page 91, I believe. Please proceed, Mrs Boyd.
Mrs Boyd: I move that the definition of "treatment" in subsection 2(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out the portion before clause (a) and substituting the following:
"`treatment' means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes any controlled act within the meaning of section 27 of the Regulated Health Professions Act, 1991, a course of treatment or a plan of treatment, but does not include,"
That's the end of the motion. The purpose for that is to ensure that we clearly are tying controlled acts under the Regulated Health Professions Act to treatment, that anything that is a treatment is in fact a controlled act. That would deal with some of the issues that arose from various of the deputants around what was a treatment and what was not.
Some of us were rather concerned, for example, when the dental people came forward and were trying to suggest that some of the dental treatments that are controlled acts under their act were routines of daily living as opposed to treatment, and in fact we don't believe that's the case. That's just one example.
The issue that was raised most often was the issue around restraint and how that issue applies if it's not under the controlled acts under the RHPA. So that's the gist of our amendment.
Mrs Johns: I had some trouble with this amendment, so I went to section 27 of the RHPA to see what it said. Just for members who may not know, it talks about, "No person shall perform a controlled act set out in subsection (2) in the course of providing health care...to an individual unless, (a) the person is a member authorized by a health profession act...." or the person delegates to someone else, ie, a doctor delegating to a nurse. You correct me if I get any of these wrong.
Then it talks about a controlled act and it goes through what they define as controlled acts. They talk about communicating to an individual or his or her personal representative a diagnosis; it talks about performing a procedure on tissue below the dermis; it talks about setting or casting a fracture; it talks about moving the joints of the spine; administering a substance by injection; putting an instrument, hand or finger into an ear canal, and then it goes on to other ones, nasal passages. Then it goes on to some of them that become more complex for me to understand: applying or ordering the application of a form; prescribing, dispensing, selling; eye care problems.
So I tried to think about that with respect to our treatment. One of the things in our treatment evaluation that we were trying to come up with was the difference between a treatment that was high risk, that we needed to set out as being something that needed consent to, and low-risk items. As I went back to this section, some of those things seemed pretty low risk to me. I guess they could move depending on the person and the analysis but, for example, removing ear wax from someone seemed fairly low risk to me. I felt that probably wasn't what the intent of the act was to do, to tie consent to some of those issues. I may misunderstand, but I don't think tying the controlled acts into this is something we would have wanted to have happen with treatments being ranked by high and low risk.
Mrs Caplan: I wasn't going to speak to it, but given your explanation, I think we need a little additional clarification, because in fact the list that you read out under the Regulated Health Professions Act are the risks which are considered harmful. Anything that is harmful is a controlled act under the regulated health professions legislation. Anything that is not a controlled act can be performed by anyone and it is not considered a risk of harm.
I want to be helpful here. Frankly, the concern that I have with the legislation is not the phrase that's in your legislation, and I don't think the amendment as put, as well-meaning as it is, is necessary. The concern that I have is around the low-risk treatments which are excluded, and we have an amendment later on for how to deal with that. But I think your explanation's a little confusing to people who are watching because under your definition of "treatment" it should capture everything that is harmful and it should capture everything that's in the regulated health professions legislation already. So I really see the NDP amendment as being redundant. That's why I'm not going to support it.
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Mrs Boyd: If indeed it is redundant, that's one thing, but this issue of high risk/low risk is of real concern to us. We believed that this was the way to define those two things. It is not my belief necessarily that the removal of earwax is a low-risk issue. People's eardrums can be damaged in that process. That's why it's --
Mrs Caplan: In fact, it is a high-risk procedure. It's listed under the controlled acts. If I can have the floor for a minute, that's why I clarified, because I think that Mrs Johns's example wasn't the best example.
Mrs Boyd: What we were trying to say was anything that does convey risk ought to be considered treatment in that same way, and that comes down to that fundamental disagreement about whether you just allow things to happen to people without their consenting to it because some health professional decides it's a low risk. You say you want flexibility in that. Well, quite frankly, to hear people talk about aversive shock therapy, it's low risk. Quite seriously, it depends on the health professional and what they're trying to convey as high or low risk. And it's the very flexibility and the lack of certainty about what could happen to someone without their consenting to it that is our concern.
Mrs Caplan: To be fair, I think if we're going to have the debate, we should deal with items that are considered by the legislation. For example, the use of shock therapy is not covered by the Regulated Health Professions Act and it is a very different and separate example from the kind of normal treatment that would be provided. So just as I don't think Mrs Johns's example was a good one, I don't think that example is helpful to the debate here.
It's my view from reading the act that in fact all of the high-risk procedures are covered in their definition of treatment. They're doubly covered because they are licensed and controlled acts under the Regulated Health Professions Act. Where the debate comes in, Mrs Boyd, is around the issue of low-risk stuff, and I do think there have to be some changes and I don't think the government's amendment when we get to it actually solves the problem. We will have an alternative that I hope the government will consider, because I think that is the real issue: How do you make sure that people don't have something imposed on them that someone feels is low risk which in fact they object to?
Mrs Boyd: I wonder if we could have an opinion from the Health ministry lawyer as to whether or not it is redundant or whether everything that is considered as a controlled act would fall under the definition as presented by the government.
Ms Perun: The definition of "treatment" is actually quite broad and it would include the kinds of things that are listed in subsection 27(1) of the RHPA; that is, the 13 controlled acts. The other problem that I saw with respect to just saying "section 27 of the RHPA" is section 27 not only includes the controlled acts but also includes exemptions to the controlled acts, what is left in the public domain. For example, a controlled act -- really, all it means is that it's somewhat risky or dangerous if it's done by someone who is not qualified to do so or is not authorized. But if you're authorized, then you're authorized to do one of the acts.
The exemptions to the controlled acts are such things as first aid or rendering treatment to your son or daughter, for example: insulin shots, that kind of thing. That's out in the public domain, so basically having section 27 entirely is somewhat confusing as well. So that had to be considered. But I don't think those words are really necessary because the actual preamble -- "treatment" is all of this "but does not include" -- is actually quite broad.
Mrs Boyd: If we have the assurance, Mr Chair, that it is included, we will withdraw the amendment.
The Chair: Was that your opinion?
Ms Perun: That's my interpretation.
The Chair: That is the proposed amendment on page 91, which in effect we will not deal with.
Mrs Boyd: Mr Chair, I move that section 2 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following subsection:
"Treatment
"(1.1) Clauses (a) to (h) of the definition of `treatment' in subsection 1(1) do not apply to any controlled act within the meaning of section 27 of the Regulated Health Professions Act, 1991."
It seems to me that in spite of our withdrawal of the previous one, that in fact just reaffirms what you said. I would like to add, Mr Chair, that the counsel's explanation of the exemptions, and section 27 being too broad because it includes the exemptions -- we would want the exemptions included. You gave the example of giving an insulin shot. We would want that insulin shot to be able to be given, I guess exactly in the sense -- so we did mean all of section 27. We did mean the exemptions as well as the controlled acts.
The Chair: Mrs Johns, do you have any comment?
Mrs Johns: I have some comment on this, yes. The definition of "controlled act" in the RHPA applies to things that only certain regulated health practitioners are authorized to do, because those health practitioners have training in those specific areas. However, not every controlled act performed by a practitioner who is authorized to do it is a risky act; for example, removing warts, earwax, that kind of thing, taking blood samples. The motion defeats the purpose of giving flexibility to the legislation which the exemption to the definition of "treatment" accomplishes.
The Chair: Is there any other comment in regard to the proposed amendment? If not, shall the amendment made by Mrs Boyd pass? All those in favour? Two. All those opposed? The motion is defeated.
We are going over to a new section of schedule A, section 2.1, on page 93.
Mrs Johns: Page 93, and we're still on page 66.
The Chair: Excuse me, Mrs Johns. The clerk rightly points out that we have not passed section 2, as amended, and I would therefore ask you whether we shall pass section 2 of schedule A, as now amended. All those in favour? Is there any opposition? None? Carried.
Now we're on to the new section of schedule A, 2.1. It's an addition.
Mrs Johns: I move that the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following section:
"Meaning of `excluded act'
"2.1(1) In this section,
"`excluded act' means,
"(a) anything described in clause (b) or (g) of the definition of `treatment,' or
"(b) anything described in clause (h) of the definition of `treatment' and prescribed by the regulations as an excluded act.
"Excluded act considered treatment
"(2) If a health practitioner decides to proceed as if an excluded act were a treatment for the purpose of this act, this act and the regulations apply as if the excluded act were a treatment within the meaning of this act."
Mrs Boyd: Do you understand what it means?
Mrs Johns: Yes, I do.
Mrs Boyd: Would you like to share it with us?
Mrs Johns: With respect to this (2) at the bottom, "Excluded act considered treatment," we heard a number of people who talked about wanting to opt into the process; in other words, if it wasn't included in the treatment, that a health practitioner would be allowed to opt in and get consent. We heard that from a number of people, from the Ontario Medical Association and Linda Bohnen. That's what we're doing in this case. This amendment permits a health practitioner to seek clear legal consent for the substitute decision-making rather than in accordance with the HCCA low-risk treatment, so we're responding to one of the recommendations we had heard during the period.
With respect to this amendment, there is no simple way to obtain clear legal consent on behalf of the incapable person with respect to low-risk treatments, and so we're trying to implement that into this section.
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The Chair: Any comment, Mrs Caplan?
Mrs Caplan: Actually, you probably could call this the Bohnen amendment.
Mrs Johns: Yes, thank you.
Mrs Caplan: She was the one who brought this forward and I think it has probably satisfied her concern about the ability to opt into the act. Apparently the difficulty with it, although there are some other places farther on where there will be some protections as well for individuals who are required -- I think it is good to be able to opt into the act to obtain consent for something that is considered low risk. I just think that that's good practice and that she made a very valid point before the committee that it should be addressed. I'm pleased to support this amendment.
The Chair: Any other comments? If not, shall the addition of 2.1 to schedule A pass?
All those in favour? Any against? Passed.
We're dealing with section 3 of schedule A and, Mrs Johns, there's an amendment of 3(1), which is on page 94, I assume, of the proposed amendments.
Mrs Johns: I move that subsection 3(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "plan" in the third line and in the sixth line and substituting in each case "service."
The Chair: Is any comment required in regard to that motion. Shall the amendment pass? Any opposed? Carried.
Subsection 3(2) on page 95.
Mrs Johns: I move that subsection 3(2) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "a personal assistance plan" in the last line and substituting "personal assistance services."
The Chair: Any comment? Shall 3(2) of schedule A pass? Any opposed? Carried.
Subsection 3(3), Mrs Johns.
Mrs Johns: I move that subsection 3(3) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "plan" in the sixth line and substituting "service."
The Chair: Any comment? Shall this amendment pass? Carried.
Shall section 3, as amended, carry? Any opposition? Carried.
Shall section 4 carry? Any opposition? Carried.
Section 5 of schedule A, Mrs Caplan has an amendment.
Mrs Caplan: I move that section 30 of the bill be amended by adding the following subsection:
"5.1 Section 46 of the act is amended by adding the following subsection:
"Same, research
"(8.1) The power of attorney may authorize the attorney to request or consent to a procedure whose primary purpose is research."
Speaking to that --
Mrs Johns: On a point of order, Mr Chair: I don't have that motion. Is that distributed? Do I have it?
Mrs Caplan: It should be there. I'm happy to stand it down till you get a chance to look at it.
Mrs Johns: Could we do that, please.
Mrs Caplan: Would you like me to tell you the intent of it?
Mrs Johns: Would you mind?
Mrs Caplan: As of now, no one can consent on behalf of anyone else to research, to a treatment for research purposes or to a procedure which is part of research. That's both common law and there's nothing in statute that permits it. The intent of this --
The Chair: Excuse me, Mrs Caplan. What was it numbered?
Mrs Caplan: It's a new one, so it would be numbered 96(a).
The Chair: That's not the same as was distributed to us, I don't believe.
Mrs Caplan: Oh, right. My error, Mr Chairman. I read one that is section 31 as opposed to the schedule A one. I'd like to re-read it if I can. That's probably why you couldn't find it. I'm sorry. I do apologize.
Schedule A to the bill (subsection 5(1) of the Health Care Consent Act, 1995)
I move that section 5 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following subsection:
"Exception, research
"(2) Despite subsection (1) this act applies to giving or refusing consent to a procedure whose primary purpose is research if the person on whose behalf the consent is to be given or refused has given a power of attorney for personal care that authorizes the attorney to request or consent to the procedure."
The intent of this is to put in statute the ability for an individual in a power of attorney to consent to research on their behalf. At the present time there's no ability for anybody to do that, and it would be my hope that when the Attorney General prints the new kit, you would actually have a line in there that would allow people to think about whether or not they'd like to participate in a research study.
For example, someone suffering from Alzheimer's, where we know very little about that disease, might say in advance: "Should I ever get Alzheimer's, I would be willing to be part of a research study. I give my attorney the authority on my behalf to make that consent."
Unless it's in the statute, they have no ability to consent on behalf of the incapable person. This would just put in place something which I think is missing from the statute which the common law does not permit, and I think it's something people should start thinking about because we all benefit from the research that is done, but we wouldn't want it done without our approval and consent, and now there's no way of obtaining that consent.
That's the intention of this amendment. If you can support it, fine. If you want to stand it down and think about it, I'd be happy. I just wanted you to know what the intent was.
Mrs Johns: I'd like to stand it down so we can look at the legal implications with respect to this, if you don't mind, and we'll bring it up again once we have it looked at by legal counsel.
The Chair: Is there unanimous consent to that? No opposition? Let's proceed then. Section 5 and the proposed amendment 5(1) will be stood down and we'll proceed to section 6.
There are no amendments proposed for section 6, I believe. Shall this section pass? All those in favour? Opposed? None. Carried.
Section 7, schedule A, there is an amendment proposed for 7(1). What page of the proposed amendments is that?
Mrs Johns: It's 97.
The Chair: Could you proceed, please.
Mrs Johns: I move that section 7 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Application of part
"7(1) Subject to section 2.1, this part applies to treatment.
"Law not affected
"(2) Subject to section 2.1, this part does not affect the law relating to giving or refusing consent to anything not included in the definition of `treatment' in subsection 2(1)."
Basically what we have done is change section 7 to take into effect the amendment we made earlier with respect to excluded acts in 2.1.
The Chair: Is there any comment? If not, shall the amendment pass? All those in favour? Opposed, if any? That's carried.
Shall section 7, as amended, pass? All those in favour? Any opposition? Carried.
We're proceeding to section 8, and there are no amendments I'm aware of for section 8. Shall section 8 pass? All those in favour? Opposed, if any? None. Carried.
Section 9 in our deliberations: We have a proposed amendment to subsections 9(3) and (4). Mrs Caplan.
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Mrs Caplan: There's a replacement motion that I'm going to read.
Schedule A to the bill (subsections 9(3) and 9(4) of the Health Care Consent Act, 1995)
I move that section 9 of schedule A to the bill be amended by adding the following subsections:
"Exception
"(3) A health practitioner who proposes to treat a person with electric shock as aversive conditioning shall not administer the treatment without the permission of the board.
"Same
"(4) Subsection (3) does not apply with respect to treatment in a facility which provides residential treatment to mentally or physically disabled persons under the authority of an act administered by the Ministry of Community and Social Services."
The intention of this is to deal with the lifting of the ban. I've said all along, and we've had representations, that I believe the ban was not a good idea because it did not allow for the rare exception. That's the Singer case, which we were talking about.
However, we also heard before this committee others who said that the lifting of this ban would allow this supposed treatment -- "procedure" is the right word -- to be done in an individual's office. What this says is that if it's in a Comsoc facility where they have the regulations, where they have the procedures and safeguards to make sure that the use is a last resort and is appropriate to the conditioning, you could not have a situation whereby somebody was taken on an outing from a Comsoc facility and taken to an office where this could be administered without the consent -- or without the permission; I want to use the correct words -- without the permission of the Consent and Capacity Board.
What it effectively does is maintain control outside of a Comsoc facility. I think that is important to do, because we did hear from those who said they provide or would provide or consider providing or it could be provided outside of a Comsoc facility. As rare as that might be, we don't want to see the proliferation of such controversial procedures without accountability. That accountability would be getting permission from the Consent and Capacity Board.
I hope the government will support this, because the issue is a very divisive one and we heard representations from those who said, "Continue the ban," and those who said, "It's okay to remove the ban because Comsoc facilities are controlled." The concern I have, and it was confirmed, is that because of the nature of this device, it is available and could be used in a practitioner's office. It is sometimes used on capable people, and that is their choice, but this would say that when it came to someone who was incapable, it could not be administered without approval from the Consent and Capacity Board. I think an approval from the Consent and Capacity Board is a reasonable safeguard in a society that considers this controversial.
Mrs Boyd: We have a different amendment under the section where electric shock as aversive conditioning is actually dealt with, and in our amendment we really did believe that an application to the court was the appropriate thing. Very often, an application to the board might mean a review in court in any case, so we felt it should go to a court immediately. But we could probably live with the suggestion in subsection 9(3), as suggested by the Liberals, that it go to the capacity board as an alternative. I cannot live with subsection 9(4), and I cannot live with subsection 9(4) because although there are lots of safeguards in place in terms of Comsoc facilities at the present time, there is no guarantee that those would always remain in place.
There has been a large controversy around the extent to which this kind of treatment ought to be used in a government-regulated facility in any case and there is clearly great disagreement between the advocates on behalf of the vulnerable and those who are advocates on behalf of this particular type of treatment.
There are many, many kinds of treatment that those offering that treatment will hold out as the only solution to specific problems. That certainly was true with the insulin therapy stuff that went on. It was certainly true of some of the drug trials, the LSD trials that we know went on in mental facilities before, and those went on in hospitals that were funded by government.
I would be very unhappy if in fact in a bill which saves people from being liable, we simply gave a blanket permission that mentally or physically disabled people who are under the authority of an act administered by a particular government ministry could have this kind of a treatment without any issue around consent. I think that is a very serious issue and would not be in the best interests of a lot of people.
We saw very vigorous lobbying. We saw what I think is quite unprecedented, frankly, American citizens being allowed to speak to our committee about what our law ought to be, without being invited by the committee itself, trying to advocate on behalf of this particular treatment. This is a very strong lobby that this particular kind of treatment has developed among those who have used it, and I think it is really incumbent upon us to be very clear that the reason this is controversial, the reason it is not funded or allowed in the state of Michigan and most other states is because it is so highly controversial. To do what the government has done in its original bill, which is a blanket permission to use this therapy anywhere with no controls, is unconscionable. But quite frankly, to just allow it to happen in any Comsoc facility, I believe is equally unconscionable.
Mrs Caplan: What I'm going to propose, as well as the explanation, I'm satisfied that there is political accountability for the Ministry of Community and Social Services and that the minister stands accountable for what happens in those facilities, and I'm therefore prepared to exempt the Comsoc facilities from the legislation and the requirement to go to the consent board for permission. But to accommodate Mrs Boyd and hopefully to have the support of the government members for the purpose of voting, if we could split them, so that we can have 9(3) and (4) voted on separately, hopefully we will then accommodate your desire.
The Chair: Is there unanimous consent to splitting the vote? That's all I'm asking right now. No objection?
Mrs Johns: I'd like to speak to this issue. The government will be opposed to this amendment to the act. What has happened over the last three to four weeks is that we have heard compelling information on both sides of the issue. We've heard from the Singers and two families from Michigan. Their plight has I think affected us all who have listened to their stories. On the other side we've heard people talk about different reasons that they believe that it is not true, that the treatment isn't necessary.
We have listened to discussions about aversive and non-aversive behaviour treatments and we've heard some very radical ideas about what really happens with faradaic stimulation. Mr Parker -- I wanted to get the Hansard on a specific person who came before the board, and he asked, "What does faradaic stimulation really mean?" and this person was talking about what happened many years ago with cattle prods and different issues and different ways it was done. Then we heard Mrs Singer talk about what it felt like, what it meant to Brian's life, how different it was.
For the people who are listening here and who may not have heard those presentations, I think the thing that moved me the most, having young children, was the fact that these children are causing themselves bodily harm. In one case the person was hitting themselves 5,500 times in a day, to the point where their ears were damaged, their eardrums were damaged, and the alternative for Brian Singer prior to this treatment was that he was in a straitjacket all the time and his alternative was that he took drugs.
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So from our standpoint, we have listened. We've tried to assess the story. We believe that it's not a procedure -- I think is the word Mrs Caplan used -- that should be used daily, that should be used for everyone around the block. I don't think people are lining up for this procedure, but I think that there are sufficient things that people have to go through in this time to be able to get on the treatment.
We heard Mrs Singer talk about all of the different alternatives that they tried before they put Brian on this treatment. We heard from the woman in Windsor, who I was really touched by, who talked about the procedure of sitting and hugging her daughter for four hours a day, and they thought that that may cause bonding and it may stop her from being self-destructive, and it didn't work. They found that as they went through the different treatments, this was the only way they could go.
This government has thought about this, and what we believe is true is that we have to have some sort of a mechanism that makes sure that this is a last resort, not a first resort. We are very cautious about the people who can consent to doing this. We believe that we need to have regulations that allow us to take control.
We have a draft regulation here today that I would like to get copies of and pass out to you. I want to remind you it's only a draft regulation that we've been working on, and we believe that this will allow the people who need to have the treatment get the treatment after a lot of other alternatives have been exhausted, and at the same time they don't have to go through the court hearings after everything else that these families have been through.
So we will be opposing both amendments that have been put forward, and I will be happy to give you this draft regulation. I'm sure it will need some work, but this is the first draft to what we are considering at this time.
Mrs Caplan: I'd just like to suggest, Mrs Johns, that perhaps you don't fully understand the intent of the amendment. It's not in any way to restrict access to the treatment by someone in a Comsoc facility, such as the Singers. I think that to suggest that is wrong. This very clearly says in a Comsoc facility where they have the procedures in place and the decisions can be made, so be it, and the minister stands accountable for those facilities, and that's fine.
The concern we have is that this legislation as it stands right now places no restriction on the use of this procedure. We're not suggesting that you go to a court. We're talking now about when it is applied to someone who is incompetent and unable to consent to this treatment. We're saying that before a substitute decision-maker or a guardian can consent to the use of this treatment, or therapy, or procedure, or whatever you want to call it, they have to get approval from the Consent and Capacity Board --
Mrs Johns: I understand that.
Mrs Caplan: -- which is a very informal process. It's not a court. It's not lengthy and it's not costly. It's a very simple procedure, but you'd have to make the case for this being the last resort. The concern that we have is that the procedure outside of a Comsoc facility is unregulated, and doing it by regulation is hard to enforce.
If it says in the law that you cannot provide this procedure unless it's in a Comsoc facility or unless you have the approval of the Consent and Capacity Board, you are protecting vulnerable people, if that is clear and that is in place and that is the law. If you do it in any other way, in our view, you are reducing the protection of the vulnerable person. We think it should be clear in the law that says only in a Comsoc facility where you have ministerial accountability or only with the approval or the permission is the correct word of a Consent and Capacity Board that has reviewed the evidence and determined that outside the Comsoc facility that treatment will be acceptable.
I heard your impassioned plea and your discussions of what happened here. No one is suggesting that someone who is self-abusive and for whom the treatment is a last resort and is considered appropriate -- we certainly are not suggesting they shouldn't have access to it.
What we want to make sure is that it is only in a Comsoc facility where the minister and the government are accountable for the procedures in that facility, and that if it is outside that facility in a psychologist's or a doctor's or a whoever knows who else's office -- because this is not a licensed act under the health regulations act. This is not a licensed act. I made that point earlier. If it's in some other place that this is taking place, where this is being applied to an incompetent person, it will be illegal unless they have permission of the Consent and Capacity Board. That's all this is.
I think in your argument about why the government wasn't going to support it, you missed the point, that this is just protection for vulnerable persons. I don't understand what your objection would be to having it made very clear in the statute that this procedure can only be done to people who are unable to decide for themselves, unless they're in a Comsoc facility or unless there's permission from the board. Those are safeguards.
Mrs Johns: Brian will never be able to come out of that home. He'll never be able to go to a group home or to do anything else outside --
Mrs Caplan: The Consent and Capacity Board could say yes. They would have that permission.
Mrs Boyd: Sure.
Mrs Caplan: Absolutely. He could. Whoever's told you he couldn't --
Mrs Johns: But he's gone through all the processes.
Mrs Caplan: No, no, no. As long as he's in the Comsoc facility, he can have that treatment. When he's able to be moved to a group home, the Consent and Capacity Board can agree and give permission for the treatment, and that could be done in 24 hours. This is not a court proceeding. It is not expensive. If they've told you that there's a problem, there's no problem. He and anyone else -- and that's the concern -- who moves into a group home, there's no accountability. This can happen in group homes anywhere in the province, and that's exactly the issue. At least somebody should be monitoring it and having to give permission and holding accountable what's going on.
Think about this very carefully. It's protection for vulnerable people outside of a Comsoc facility. How can you possibly object to them having to have permission before they do this in a group home? Just get permission; then they can be moved. No one's saying that you can't do it. Just add a little protection for those vulnerable persons. That's the only request.
Mr Marchese: I support the arguments that have been made by my colleagues on this side. We pointed out that our own bill initially was extreme and it didn't allow for the flexibility. Our concern is that you not go the other way to the other extreme. What we're supporting on this side is that safeguard that I would think you would be supporting but I'm not quite sure why you're not, so it's concerning me.
The case you brought forth about Mrs Singer, we were all pained by it, especially she as the mother of that child. We understood that. That's why we said that our own bill made it very complicated for her and that we needed therefore the flexibility to allow that. On the other hand, we were not just informed about this case by Mrs Singer, but we were informed by others who called this cattle prods, and I know some of you took offence to it. On the other hand, many of us say that those people who experienced that were offended by it so much that they referred to it as cattle prods because that's the kind of influence it had on them personally. I know you might shake your head, but we haven't been through that. I don't want to go through it myself, to experience it to determine whether that's a cattle prod or some nice, gentle little shock one gets. I don't want to experience that. The point is that many of the people who have gone through it find it particularly offensive, so much so as to label it something you find unpleasant. You've got to listen to what people tell you.
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We've listened to Mrs Singer. We say, "We understand that; we want to correct it." We listened to many others who said: "It's a problem. It's dangerous. We don't like it. Give us some protection." The point of this particular suggestion, and we make our own, where there are higher degrees of safeguards is to say that we want it to go ahead but under certain conditions. My colleague Mrs Boyd talked about why she is concerned about number (4) as well, because we're concerned abut that. Wherever it's happening, there has to be a high level of safeguards to protect individuals from something they find terribly wrong.
This motion, part (3), gives you the protection, Mrs Singer the protection and people like her the protection through the board. Let me understand, and when you respond you might correct me if I'm wrong: Are you perhaps thinking that the board may not allow it? Our suggestion is that once it gets to the board it won't take very long; that if you have a case like Mrs Singer, the board will say, "Let's go ahead." I don't see the board denying that particular case; I see the board supporting it. But it allows a board to hear evidence in the matter and then say, "We think this is good" or "We think it's bad." Where they see fit in their reasoning that something can be allowed, they will allow it, and we trust that. Where they think it's not something they could allow, it gives protections to those people who find this offensive.
I'm not quite understanding why you, as a government, are objecting to this particular piece, because it gives you the flexibility to protect people like Mrs Singer and it gives the others the protection from this particular kind of treatment that frightens them very much.
Mr Tilson: I have a question for Mrs Caplan on the intent of her motion. I know you've given your intent, but just so I'm clear. Faradaic stimulation is not prohibited anywhere in Canada other than the province of Ontario currently, as I understand it. Is that agreed? Ontario is the only place currently where faradaic stimulation is prohibited.
Mrs Caplan: A total ban.
Mr Tilson: A total ban. My understanding is that treatment of this process by regulated health practitioners, who are accountable through their colleges -- that's the process, that the colleges put forward their own regulations as to how or why or in what way this process is to be completed.
The philosophy of our government, at least, on a great many things is to enable the colleges to take a more independent role. Certainly the minister, in his or her discretion, can make pretty strong suggestions as to guidelines and other procedures that should be followed in various processes, but the intent of our government and, I seem to recall, the intent of the Liberal government as well was to place a great deal of importance on the independence of these colleges. That's what we're suggesting, that process, that the control of this type of treatment be left with the college.
You're saying, just so I'm clear on your intent, "No, we want it to go further." With the exception of a facility administered by Comsoc, we say: "No, that's not enough. We want you to go to the board." Is that the intent of your amendment?
Mrs Caplan: Actually, as you've explained it, it's not accurate, because faradaic stimulation and electric shock therapy -- and I'm not talking about electric shock therapy of other types. The type of electric shock we're discussing as faradaic stimulation is not a controlled act, is not a licensed act.
Mr Tilson: Yes, and currently it's only done in the one institution.
Mrs Boyd: But it's not a controlled act.
Mr Tilson: I understand that.
Mrs Caplan: But this is the point. You said, and I think your language was very good, that under the Regulated Health Professions Act is where it should be controlled. It's not controlled under that act. It is not a licensed act, it is not a controlled act, it is not given only to certain professionals to be able to use that tool.
Mr Tilson: You're a former Health minister and I'll acknowledge that you know more terminology than I do, but my understanding is that this is a means of clinical practice, and the colleges control clinical practice.
Mrs Caplan: No, and that's the problem. The problem is that this act is not controlled by any of the colleges and that while it is part of the clinical practice of one of the professions, namely, psychology, it is not licensed only to psychology, and therefore it is not controlled by that college. That's the problem. That is an option to consider, but that's not what you have today. When you're saying leave it to the colleges to control -- this particular therapy treatment procedure is so controversial that there are states in the United States that say if you choose this, you receive no state funding or access to state-funded programs.
There's a lot we need to know about this. Given that there is no regulation, that it's not a licensed act given to any one profession -- and even if it were a licensed act given to one profession, I would still have a concern about its use on incompetent people outside of Comsoc facilities. That's the answer to your question. I do have concerns, because the recourse in that situation would require a complaint to the college and that procedure, and I don't think that protects vulnerable persons adequately enough. While I agree with you and support the thrust of your government that you want to let the colleges wherever possible set the standards of practice, you have a dual obligation as well, and that is to the vulnerable people in this province.
The people who would receive faradaic stimulation are among the most vulnerable: the self-abusive. They are likely under a guardianship plan or agreement, and certainly most are in Comsoc facilities. But there is always the possibility -- and I raised this at committee and unfortunately you weren't here. I asked a psychologist if it would be possible for a patient, a resident in a Comsoc facility, to be picked up and taken out for an afternoon outing and taken to an office of a psychologist where this therapy would be administered. Would that be possible under this legislation? The answer was yes. So this is intended to say, whenever it's outside a Comsoc facility, you're protecting the vulnerable person by making sure somebody gives permission to what is a very highly controversial procedure. That's what it is.
Mr Tilson: Continuing with my question, it has to do with the draft regulations that I believe have now been distributed. I'm wondering if the Chair would allow Mrs Johns rather than me to explain these regulations.
Mrs Johns: Everybody's probably read them. Basically, what the regulation is doing is tying it to people who are with the College of Physicians and Surgeons and people associated with the College of Psychologists. I wanted to draw that to the attention, that we have narrowed it down here; that was something I wanted to add to the discussion, and I think that was something you didn't recognize. Legal counsel wants to add something? We've also tabled a letter, they'd like us to tell you, about the contents of this.
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Mrs Boyd: I'm not unhappy about the fact that you might bring this under the regulated health professions, although the way you're doing it is to give permission for aversive therapy as opposed to requiring them to change the current thing for incapable people. If they're so ethical and so on, why wasn't this under their college in the first place?
This is a big issue. You talk about Mrs Singer, and Mrs Singer and those other parents, yes, they presented a point of view, but you don't talk about all the other people who really presented a very different point of view and who really saw that to allow this to happen to incapable people and, under your act, allow it to happen anywhere and in a completely unregulated way, because these regulations don't exist yet, is running completely counter. Let's look at some of the people: the Toronto Mayor's Committee on Aging, the Legal Assistants of Windsor, the Advocacy Centre for the Elderly, the Family Mental Health Alliance, the Adult Protective Services Association, and not least, of course, the Ontario Association for Community Living.
The Ontario Association for Community Living has a resolution on its books saying aversive therapy should not be used at all. They were prepared to come here and say, as were these other groups: "We appreciate the enormity of what has happened under the ban for an individual in this province, and that was never the intention. But if this is going to be used, it ought to be used under some controls. It shouldn't just be able to be used."
What we all heard was a series of psychologists and others come in front of us saying that this would be useful for "many" children, and they kept saying it again and again. They would say, "Oh, it won't be used very often," and then they would say, "But many children would benefit." And so did the parents who came in front of us, except for Mrs Singer. Mrs Singer did not. But the parents who came in front of us in Windsor said in part of their presentation, "This will only be necessary in maybe one, maybe two cases in your province." But at the end of their presentations, they all said, "And this would be valuable in the case of hundreds of children."
One of the things we have to recognize is that if this is not regulated and strictly controlled, its use will grow. However it works -- and even those who were very strong advocates said they don't know why it works or how it works and why it doesn't work on some people who show exactly the same symptomatology as Brian. It worked with Brian; it didn't work with six others that we know of. They don't know why it works, but the problem is that when you get this kind of thing, people use it to see if it works.
Everybody talks about what confidence they have in the facilities under the Ministry of Community and Social Services. Having been a Minister of Community and Social Services and trying to make sure that in fact this was not an expanding program, my experience is that those who want to use this see this as an expanding program. They talk about it as useful for controlling the behaviour -- which is what this is all about -- of many more than just the few people that are there.
It is really important for you to understand that although nobody here wants to see the kind of situation where it's absolutely not allowed -- and I think we all have come to that conclusion; certainly we have -- we would say it needs to be much more strictly controlled when you're doing it for people who are incapable.
Personally, some of the things we heard about its widespread use with capable people give me pause, but as long as it does come under the regulated health professions in a full way -- not just for incapable people, but regulated under the regulated health professions, period -- I could probably be more comfortable with that. Certainly my discussion with Mrs Singer indicated that going through that procedure would be nothing compared with what she has already gone through just to get the consent of the board or a court. I don't understand why the government is refusing to consider that as a possibility for incapable people. The protection of incapable people is extremely important.
We have seen facilities for the developmentally delayed and facilities for the mentally ill in this country give many, many treatments that the physicians involved said they thought would be effective. We had a case in front of the College of Physicians and Surgeons just last year where a person was complaining to the college about physically abusive and sexually abusive behaviour and many doctors said, "Oh well, that was just one of those treatments we tried then, and it was an effective treatment or we thought it was an effective treatment at the time and it shouldn't be the ground for a complaint."
I don't think, when we know this much about this sort of thing, that any government wants to put itself in the position where they are opening the door wide to this kind of treatment that is highly controversial. We may be the only jurisdiction that bans it, but I can assure you Mrs Singer didn't tell you she could go to Winnipeg or Halifax or Vancouver to get it because it isn't offered and it isn't paid for in other states.
This is a very big issue in the treatment community as to whether this ought to be allowed at all, and if it is allowed, under what circumstances and under what controls. I find it quite puzzling that the government is not prepared to say, "Yes, there should be some controls on it," and consider either the capacity board or a court to be the appropriate place where that case is taken.
Mr Ramsay: Mrs Johns, I'd really like to plead with you this afternoon to bring some control here. I think before we had these hearings we all had various opinions about faradaic stimulation, and the stories we've heard throughout the last few weeks, especially Brian Singer's story as told by his mother, the people that had come from Michigan, I think touched us all. As you've just witnessed from members of this committee that belonged to the previous government, many of whom were extremely against this, all of us have been moved by this and understand the need. However repugnant we might find this treatment, we understand the need that in some cases this type of treatment is required, and I think there's fair agreement around this table about that.
Our concern is that you offer control for those people who are deemed to be incapable -- some protection. That's all we're asking. If you take the range of people in Ontario who require psychiatric and psychological services, only a very small number of those people would fit into the category that might benefit, as a last resort, from this type of treatment, and a very small number of those within that group would be found to be incapable.
If we afford protections for those people who find themselves in a Comsoc facility because of the procedures that are in place, I don't see why we're not affording the same protection to others. An example would be that under your regulation here a physician or a psychologist could make a house call and could deliver this treatment at somebody's residence, for instance.
I think you're really opening the door potentially for some abuse, and I don't know why you would not at least, since we've fairly well agreed here that this can be appropriate treatment at some point, put some protection there for vulnerable people. You're talking to people now who aren't totally adverse to this treatment, but we still feel that the yellow light should be there, the caution light at least should be there, that, yes, we agree that this treatment in some cases is appropriate, but we feel there should be some safeguards and they should be applied evenly to incapable people wherever they find themselves.
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Mrs Caplan: The question I have is -- do I read this correctly, Mrs Johns? -- would this regulation permit a doctor or a psychologist to provide this treatment in their office or in the privacy of someone's home, as Mr Ramsay described, on a house call? Would that be permitted by your regulation?
Mrs Johns: Yes.
Mrs Caplan: And do you think that's acceptable?
Mrs Johns: I believe that this is a treatment. It's established by two colleges, the College of Psychologists and the College of Physicians and Surgeons, and although it's different from other treatments, it has the same evaluation as treatment. These people go through different processes to get to it. It's not the first kind of treatment we offer them, but it is a treatment and it will be set up in guidelines that we have set through our regulation here.
It will allow people to be protected. We don't talk about any other kind of treatment throughout this whole act. We say that the doctor or the health practitioner decides on what the appropriate treatment is and, all of a sudden, on this side you're saying, "I'll let them decide on every treatment except that one." We're saying that we have to have faith in the health practitioner. We're asking for guidelines, we're setting out regulations, and we believe we are monitoring them and we are protecting the vulnerable.
Mrs Caplan: I think it's good that you've decided it's a treatment, but what we heard from all of the organizations and associations that Mrs Boyd listed, and I'm not going to repeat them, is that it is hugely controversial as to whether this is a treatment or a therapy or a procedure. There is no consensus here in Ontario, there's no consensus across Canada, there's no consensus in North America, there's no consensus around the world.
There's no place where you could point to and say that has been agreed upon, that this is under the following circumstances, so I think you are taking a huge leap of faith, and also, frankly, placing yourself and your government in a very difficult and untenable position by opening the doors without having in place the safeguards to protect the vulnerable until there is such a consensus. On every other licensed act listed in the regulated health professions legislation, there has been a consensus that those are the licensed acts, that those are harmful acts, that those are in fact treatments. This is not included.
There is no consensus, and what you are permitting with the passage of this bill and your proposed draft regulation, all it says is that any doctor and any psychologist, as long as it's in accordance with their college, can take this device, which is eminently portable, doesn't require any big facility to do it in -- you know all the protections and protocols that are in place in a Comsoc facility and you also know that, while overwhelmingly doctors and psychologists and other health care practitioners are abiding by the standards within their profession, there are those who sometimes act in a way that doesn't make any of us pleased or proud.
The concern here is the lack of accountability, the fact that this doesn't have to be in any kind of an environment where you will have those safeguards, and I think the concern is real. I would ask you to stand this down and reconsider. All we're asking for is some safeguards for those that are incapable. We heard before this committee a psychologist who said he uses this regularly in his practice, in his office.
Mrs Johns: With consenting adults.
Mrs Caplan: Yes, he did, and he also said that it would be possible with your bill for an incapable person to be taken to someone's office to have this administered, and you've said that that could happen. This is so controversial. When organizations like the Association for Community Living -- and I'm not going to go through the whole list again. Surely it's not that much to ask, when you remove an absolute ban, to put in place some safeguards.
What we're saying, and I know that Mrs Boyd doesn't agree, is: "We're satisfied in a Comsoc-run facility that there are the safeguards there. Exempt them all." We know that the procedure is only available in one Comsoc facility. It's that controversial in Ontario. But this opens the door to incapable people being taken to a psychologist's or a physician's office or having a psychologist or a doctor come to an individual's home and in the privacy of that home, unbeknownst to anyone, an incapable person could be subjected to a highly controversial procedure.
You may have decided it's treatment, Mrs Johns, but the legitimate professional community and those who have concerns about vulnerable people receiving this as aversive conditioning haven't come to that same conclusion that you've come to. I suggest to you that, as a government, you're going to be very sorry if you open the gateway. You get one horror story, you're going to own this. You don't want that.
Mr Ramsay: You're going to wear it.
Mrs Caplan: And you're going to wear it. So my advice to you is, think very carefully before you do what you're proposing, because you get one horror story and it's yours. We've warned you and we've told you and it would not be difficult for you to add a little bit of protection for vulnerable persons who are unable to defend themselves. You have a responsibility to do that, especially where you've got something which is as controversial as this.
I feel very strongly about this and I don't believe the ban was appropriate. I've said all along there should be access to this. I'm prepared to accept Comsoc's procedures and protocols and say that they are exempt from the legislation. But don't ask us to allow house calls potentially; don't allow this to be provided in an office without any scrutiny or accountability. You're asking for problems.
Mr Tilson: Mrs Johns has stated pretty well what I had intended to say; in other words, that this treatment and process will be regulated by the College of Physicians and Surgeons as well as the College of Psychologists of Ontario, and it is there that the accountability will take place. I would like to read into the record the letter, a very brief letter, which has been distributed to members of the committee from the College of Psychologists, which I think deals with a number of the issues that have just been raised, particularly by Mrs Caplan, if I could read that letter.
The Chair: It seems I have very little authority. You can do what you wish.
Mr Tilson: You have all kinds of authority, Mr Chair, and I just notice --
Mr Marchese: We can go on forever.
Mr Tilson: It's a letter from the College of Psychologists to the Ministry of Health, dated February 21. It concerns the draft regulation on faradaic stimulation.
"Thank you for sending the draft regulation on faradaic stimulation. I understand that you will be adding to the draft the requirement that a person will be exempt for the purpose of applying electricity for aversive conditioning on the order of a member of the College of Psychologists and under the direction of a member of the college. This satisfies the college's concern that the public be assured that those administering this procedure are trained and provided with clear protocols for the appropriate use of the technique as well as the circumstances for discontinuing the conditioning program.
"The college considers the proposed amendment to be in the public interest. There are specified circumstances in which aversive conditioning is the only effective treatment to manage such behavioural problems as self-injurious behaviour, compulsive behaviour and addictive behaviour.
"As you know, there are a small number of developmentally disabled individuals incapable of consenting to treatment on their own behalf but for whom the potential for the consent of a substitute decision-maker allows them to receive a treatment which reduces the incidence of serious self-injurious or aggressive behaviour. Such treatment is utilized under stringent protocols specifying precisely when and how the treatment will be administered and under what circumstances it should be discontinued to ensure that only demonstrably beneficial treatment is undertaken.
"There are also clients capable of consenting on their own behalf for whom the use of electricity for aversive conditioning may be the only treatment effective in reducing such compulsive behaviours as those involved in paedophilia. Some addictive disorders may be effectively treated with aversive conditioning as well in order to counteract the powerful reinforcing effect of the particular substances to which the individual is addicted and to disrupt the behaviour associated with seeking and ingesting such substances.
"The proposed regulation continues to make this treatment available where clinically necessary and ensures that it will be provided only under the authority of regulated professionals who have the expertise to ensure effective and ethical use of the treatment, thus protecting the welfare of the clients.
"Thank you for your assistance and for the opportunity to make a submission in the development and approval of this regulation."
Mr Chairman, I think that in many ways summarizes what the government's position is with respect to this regulation and the proposal under the bill.
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Mrs Boyd: We find ourselves in the same position, where the health care providers say one thing and the consumers say another. There are several members of the committee who were not here when the Ontario Association for Community Living made their presentation and it's extremely important for people to understand that this is the consumer group that represents people and their families where developmental delay has been an issue.
In the submission they gave to us, which they entitled The Potential Impact on Persons with Intellectual Disabilities of Bill 19, on page 13 they remind us about the conflicting information this committee received about how painful or not painful this is.
We all heard Mrs Singer say that she had tried it and that it was similar to the shock that you get if you walk across a wool carpet and touch a light switch. The next person who spoke about this issue said, "It hurts like the dickens." The next person who spoke said it was similar to touching a hot iron pan that's in an oven. We get three very conflicting notions of what and how painful this is from three different sources, all of whom are in favour of faradaic stimulation and all of whom claim to have tried it. So we need to be very clear among ourselves that this is meant to be painful; that is what changes the behaviour.
We are talking about using a painful electric shock to prevent somebody from continuing behaviour that someone else has decided they don't like. Now, in the case of Brian Singer none of us would think that kind of behaviour would be suitable to condone in any way; I don't think there are any of us here who do. But in some of the other cases that Mr Tilson just read out from the psychologists there's real concern. This is used to control behaviours that someone in a position of power doesn't like, and if you have no controls over this kind of thing, incapable people who misbehave in the minds and the view of their substitute decision-maker could easily be subjected to this kind of aversive conditioning to change their behaviour. It wouldn't be the kind of tragic, awful case the Singers presented to us. So we have to be very clear about that. There are no controls in what you have allowed.
I'm going to read from the report of the Ontario Association for Community Living, starting on page 13, because they gave a verbal report which fit their 30 minutes. They presented us with a longer report, which I trust members have read but certainly didn't get read into the record, and it's important that we do that.
"OACL can assure the committee, having experienced the pain inflicted by these shock devices (some colleagues having submitted themselves to the procedure), and having heard the rationale for using it on persons with behavioural problems, that the procedure is, and is meant to be, quite painful. However, OACL's objection to the use of electric shock therapy for purposes of aversive conditioning is not based so much on the severity of the pain inflicted by it as it is on the very notion that an individual who indulges in self-injurious or aggressive behaviour can be expected to learn not to do so if he or she is treated with violence.
"The use of electric shock as aversive conditioning can only be described as an act of aggression which, in the absence of any legal justification, would surely constitute a criminal assault. No such justification existed, in OACL's view, prior to the proclamation of the Consent to Treatment Act and the Substitute Decisions Act last April. The prohibitions contained in those two statutes in effect confirmed that the administration of painful electric shock was contrary to law.
"One of the questions the committee must address is the fact that 43(5) of Bill 19 will amend section 66(12) of the Substitute Decisions Act in such a way as to provide the legal authority without which the continued use of electric shock as aversive conditioning would be a violation of the Criminal Code. Subsection 66(12) of the Substitute Decisions Act currently reads:
"`The guardian shall not use electric shock as aversive conditioning and shall not give consent on the person's behalf to the use of electric shock as aversive conditioning.'
"Bill 19 will amend this subsection by adding the words:
"`...unless the consent is given to a treatment in accordance with the Health Care Consent Act, 1995.'
"The clear intention and effect of this amendment is to remove any barrier or safeguard to the substitute decision-maker, whether a parent, or indeed any relative, providing consent to the use of shock as aversive conditioning. Now express provision is to be made in the new legislation for substitute consents to be recognized as valid, without any kind of independent assessment by which it can be determined that there is no effective alternative means by which to control self-injurious or other destructive behaviour.
"The only requirement in the Substitute Decisions Act to establish the validity of the consent of a guardian or attorney for personal care to use shock as aversive conditioning will be that it `is given to a treatment in accordance with the Health Care Consent Act, 1995.' What does this mean? First, shock must qualify as a `treatment' under that act. Subsection 2(1) of the Health Care Consent Act defines treatment to include `anything that is done for a therapeutic, preventive (or) health-related purpose.' It might be questioned whether behavioural problems are, strictly speaking, `health' problems. Certainly OACL would maintain that the intellectual disability component of such problems is not a health issue. It has to be admitted, however, that if you injure yourself you have created a health problem. In this sense, shock may be regarded as a form of `prevention' that would bring it within the definition of treatment.
"Even though electric shock as aversive conditioning is not mentioned in the proposed Health Care Consent Act, if it qualifies as `treatment' in order to permit a guardian or attorney for personal care to authorize it under the Substitute Decisions Act, there would seem to be nothing to preclude its use under the Health Care Consent Act alone, in which case any family member could consent to it without having to obtain any court approval or any independent review of the necessity of its use. There is nothing in Bill 19 which would limit the use of the painful electric shock on the consent of a substitute decision-maker, regardless of where or by whom the shock is to be administered. This total absence of any safeguard to its use in this legislation is unacceptable.
"Section 12 of the Canadian Charter of Rights and Freedoms states that, `Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.' Interestingly, the American Bill of Rights only prohibits `cruel and unusual punishment.' The addition of the word `treatment' in section 12 of our charter signals a clear intention that it applies outside, as well as within, the criminal justice context. In other words, non-penal use of painful stimuli by an agent of the government (or the authorization of such use in a statute or regulation) is as much a violation of the charter as are certain practices in the treatment of offenders. OACL would argue that when the recipient of painful electric shock is a devalued person who has already been subjected to a great deal of both physical and mental pain, and who cannot understand the rationale for the procedure, then a much lower threshold would apply in determining whether the practice is `cruel.'
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"Those who defend the use of electric shock for purposes of aversive conditioning would counter the foregoing arguments by saying that without its use certain individuals will inflict much crueller punishments on themselves. This is, of course, the crux of the issue. OACL is as committed as anyone to the proposition that persons with mental disabilities should be protected from harm, whether caused by someone else or by that person's own actions. That proposition is also reflected in the Charter of Rights. Section 7 says, `Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.' In OACL's view, `security of the person' of an individual with a serious intellectual disability combined with behaviour problems includes both freedom from his or her own self-injurious acts and from the administration of such punitive treatments as electric shock. OACL does not believe that a choice should ever have to be made between these two violations of the guarantee of security of the person. There are alternatives to the use of shock, or indeed of any punitive or aversive procedures.
"If the standing committee comes to the conclusion that for certain individuals such a choice must be made -- ie whether to administer painful electric shock or to allow the individual to go on injuring himself -- the OACL urges consideration of the second half of the guarantee set out in section 7 of the charter. Section 7 not only guarantees the right to security of the person, but also that everyone is entitled not to be deprived of such a right `except in accordance with the principles of fundamental justice.' The basic principle of fundamental justice is that a violation of anyone's security of the person must not be allowed unless there has been an impartial adjudication of the reasons for doing so. OACL believes very strongly that, at the very least, Bill 19 must be amended so that the authorization of the use of electric shock as aversive conditioning will require a hearing, either by the court or by the Consent and Capacity Board. This practice is so controversial, and in OACL's view so dehumanizing, that substitute decision-makers should never have the authority on their own to provide a valid consent to its use."
Appended to this brief is a letter written on August 7, 1995, to Premier Harris, by Dr Walter Eigner, president of Inclusion International, urging that the government of Ontario not remove the prohibition of substitute consent to the use of shock for purposes of aversive conditioning contained in the Substitute Decisions Act and the Consent to Treatment Act. Because Mr Tilson read the letter from the psychologists into the act, I'm certainly going to read the letter of Inclusion International, which is the International League of Societies for Persons with Mental Handicap, into the record.
"Dear Premier Harris,
"Re: Use of electric shock for purposes of aversive conditioning
"I am writing to urge you to retain and uphold the statutory prohibition of substitute consent for the use of electric shock for purposes of aversive conditioning which came into effect in Ontario earlier this year with the proclamation of the Consent to Treatment Act and the Substitute Decisions Act.
"The International League of Societies for Persons with Mental Handicap (Inclusion International) consists of 169 organizations in 105 countries around the world. All of these organizations as well as the league itself exist to promote the wellbeing of persons with intellectual disabilities and to defend their rights and status as full citizens of their respective nations. As our newly adopted name -- Inclusion International -- implies, we believe very strongly that the interests of persons who have been labelled mentally handicapped can only be assured when they are included in their natural communities and learn, work and participate in other activities in the company of their fellow citizens who have not been so labelled.
"We have long regarded Canada, and Ontario in particular, as a society in which honest and sustained efforts have been made to ensure such inclusion. We think of Canada, with its constitutional guarantees of legal equality without discrimination based on mental or physical disability and of freedom from cruel and unusual treatment or punishment, as a beacon lighting the way for people of every race and nation to find humane, empowering and valuing approaches to sharing the benefits of citizenship with those who have disabilities.
"Since our membership comes from so many countries worldwide, we are aware of some societies that continue to use torture for the purposes of controlling the activities of people who live within their borders. There are also countries represented in our league where people with mental disabilities continue to experience unspeakably degrading conditions on a day-to-day basis. However, we are not aware of any countries where electric shock is used for the purposes of behaviour management except Canada and the United States.
"Persons with mental handicaps who engage repeatedly in serious destructive acts challenge us to make extraordinary efforts to preserve them from harm and to accommodate their needs. This is never easy. None of us can claim that we have been unfailingly successful in our dealings with such individuals. Notwithstanding our frustration in attempting to find solutions to such problem behaviour, I acknowledge the guiding principle that we simply cannot allow people to continue engaging in such behaviour, particularly when it is directed against themselves. Having said that, however, we must also invoke other principles that protect the dignity and fundamental humanity of persons who are beset with such difficulties.
"The technology known as aversive conditioning includes the administration of a wide range of stimuli that are physically and/or emotionally painful. The most aversive of these procedures that are sometimes employed in behaviour management programs is the administration of painful electric shock contingent upon the individual's inappropriate behaviour, such as a self-injurious act. There has been considerable controversy surrounding these procedures. Some claim that it is a highly effective way to stop self-injury. Others say that it only temporarily alleviates the most disturbing aspects of the problems experienced by those who engage in extremely challenging behaviours.
"We believe that it is an inescapable reality that you cannot teach people that they should refrain from indulging in violent behaviour by using violence against them. The administration of a painful electric shock may jar them out of their present pattern of repeated self-injurious acts but the benefit of doing so may be more than offset by making it less possible for them to engage in positive, adaptive interactions with others. There is a very high risk that they will be driven further and further into their separate world of pain, rejection and humiliation.
"There are several theories as to what causes some people with intellectual disabilities to injure themselves. We have to assume that whatever these underlying root causes are, they represent serious negative perceptions that these persons have of themselves and of their relationships with the people around them. Simply stopping the behaviour cannot in itself bring healing to these inner psychic wounds, especially when the pain is used to stop it. Such persons need to experience real friendship and acceptance. They need to be treated as human beings.
"We are aware that, even with your province's new law effectively banning the use of shock for purposes of controlling people's behaviour, this issue is before the court with respect to its continued use on two young men in one of Ontario's institutions for persons with intellectual disabilities. We do not presume to sit in judgement on the parents of these two individuals or on those who have day-to-day responsibility for their care. We know, from sad experience, that these difficulties generate a desperate need to find solutions and that non-punitive alternatives take time to prove their effectiveness.
"We also understand that the constitutional challenge to the provisions banning substitute consent to the use of shock as aversive conditioning does not entail a question of the validity of those provisions but rather their constitutionality as applied to these two individuals. Consequently, the court is not being asked to strike down the legislation but to exempt the two subjects of the litigation from its application. We are concerned, however, that your new administration may be tempted to solve the problem by failing to defend the integrity of the legislation or even by repealing the provisions of the two statutes. We think this would be a tragic step backwards.
"We strongly urge you to direct the responsible ministers in your cabinet to encourage serious dialogue among the families of these two young men, the public servants who have responsibility for their placement and care, and representatives of our Canadian member organization, the Canadian Association for Community Living. CACL's counterpart in your province, the Ontario Association for Community Living, along with its local associations, possess or can gain access to a great deal of information about positive approaches to behaviour problems. Not only that, but they are very seriously committed to helping people with mental disability labels achieve lives of real dignity and worth, both in their own eyes and in the eyes of the community. We believe that you and they have been presented with an opportunity to create genuine validity for Ontario's new legislation barring the use of electric shock for purposes of aversive conditioning, not simply in the constitutional sense, but in terms of common sense and common humanity as well."
That is signed, "Yours very truly" by Dr Walter Eigner.
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I think that one of the issues here is that we can all get caught up in the emotional presentation of families who are experiencing the very kind of pain that Dr Eigner talks about, and I think we all feel very anxious about being in a position where we might prolong that.
But I would say that those who cannot speak for themselves are the ones that governments must also protect. And the vulnerable who cannot and do not have the capacity to consent themselves must have some sense that their behaviour is not going to become an easy target for this kind of aversive treatment without some other outside body judging that it is necessary.
I can tell the committee members that this is a long way for the Association of Community Living to come. The Association of Community Living was adamant in its stand for a number of years that this be forbidden outright. They have made a huge step by saying that they would be prepared to accept the possibility of a substitute decision-maker allowing this treatment if they had affirmation from a court or from the Capacity and Consent Board, and I would urge committee members to take very seriously that we have not only to protect the rights of the vulnerable, but also to protect the rights of every citizen.
I think that the Ontario Association for Community Living's arguments around the constitutional issues are ones that we ought to pay attention to. I think we'll hear them again if you go ahead with this action, where there is no due process for the vulnerable person built into your legislation.
It is very interesting that this is a treatment that is not used anywhere else except in Canada and the United States. In fact, it is not used anywhere else in Canada but in Ontario, and it is only used in the context of this in one facility by one practitioner. And I think we need to keep that in mind.
There's a reason for that. This is not a treatment that is limited by the profession. It's limited because it is seen as not being an appropriate treatment, particularly for those who are vulnerable and who are helpless to speak for themselves.
So I would urge the government, at the very least, to accept the amendment adding subsection 9(3) brought forward by Mrs Caplan, and to take very seriously the concerns that have been raised.
Mr Ramsay: Mrs Johns, is any of this resonating with you at all, any of the arguments we've been making?
The Chair: Excuse me. We have the right to ask for clarification of PAs, but we do not have the right to say, why is it you do not agree with me? And I've heard that a number of times today; very non-productive.
Mr Marchese: We can say that, though, Mr Chair.
The Chair: I don't think that's helpful to this hearing.
Mr Ramsay: I was trying to be helpful, because if there was any movement there, I would then decline to take my turn. Obviously, there's no response.
Mrs Johns: Take your turn, David.
Mr Ramsay: Then I'll continue. Let's personalize a little bit. When we go to a doctor and maybe we receive some information that is very disconcerting, that we have a serious illness and there are a choice of treatments available to us, maybe some are quite radical, some are called radical in regard to surgery, and there are other types of treatments available. Sometimes when that happens we decide we want a second opinion.
Whether the health care system can afford that any longer is a moot point, but usually when there's something that serious, we do seek out a second opinion. I think that's all we're asking for here today on behalf of vulnerable people, only that, not that you outlaw this particular procedure. In fact, we want to make sure it is available, but what we want to do is to say that these people deserve a second opinion because they can't even consent themselves.
I'm equating a safeguard with almost a second opinion, that you will run this treatment decision by somebody else. In this case, it's going to be the Consent and Capacity Board. That's all we're asking.
Mrs Johns: In our case, it's going to be the colleges that are monitoring this.
Mr Marchese: We understand that.
Mrs Johns: And on top of that, there will be a number of processes, as you heard from Mrs Singer that her son went through a number of different -- I hesitate to use the word "treatment" but I will, in quotation marks, to try and alleviate this situation along the line. This is not the method of first choice.
The Chair: Mrs Johns, you don't have the floor.
Mrs Johns: I'm sorry.
The Chair: Mr Ramsay has the floor and then we have Mr Marchese, Mr O'Toole, and probably a number of others. If you wish to have the floor, raise your hand and I'll give you the floor.
Mr Ramsay: The other thing is, it's not a big problem, and again referring to the letter that Mr Tilson had read into the record, in the third paragraph, they state, "As you know, there are a small number of developmentally disabled individuals incapable of consenting to treatment on their own behalf" who maybe require this.
So all we're saying is we would like a safeguard in place as those people have today in a Comsoc facility, and again when you start to bring up the Singer example, the safeguards are there. We're talking for people other than the Brian Singers of the world who don't happen to find themselves in a facility where those safeguards are applicable. And that's all we're asking for.
In Ontario right now, there may not be anyone, but there could be in the future, and we believe that the government does have a responsibility to have some safeguards in place, not that we want to ban this treatment outright, but that it be made available as a last choice.
The other argument I'd make too is that if you remember when many parents came before us who had children in this position, it always astounded me that the parents who had said, "Well, it was about a year previous that we were told about this treatment, but we continued along the line of the course of different treatments that we were attempting before we got to this decision." People consider this very seriously. And even those, and I was surprised that it was one year and you're going to go to a second year, and you and I both were shocked by some of these situations, and I was just marvelling at the tenacity of these parents and how they were just sticking with these different courses of treatment until they got to the end where this last treatment was the most appropriate one.
It just seems to me that to have somebody to make a decision on behalf of somebody who's not capable of making that decision for themselves without some sort of safeguard in place is irresponsible. I really beg you to have some sort of safeguard in there for those people. I think it would be irresponsible of us as legislators and you, as a government, to abandon those people.
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Mr Marchese: Quite simply, Mrs Johns and Mr Tilson, you are making a mistake, both of you, in defending this position. We admitted that our legislation went too far. You're doing the same thing. You're going too far, and it's interesting. You are closing yourselves to that very thing, to the very position that I'm advancing, that is, we admit we made a mistake. You're going the other way and you're saying, "No, we're not."
What we have here is a case of who do we listen to? Who is informing us on this? The people informing you are the College of Psychologists of Ontario. You read that letter into the record. It's interesting again who it is you're listening to when it comes to how you make decisions on some matters.
If you look at the other end of who we're listening to, because we're concerned about this, those who are opposed, those who are saying, "Delete the present provision that you've got and restore what was there in the first place," subsection 66(12) of the SDA, feel so strongly about this that they're saying: "Please don't introduce your amendment. Restore the old one because what you're proposing is bad and what was in place was good."
We are admitting that's a problem, that we can't go back to the old because, as Mrs Singer told us, it's a problem. The following groups, CMHA-OC, QSPC, OWN, PCLS and SMA, as organizations are saying, "Delete this provision and restore the old," and we say that's going too far. That's what we had. That's a lot of organizations, however, saying, "Restore what we had."
Then we move on to another list of people. We go to the organization PPAO, which says, "Electric shock as aversive conditioning should be permitted only where," and they give a whole list of safeguards because they're very concerned about it. That's why we're concerned. It's not a social democratic position. It's a position that's advanced by many groups and we're worried and we're saying, "Let's listen to them." They say that these are the limitations or the conditions as to where you permit it:
-- "the patient is at risk of sustaining serious bodily harm if the treatment is not administered;
-- "the patient or substitute decision-maker consents to the treatment in writing;
-- "the person consenting to the treatment understands that consent may be withdrawn at any time;
-- "the treatment is in accord with standards for behaviour management and behaviour modification programs established by the government;
-- "the treatment is to be administered in a facility designated by regulation under the Health Care Consent Act; and
-- "the Consent and Capacity Board makes an order authorizing the treatment."
That's PPAO. They're saying, "Here are the conditions under which it will happen." One of them is the very one you're worried about: "The patient is at risk of sustaining serious bodily harm." It's covered by what we have here, what's proposed here by this amendment and by our amendment that puts more conditions.
Further down the list are those who say, "Permitting substitute decision-makers to consent to the use of electric shock might encourage the unnecessary use of this treatment." There are three organizations or three types of people who have said this is a problem, and they are NMHSN, LBWAC and Galli. They said, "If you leave it to the substitute decision-maker, this might encourage the unnecessary use of treatment."
Here's another statement made by many other organizations. They say, "Electric shock treatment should require a court order," more than the capacity board. Those who say it should require a court order are TMCA, LAW, ACE, FMHA, APR and OACL. These are organizations saying: "The capacity board isn't sufficient. We want it to go to court."
Then there's another statement made by other organizations who say, "Electric shock treatment should not be given to anyone without his or her consent." They are CMHA-OC and CMHA-W.
It goes on. "The treatment should not be reinstated. However, if it is, there should be standards and controls and a protocol established to first ensure that all other available treatments have been ineffective; the person is at serious risk unless the ECT is administered; the facility is authorized to provide this treatment; and it has the authorization of the board."
How can you reject all these positions, the safeguards that these people are advancing? How can you reject their concerns? It baffles me completely that you should. Your reliance is completely on the College of Psychologists and what you're saying is: "They know what they're doing. Go back home, everything is okay."
Mr Tilson: You're saying they don't know what they're doing? You're not saying that surely?
Mr Marchese: I'm not advancing that argument. I'm saying that what I heard you saying is -- you read this letter from the College of Psychologists into the record -- you're convinced that they cannot do any wrong, that they wouldn't do it to hurt anybody, that everything is all right and that what all these organizations are saying is perhaps not right. They might have some concerns but they're wrong, because we really trust the psychologists, because we know what they're doing. So disregard the opinions of all these organizations and individuals that have spoken up on this, because as well-meaning as they are, they're simply wrong.
I'm not sure you want to say that. You didn't say that, but by implication that's what you're saying, in my view. That's the effect it has when you deny them this concern. What is before us is just one condition that says, "Bring it to a capacity board." We have stronger conditions. This is yet just one condition that says: "Bring it to a capacity board. Let them determine whether it should be done."
I've argued earlier that if you bring it to a capacity board, they will say yes to a case like Mrs Singer. But what it does is to give a control mechanism, a mechanism for review. Do you want to take that away? Why would you do that? On what political, ethical, moral, intellectual grounds would you do that, except to say, we trust the psychologists will do the right thing? How could you do that?
Please don't disregard the opinions of all the organizations that I've read into the record who have serious concern about this. Please be informed by them; do not reject them. Because if you vote against this motion, you are rejecting their serious concerns around this.
Mr O'Toole: I just want to clarify, being new here, and I've just listened very intently, we are dealing with faradaic stimulation, not the traditional shock therapy, the difference being that it's sort of low voltage versus somewhat higher voltage. Is that what faradaic stimulation is about? It's like walking across a wool-carpeted floor and touching a switch or a piece of metal. It's light voltage. Is this something that would stun someone or put them down? I want to make it very clear, because I'm sort of understanding that we're approving the traditional Frankenstein kind of shock therapy, and certainly that's not what the clinical information I have would lead me to believe. It's light voltage, it would not render the person harm, as a clarification.
The Chair: You're correct. It is not --
Mr O'Toole: So it's not shock therapy but faradaic stimulation.
The Chair: Yes.
Mr O'Toole: So we'll just make sure the record's very clear that is what we are considering. Now, secondly, the two groups, and all the letters behind them, Mr Marchese has read in there, basically the college, which is a regulating body, as are doctors, the rest -- they are somehow legitimized, they've gone through a process -- and we have an eminent person suggesting that it should be used, suggesting also that every other available treatment option should be considered. So it's kind of one opinion versus another, not much different than what's actually been happening here for the last two hours, none of which is actually validated. We're all just full of -- not faradaic, but something similar.
We are dealing with the consent to treatment. First and foremost, this is really the problem I have: Who is the legitimizing body? Is it the exact person who has been given the power of consent, to advocate on behalf of someone, and on their say, would they be allowed to proceed with -- we dealt with what was elective or experimental surgery earlier on. Would it be then subject to review by a higher authority, this permission body?
Who actually has legitimate authority? The person who has the power of consent or the board? The government? Has the state got control here or the person who we were trying to give the control back to, the family, who have been through a lifelong tragedy of trying every possible treatment remedy and have finally exhausted it and come to one more, perhaps experimental, perhaps not thoroughly legitimized in all the medical journals.
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Do you understand what I'm saying? Mrs Caplan, I would ask the question more specifically of you --
The Chair: I'm sorry, I don't know whether it's proper.
Mr O'Toole: Who's making the decision, the state or the person who's --
The Chair: Mr O'Toole, I don't know whether it's proper to be asking the opposition members without their consent.
Mr O'Toole: It's clarification.
Mrs Caplan: I'm happy to answer it. It's my amendment.
The Chair: Okay.
Mrs Caplan: I'd be happy to clarify the amendment as it has been proposed --
Mr O'Toole: No, no. One specific question: Who's the decider?
Mrs Caplan: -- so it was what happens under this legislation versus what the amendment would produce.
Mr O'Toole: I'm the person who has the power of consent to treatment and I've asked, after exhaustive testing, to use this faradaic stimulation.
Mrs Caplan: You wouldn't have to ask to use it. Under your legislation, if you were the guardian or decision-maker for an incapable person, this legislation would not require any safeguard in how a decision was made to use faradaic stimulation on an incapable person. If they were in a Comsoc facility we're satisfied that there are the protocols and the procedures in place, that there are safeguards there to protect vulnerable persons. In fact you should know, Mr O'Toole, that there's only one Comsoc facility in the province that provides this procedure because it is so controversial.
What our amendment says is not that the state should make the decision -- the state makes the decision now in Comsoc facilities as to what the protocols are -- but outside of a Comsoc facility what we're saying is that the Consent and Capacity Board, which you construct in this legislation, should give permission before any individual who has all power over an incapable person outside a Comsoc facility should be able to seek and have this treatment provided by a doctor or a psychologist in their office, in their home or in a group home; that there should be the same kind of safeguards outside of a Comsoc facility as there are presently inside.
It's quality control, quality assurance. Comsoc has that by having those protocols and procedures. This procedure is done as a last resort and it's not done lightly. With your legislation, without our amendment, it would open it up to allow the decision to be made --
Mr O'Toole: By the caregiver.
Mrs Caplan: Not necessarily the caregiver, no. It would be the person who has control, whether it's a guardian or a substitute decision-maker; it may or may not be the parent. The truth is you don't know who it is. That's the issue, and there would be no safeguards to protect the vulnerable person.
While we may have some concerns about the use of this therapy on competent people, competent people can decide whether or not they want it, but vulnerable people who are deemed incompetent under your legislation would have no protection outside of a Comsoc facility.
Mrs Johns: A point of clarification, please: In section 19 the substitute decision-maker has to consider the best interests and wishes of the person they're making the decision for.
Mr O'Toole: So the substitute decision-maker ultimately, however close they are to that individual patient, is the person who goes through the process of all the treatment and finally says, "In the interests of saving this person's life or other parts of their body, let's give this a try." They can also withdraw that permission, as opposed to some board or some appointment group coming in and reviewing that.
Mrs Caplan: Monitoring. The issue is whether you believe that this -- I'm going to use the word "procedure" because the jury is out as to whether it's a treatment or not -- whether you believe in your heart that this treatment should be permitted without safeguards outside of a Comsoc facility. That's the issue. It is so controversial that the previous government banned it, although I think they believe that that ban went too far.
Mr Marchese: Who said that?
Mrs Caplan: Everybody has agreed that a ban goes too far. So the question is, how far do you go in the other direction without safeguards?
Mr Marchese: The other way, completely.
Mrs Caplan: Is there some reasonable safeguard that just protects the vulnerable person that should be in place? We say there is. We're saying we're satisfied that in a Comsoc facility the safeguard is there. Our concern is that because of the controversial nature of this procedure, you would be wise as a government to put the safeguard in place outside of a Comsoc facility, that would require permission from a body that is there to add some accountability. That's all. It's protection.
Mr O'Toole: I understand. I know it's the person who gives consent, technically.
Mrs Caplan: That's right.
Mr Marchese: Are you ready? I'm ready for the vote.
Mrs Boyd: I'm sorry. I happen to be on the list.
Mr Marchese: Oh, I'm sorry.
The Chair: We have at least two speakers yet to go, and we will hear again the same arguments. Mrs Boyd and then Mrs Johns.
Mrs Johns: I'm not on the list.
The Chair: I thought you were.
Mrs Johns: No, thank you.
The Chair: Sorry. We have one speaker and then we'll have the question.
Mrs Boyd: Mr Chair, I'm very sorry if a member who was not present for the presentations takes exception to the fact that those of us who feel very strongly that there is no protection for the vulnerable in the law that's currently in front of us and wants to talk about this as being some kind of a political issue. It is not a political issue, it is a very serious problem.
There are very strong beliefs and feelings and concerns on both sides of this issue, and both the Liberals with their amendment and our amendment that comes later on under section 19.1 of the act were efforts to try and come to a compromise between the banning of this on the permission of substitute decision-makers and the allowing of it under certain circumstances.
It is not some board that's appointed, it is the board that your legislation creates that is making decisions about the capacity and about the appropriateness of the decisions that are being made in the case of incapable people, in the case of the Liberals. In ours it was the court, which was what was asked for by the majority of presenters who came before this committee saying they did not want a restoration of the ability of substitute decision-makers to use this particular procedure for aversive conditioning to control people's behaviour.
This is a very serious issue and it is not something that is just out here and people are just trying to prolong this discussion. I think you do us a disservice by imputing those kinds of motives, and it's not something that we do in our traditions in the Legislature. We try very hard not to and we deserve to be called on it when we do.
I think, Mr Chair, that it is quite clear from the way this discussion has gone that the government is not prepared to move on this. On your heads be it.
The Chair: We have unanimous agreement to split the vote, and we are dealing with the amendment being subsection 9(3) only and then we'll come to subsection 9(4). Shall the amendment, subsection 9(3), pass?
Mr Marchese: On a recorded vote, Mr Chair.
Ayes
Boyd, Michael Brown, Caplan, Marchese, Ramsay.
NAYS
Boushy, Johns, Leadston, O'Toole, Parker, Tilson.
The Chair: The amendment is defeated.
We are now dealing with the second portion, being subsection 9(4). Shall the amendment --
Mr Marchese: If (3) is defeated --
Mrs Boyd: It's defeated.
The Chair: That may be, but I guess we'd better record our vote.
Mr Marchese: Can we get an opinion from Ms Bryce?
Clerk of the Committee (Ms Donna Bryce): Yes, it's redundant now.
The Chair: Is it redundant? Legislative counsel has advised that it is redundant. Would you withdraw the second portion, Mrs Caplan?
Mrs Caplan: There's no point. You can't have the second without the first.
The Chair: Thank you. I would now ask, shall section 9 pass? All those in favour?
Mrs Caplan: Just a minute. We have a new section 9.1.
The Chair: Yes. We deal with that separately, I'm told.
Mrs Caplan: That's fine. I just wanted to make sure we were dealing with the separate section.
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The Chair: We're coming to it, yes. We're dealing with section 9 and I've asked for everyone in favour of the motion -- Mr O'Toole?
Mr Marchese: Wake up. There's a vote here, John.
The Chair: Thank you. All those opposed? Section 9 is carried.
Mrs Caplan: Was that a recorded vote?
The Chair: No, it wasn't requested.
Mrs Caplan: I'd like it recorded, please.
The Chair: Is there unanimous consent to have a recorded vote? We've already voted; that's the reason I'm told --
Mrs Caplan: I thought there would be a recorded vote.
The Chair: There was on the amendment.
Mrs Caplan: I wanted to ensure that I called for it. Is there unanimous consent to allow a recorded vote?
The Chair: No objection.
Ayes
Boushy, Johns, Leadston, O'Toole, Parker, Tilson.
NAYS
Boyd, Michael Brown, Caplan, Marchese, Ramsay.
The Chair: The motion is passed.
We are now dealing with a new section, 9.1, which I believe is contained on page 98a.
Mrs Caplan: I move that the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following section:
"Meaning of `excluded treatment'
"9.1 (1) In this section,
"`excluded treatment' means a treatment that is excluded from the definition of `treatment' by clause (g) of the definition of `treatment' in subsection 2(1).
"Administration of excluded treatment without consent
"(2) If a health practitioner who proposes an excluded treatment for a person is of the opinion that the person is incapable with respect to it, the health practitioner may administer the excluded treatment to the person without the consent of the incapable person's substitute decision-maker if,
"(a) the incapable person is not objecting to the excluded treatment;
"(b) the health practitioner does not know of a wish not to have the excluded treatment expressed by the incapable person while capable;
"(c) the health practitioner does not know of any objection to the excluded treatment by the incapable person's substitute decision-maker; and
"(d) the health practitioner is of the opinion that the excluded treatment is in the incapable person's best interests, having taken into consideration the factors set out in clause 19(2)(c)."
This is companion to the previous amendment that was put forward on the issue of low risk and this puts in place some protections to make sure that while we dealt with the technicality of is it or is it not considered high risk or low risk, this allows the consideration to be given as opposed to just opting into the act. It actually states the taking into consideration wishes, if known, and also that the incapable person is not objecting and that you believe it's in their best interests. It goes one step beyond what we dealt with earlier, where we brought in the Bohnen amendment, is the one I was referring to. This is companion to that, where it just says you don't have to opt into the act; another alternative that you have is to consider whether this low-risk treatment is something that the incapable person would consent to, is in their best interests, and if there's no decision-maker around for the purpose of opting in, it allows for treatment to commence if the incapable person is not objecting. So it adds some interest test on the part of the individual.
On the other side we gave protections to the health care provider who wanted to opt into the act when there's a substitute there. This is where there is no substitute. This is not an emergency situation. We thought this was a thoughtful addition to the legislation because, just to explain fully, this is not the emergency situation, this is dealing with the low-risk treatment, where there might be some question and it just allows that if you think that the person would agree if they were capable, it's okay. That's the intent. It's just to put the person's interests into the equation. The Bohnen amendment protects the providers, and we've accepted that. We think this adds a little bit of protection for the incapable person where there's not a substitute readily available. It allows the treatment to go forward if the practitioner deems that it's in the patient's best interests and they're not objecting. If they are objecting, then the other parts kick in.
Mrs Johns: If we could just debate for a few minutes. We haven't had much time to look at it. As I understand this, and I've been looking at it a little bit over the last little while but I haven't really had a lot of time to look at it, what you're proposing is that if there is no consent to the treatment in section 2, and he has no objection, then the treatment goes forward.
Mrs Caplan: Right.
Mrs Johns: In our act, if it's low risk, then the health practitioner just goes forward with the treatment.
Mrs Caplan: Whether they object or not.
Mrs Johns: Whether they object or not. The reason we have put that in, from my reading throughout the four weeks, is because the doctor makes an assessment within his capacity or his ability -- his standards, if you will -- about the liability versus the amount of risk associated with a specific item that's going forward. If there's no risk to making a stitch in a person's arm, they may well do that if the person is objecting. For example, an Alzheimer's patient or someone who's unhappy with a doctor, frightened of a doctor or something like that.
Mrs Caplan: In this situation, Mrs Johns, in that case, for example, where the practitioner would know that when the person was capable they would not have objected to having a stitch put in, they're protected. You're quite right, under your previous amendments, which we supported, the way the act works now is that there's liability protection, blanket liability protection, and you've mentioned the word "liability." If a practitioner provides a treatment to an incapable person in good faith, there's protection against liability, and that's fine.
Mrs Johns: If they opt into the consent.
Mrs Caplan: If they opt into consent to treatment, they get the liability protection. So there's a big incentive to opt in. What this says is you don't have to opt in in order to have that protection as long as you've considered: Is the person objecting? What would their prior wishes be as far as what you're about to do to them? Are you aware of any prior objections, or is there a substitute decision-maker around to assist with that? It's just a bit of protection for the individual as well as having given protection to the practitioner. So what it says to the practitioner is, "You are getting under this legislation protection against liability by opting into the act, even for low-risk treatments." There's no suggestion that there will be battery charges possible. That was what Ms Bohnen came forward with. You've now added those protections.
What this one says is that where you have excluded a treatment, it's very reasonable to consider how the incapable person would feel and react. By thinking about that, the protections are there as well. So this is the balance. On one side you've considered the rights and obligations of the practitioner, and here you're considering the wishes of the person. That's why we've put number one, if they're not objecting, you've got no problem; if they are objecting, you'd better think about what you are aware of. That's all it is.
Mrs Johns: It seems to me you're extending the liability to the practitioner even further by saying if the person doesn't object and it's a low-risk treatment; whereas before, the practitioner would say, "Okay, under the common law, I could be challenged with this." You're saying no, extend the liability to them.
Mrs Caplan: That's right. That's exactly right. Because what you've said is that they consider, is the person objecting, what their wishes might be, and that's the good faith, best interest test. We think that's in the individual's interests. We think that the providers would have no objection. In fact, it protects them. These are for the low-risk treatments, that they would have to opt into the act in a formal way. We think this is a good idea because you're dealing with those excluded treatments. That's the purpose.
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Mrs Johns: I have a problem with that, first of all because I believe if it's a low-risk treatment and the doctor is prepared to take the liability for that, that should happen.
Mrs Caplan: Why?
Mrs Johns: Because he's the one who's assessing if it's low-risk or not.
Mrs Caplan: You have given liability protection from any high-risk treatment of an incapable person under your legislation. We're now talking about the excluded acts. The risk of liability is very, very low. All this puts into place is a view that they have to consider: Is the person objecting or not? What are their wishes? The issues of liability are a red herring; that's not what the issue is.
Ms Perun: This is just another issue that we had with respect to clause (c) as well. You seem to be saying if the substitute decision-maker is not around, but (2)(c) seems to indicate that's not really what is intended. So I'm just wondering if you could --
Mrs Caplan: In the first two cases, there may not be anybody around. So you consider, are they objecting and are you aware of prior wishes? This is low risk and you do not need consent from a substitute decision-maker for low risk. The third case is, is there any concern being expressed by the substitute? If there is none, go ahead; no problem. The last case is, are they of the opinion that this is in the interests of the patient? If so, again, you're dealing with low risk. You're just saying these are the things you have to consider. In the first two cases, there's no substitute around; in the second two, there may well be. That's why there are four -- (a), (b), (c), (d). Do you have a problem with it?
Mrs Johns: Mrs Boyd has her hand up, so I thought I'd hear what she had to say.
The Chair: Mr Tilson is next, then Mrs Boyd.
Mr Tilson: I just want to make sure I understand the amendment. Do I understand you to say that if there's a minor treatment --
Mr Marchese: Low-risk.
Mr Tilson: A low-risk treatment, thank you -- with these certain situations, for example, "(a) the incapable person is not objecting to the excluded treatment," so in other words, if the incapable person does object, you have to have consent. That's what you're saying?
Mrs Caplan: What it says is, with a low-risk treatment. Now we're not talking about the treatments that are included under the legislation.
Mr Tilson: Yes, that's right; the low-risk treatment.
Mrs Caplan: This is the stuff that's excluded. If there's no objection, go ahead. If there is an objection, then you have to say, are you aware of a prior desire, wish, whatever or something that has been expressed while the person was capable? Then, if you know that they would have said, "If I break my arm, set it," or -- mind you, that would be a risky one. We're talking about something minor; clean a wound. That's it, you're talking about cleaning a wound or syringing an ear.
Mr Tilson: I'm wondering how restrictive you're making this. In other words --
Mrs Caplan: In fact, I think we're opening it up. It think it makes it less restrictive.
Mr Tilson: All right, but I'm wondering; for example, a low-risk treatment, a blood test. So a doctor or a health practitioner is going to administer a blood test and, looking at the first one, which is clause (a), the incapable person pulls away, does that mean that the health practitioner has to go and get consent?
Mrs Caplan: No, not at all. If the incapable person is saying, "I don't want the needle," then the --
Mr Tilson: What if they just pull away? What does that mean? That would mean they don't want it.
Mrs Caplan: That means they're objecting, and if they are objecting, you go to step 2, which is (b), (c) or (d).
Mr Tilson: So you're going to make a doctor get a consent for a blood test?
Mrs Caplan: No. This does not require a consent; what it does require is some discussion and communication to determine what is in the best interests of that patient for a low-risk treatment. We'll use the example of the insulin injection.
Mr Tilson: Well, let's stick to the blood test.
Mrs Caplan: This person has been a diabetic all of their life, they've taken insulin all the time, they're in a hospital environment, they know that it's time for the insulin injection and, for whatever reason, the patient retracts. The doctors know that this person has always had insulin injections and would continue to want them. They can administer it; no problem.
Mr Tilson: Let's just stick to something simple like a blood test, like pricking one's finger to get a blood sample. If an incapable person says, "No, I don't want that," or doesn't say anything, just simply pulls away, aren't you going to put these health practitioners through unbelievable hoops? This is what we complained about in their legislation.
Mrs Caplan: That's not the intention.
Mr Tilson: I know it's not your intention, but in effect that's what it's going to do.
Mrs Caplan: The intention is the opposite. What you've done is, under the legislation, you've given complete freedom from liability for all of the big stuff, the harmful stuff. For the excluded low-risk treatments, you've now brought in an amendment that allows them to opt into the legislation. All this says is, if the person is not objecting, you have no problem, but if they are objecting, maybe you should see if there's a substitute around or see if you're aware of the person's interests or get some direction before you proceed.
Mr Tilson: I feel there's going to be some low-risk activity that it just seems preposterous to get --
Mrs Caplan: But if it's low risk, there's no emergency. Why would you have an objection, when there's a low-risk procedure, to talking about it before you proceed to force someone?
Mr Tilson: Somewhere along the line surely you can't make these doctors -- and as I say, I'll stick to the blood test; I don't know of any other simple example. That's about as simple a test as you could have or as simple a treatment as you could get. But with your phraseology, with due respect, if an incapable person objects -- and objecting could be simply pulling away -- then the doctor has got to do something, under your amendment. I think doctors are going to say, "Oh my goodness, they're going to be telling us how to practise medicine pretty soon."
Mrs Caplan: I think you're not taking the reality of what this would do. All this is intended to do is to give some consideration to an individual who is deemed incompetent and incapable and is objecting, to encourage some communication. You're not in an emergency situation; you're just saying, "Check out and make sure that's what's in the interests of the patient."
Mr Tilson: I know exactly what you mean now.
Mrs Caplan: I don't think it will fetter or encumber in any way the procedures and the treatments. It will encourage, as we heard time and again, the kind of discussion and communication between doctor and patient, or nurse and patient, that we know actually improves treatment. All it does is say that when someone is objecting, you have to have some discussion with them; that's all it is.
Mrs Boyd: I wonder if I could just get some clarification from Mrs Johns. I understood her to say that if this were accepted as a new section, talking about excluded treatment, it would mean that the common-law protection on these things was no longer there for people. Am I right?
Mrs Johns: Can I just get a legal opinion on that?
Ms Perun: The common law applies to things that are excluded from the definition of treatment. That's what we've basically said in section 7. So for the things that are left outside of the act, the common law applies, and the common law provides that you have to get consent; at least, there is a law saying it would be an assault to do something to someone.
What the Linda Bohnen amendment does, section 2.1, is allow a health practitioner to opt in to the legislation, essentially meaning that where the health practitioner decides to opt in to the legislation, the whole act would apply, including ability to go to a substitute decider for permission for a low-risk procedure where the person is incapable and perhaps objecting to the procedure.
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Mrs Boyd: If I recall the conversation at the time we passed your amendment to section 7, the Bohnen amendment essentially said that if the doctor defines the treatment being given as being under section 2.1, then that's what you mean by opting in. In other words, they make that definition. If they don't define it within 2.1, then they are under the common law and any liability that may occur occurs under the common law as is usual. While I believe Mrs Caplan is quite right that the issue of liability is probably very low, given that you've already saved everybody from liability on anything that's a serious treatment, I'm not sure why anyone would win out of this amendment. I understand what it means. I'm just not sure, if I were in a position to advise someone, whether I would think that this was good or bad. It seems to me it's unnecessary.
The Chair: If there are no other comments, shall the amendment proposed by Mrs Caplan pass? All those in favour?
Mrs Caplan: Actually, I'm going to withdraw the amendment. While I think that it would be helpful and useful, I don't think it's going to pass. But more than that, I'm going to withdraw the amendment because I don't think that it achieves the purpose that I had hoped it would.
The Chair: This is a complex field and bill, Mrs Caplan.
Mrs Caplan: Yes, it is.
The Chair: Very much so.
If we can pass to section 10, there are no amendments suggested. I therefore would ask that section 10 shall pass as read. Any objections? Carried.
We're proceeding to section 11 and we have one amendment.
Mrs Boyd: I move that section 11 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Included consent
"11. Unless it is not reasonable to do so in the circumstances, a health practitioner is entitled to presume that consent to a treatment includes,
"(a) consent to variations or adjustments in the treatment, if,
"(i) before the consent was given, the health practitioner advised the person who gave the consent that the variations or adjustments were likely, and
"(ii) the nature, expected benefits, material risks and material side-effects of the changed treatment are not significantly different from the nature, expected benefits, material risks and material side-effects of the original treatment; and
"(b) consent to the continuation of the same treatment in a different setting, if,
"(i) before the consent was given, the health practitioner advised the person who gave the consent that the same treatment was likely to be continued in the different setting, and
"(ii) there is no significant change in the expected benefits, material risks or material side-effects of the treatment as a result of the change in the setting in which it is administered."
Just to give you the reasoning on this, variation in treatment was something we heard from a number of people as an element of fear in this bill. It was believed, although I think people understood the intentions of the government were to ensure that treatment was continued under changed circumstances -- and I understand exactly why that would be so. We certainly heard a lot of fear that in fact people would be moved to other locations under this without their consent. I think we had a number of times when that was clarified for people. That was a real issue for a lot of people.
I have a different concern, and that is that when obtaining consent for a treatment, it's probably pretty important that physicians outline for the person making the decision, whether it's the individual themselves or a substitute decision-maker, "We will try this. If this doesn't work, we will go on to this, this and this," and that was certainly what was envisioned by the notion of a treatment plan in terms of the act.
I think the way 11 is worded, it gives permission to a physician not necessarily to present the full range of what may happen in terms of a treatment plan. In other words, they agree to something and then they make the assumption that if that isn't working, they can move to something similar if all these conditions apply. I think that's where the real problem comes in. I'd like to quote Judith Wahl from the Advocacy Centre for the Elderly, who spoke about this section. She said:
"These presumptions take away the right of a person to decide whether they want a variation of a treatment, such as a heavier or a lighter dose of a medication. They take away the right to decide whether a treatment appropriate in a hospital really should continue in a nursing home. Thus autonomy is undermined.
"These presumptions give too much authority to the health practitioner to assume that a treatment really is just a variation on something to which the person has consented, or that a person would just as soon have a treatment in one location or another."
I think that presentation to us really outlined what the concern with this is, that it gives a licence to, particularly, a physician, but frankly any health care practitioner, to make assumptions about consent to treatment that may not even have been implied when that consent was originally given. I think we need to think very seriously about the problem that was identified for us of what does happen when someone is on a treatment and moves to another location. I think that is a serious issue.
But that's a continuation of treatment in a different setting, where you would surely have some reason to assume that that removal might occur. This is exactly where the issue arose for, particularly, some of the mental health advocates whom we saw appear in front of us, that they would not want to see the possibility of their consent to treatment in a general hospital setting, for example, necessarily implying consent to removal to an Ontario psychiatric hospital with the same treatment. But the concern is there. I mean, that's what we kept hearing, and we have only your word for it, frankly, that this is not what the situation would be.
Mrs Johns: As Mrs Boyd says, I have put this point of clarification on the record three or four times and I guess we're talking right now about 11(b) where in effect what's happening is that we're using the same treatment that someone is taking. Maybe what the act is saying is that the same treatment may continue in a different setting without the necessity of a new consent form. What Mrs Boyd is suggesting in her 11(b)(i) is the doctor has to tell a person that this medication will likely take them to another institution, a totally separate kind of ideology.
I don't want you just to take my word for how the act reads. I think we should hear from the ministry then. I've made that clarification and people's lights have gone on as I have said that, I believe. But let's get a clarification from legal counsel then if you don't think that's what it's saying, because I totally disagree with you on the intent of that section. So section 11, please.
Ms Perun: Basically all section 11(b) says is that a health practitioner is entitled to presume that consent to a treatment includes consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side-effects of the treatment as a result of the change in the setting in which it is administered.
All we're dealing with here is taking the treatment and moving it with the person wherever they are. A treatment itself is not admission, and the legislation makes that clear in the definition of treatment, specifically excluding admission issues. "Treatment" is not the admission of a person to a hospital or other facility. So if there's some concern that once you consent to a treatment therefore you're also consenting to a change in setting, that is not the case, because treatment does not include the admission of the person who is excluded in clause (e) under the definition of treatment.
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Then section 22 of the legislation deals with admission itself, providing that where a person is incapable of a treatment decision, a substitute decider can consent to the person's admission for the purposes of that treatment. So again, section 22 separates the issue of admission and the issue of treatment and says that where a substitute decision-maker consents to a treatment on any capable person's behalf, that substitute may consent to the incapable person's admission to a hospital or a psych facility or to another health facility prescribed by the regs for the purpose of the treatment.
Section 22 makes clear that admission per se is not a treatment and that in fact these are two separate issues. So all that 11(b) attempts to achieve is to indicate that if, for example, someone comes into a hospital with their heart medication but they're being admitted for the treatment of a broken hip, that heart medication can continue. There should be no presumption that that should stop until a new consent is obtained. It's only the treatment that flows with the person, and 11(b) does not deal with permission to admit into a setting.
Mrs Boyd: May I ask another question? The issue that's raised by the Advocacy Centre for the Elderly also goes the other way and says whether a treatment that's appropriate in a hospital would really be appropriate, for example, in a nursing home. Most nursing homes don't offer oxygen therapy. There are very specific ones that offer oxygen therapy. If, for example, someone were under a treatment and one of the ways in which they were persuaded to consent to that treatment was that if one of the side-effects were to be difficulty breathing -- they are in an acute care hospital where oxygen is available and they agreed to that treatment on that condition, and then it was decided that they would go to a nursing home and oxygen wasn't necessarily available in that nursing home, which is more the rule than not -- would it be appropriate for that to be deemed as consent for that treatment to continue, or does that change the issues?
I think the material risk may change, and that may be exactly the fail-safe we need. I just need a legal opinion as to whether that would solve the issue that was raised by the Advocacy Centre for the Elderly. I think it was more that way: moving from a hospital to a long-term-care facility and the difference in the emergency availability in a long-term-care centre with the same treatment. I think that was the concern that was being expressed, and we certainly heard others express that concern. They wanted that permission to change the location, particularly if the person were incapable, to keep the treatment going. If the person gave consent to the treatment and then became incapable, they wanted the ability to continue the treatment, if you understand what I mean.
Ms Perun: So the issue is if they move to a different setting and it's a different type of treatment that would --
Mrs Boyd: No, not a different type of treatment; just that there are different procedures available. No crash cart at most nursing homes, for example. There are different emergency procedures that are available in an acute care hospital than there are in a long-term-care facility. My question is: Do you think that issue is resolved by your provision around material risk? If it is, we'll withdraw the amendment.
Ms Perun: Again, it's very specific -- it says if there is no significant change in the expected benefits, material risks or material side-effects. So again, if you change the venue to such an extent that the treatment does result in a change in the expected benefits and material risks, then you would have to get a new consent.
Mrs Boyd: You see, the problem is, if, for example, we take any medication -- and there are many that are sedatives or painkillers that depress respirations -- and people are taking them in a hospital where oxygen is available, so that if the respiration becomes depressed enough, oxygen is immediately available, if you give those people those same medications, move them to a facility where oxygen is not available, is it your opinion that that would change the material risk and that we ought not to worry about that?
Ms Perun: I would think so. I mean --
Mrs Johns: If you change the material risk so they would not be able to move that person as a result of that, correct? It's a legal opinion --
Mrs Boyd: This is a legal opinion I'm asking for, not a political opinion.
Ms Perun: How they get to move the person to a different location is outside the scope of this provision. Basically, other laws would have to apply. For example, the long-term-care legislation deals with admission to a nursing home and that kind of thing, so other laws would apply. All this says is that treatment, if it can be moved with the person, then you can presume that consent moves with the person. But the issue of admission is completely outside --
The Chair: Excuse me. The question has been asked twice and it's not a complicated question. I don't think you have an answer yet.
Mrs Boyd: No.
The Chair: It's simply that the example that was used was very simple. A person is getting some type of treatment and by moving them to a facility which does not have emergency provisions, for instance -- could that be done and the same treatment continued or would that come under material risk in the section?
Ms Perun: Well, if it's not available in the next setting, this provision doesn't apply. If the treatment is not available in the other setting to which you're moving, this provision wouldn't apply.
The Chair: We're not talking about the treatment; we're talking about the facility, such as an emergency facility.
Mrs Boyd: Or alternatively, Mr Chair, I'm thinking of a situation where someone has emphysema. They also have cancer. A drug that's given to them to control the pain for the cancer depresses their respiration. They still need the morphine for the cancer pain. In many of these cases, someone would be moved home and in many of these cases, the current rules under OHIP do not allow for the paid provision of oxygen if people's uptake of oxygen is adequate according to the test that they happen to give at any particular time. So someone might, under this, move, especially if they were incapable, they weren't able to say anything or even if they were capable and they really wanted to go home. That would change, it seems to me, the material risk of this treatment and it would seem to me that you would need to renew your consent at that point.
All I'm asking is whether it is your opinion that that safeguard is here with material risk, whether that would be your opinion as well that that would change the material risk and, therefore, the person is protected. Because the real concern of many of the elderly is: They're in hospital; they're not quite acute enough to be in hospital; people are pressing them to move into long-term-care facilities or back home and they want to continue the same treatment because it's making them feel better. Can they be assured that this is going to make a requirement for the health care professional to take into account the difference of the setting in terms of the material risk of the treatment? If your opinion is yes, I withdraw the motion. If it's no, that you're not sure, then I think we need to talk a little bit more about how to make sure that safeguard is there.
Ms Perun: The answer is yes.
Mrs Boyd: Okay. I withdraw the motion.
The Chair: Congratulations.
Mrs Johns: Thank you for probing.
Mrs Boyd: And now it's on the record.
The Chair: The motion is withdrawn and I'll now ask whether section 11 as unamended shall pass. All those in favour? Opposed? None. Carried.
Moving on to section 12, and we have a proposed amendment on page 100 by Mrs Boyd.
Mrs Boyd: I move that section 12 of the Health Care Consent Act, 1995, as set out in schedule A to that bill, be amended by adding the following subsections:
"Consent on a person's behalf
"(2) A person may not give consent to a plan of treatment on behalf of another person if the person is incapable with respect to the plan of treatment as a whole but is capable with respect to any treatment that is part of the plan of treatment.
"Right to speak to a practitioner
"(3) If consent to a plan of treatment is given on a person's behalf, the person has a right to speak to any health practitioner who administers the treatment that is part of the plan of treatment."
Mrs Johns: May I ask a question? I would ask permission to stand this down, and I'll just tell you why. I'm going to ask, when we come back, to split it also because we believe that you've raised an important point in section 2 that may be eliminated in the act. We've caught it just today as we've been going through one more time to look at them. We believe that anybody has the right to speak to a practitioner and so we're not as -- but we would like to look at this overnight and then talk about it tomorrow.
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Mrs Boyd: I'd be very happy to stand it down.
The Chair: Do we have unanimous consent that this matter stand down? Thank you. Section 12 will also be stood down for the consideration of that amendment.
Proceeding now to section 13, shall section 13 pass? All those in favour? Opposed, if any? Carried.
Section 14, no proposed amendments. Shall this section carry? Any opposition? Carried.
Section 15, no proposed amendments. Shall this section carry? Carried.
We have a new section 15.1. There are three in all. The first one is proposed by the government.
Mrs Johns: I move that the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following section:
"Information
"15.1 A health practitioner shall, in the circumstances and manner specified in guidelines established by the governing body of the health practitioner's profession, provide to persons found by the health practitioner to be incapable with respect to treatment such information about the consequences of the findings as is specified in the guidelines."
As we have heard from the time the minister opened our discussions four weeks ago, there was a concern that we had to look at rights advice and the ability to let people know that they are viewed as being incapable. We have listened to a number of people and there have been very opposing views about how we should provide this.
To go over some of the arguments, the CPSO on February 6 said: "It needs to have the latitude of being outside regulations. We can produce very strong guidelines for our members on this topic."
Linda Bohnen said: "I agree with you 100% that there need to be guidelines and that health professionals need to be coached, educated and encouraged to provide rights notification and information. My only quarrel is that I don't think writing a section in this legislation is the way to produce that result. I think there are better, more effective ways of achieving that result."
The Hospital for Sick Children said: "I might add that many of our staff feel strongly about the importance of patients being informed about their rights when genuine conflict occurs and plan to consider developing a policy in the hospital regarding this manner. I might also add that most of us who are guided by our professional ethics feel equally strongly that this is something...to which we are bound by our ethical guidelines under which we practice. We support the removal of the rights advice process from the legislation."
The OMA, when Mr Klees asked if they would be in favour of or opposed to legislation requiring the colleges to establish the guidelines and to enforce them, answered they would be in favour of the college being involved rather than it being mandatory under the act, and that they had no objection to a legislative requirement for the colleges to provide those guidelines.
The Ad Hoc Coalition on February 8 said: "As a coalition we haven't worked out a full description of rights advice, but as a group we tend to agree that it ought not to be in legislation, that it should be viewed as a matter for professional regulation and judgement and that the various colleges could perhaps do something with it."
The Ontario College of Family Physicians said they certainly need to be informed that there's something needed, "but I don't think you need to go into a long documentation that doesn't assist in understanding anything."
The Ontario general hospitals, in answer to a question from Mrs Caplan, Ms Davies said she would be "comfortable with allowing the professional colleges to establish the guidelines or the protocols for how that would be achieved where there is a professional college as long as there is consistency among the colleges."
The Roman Catholic Archdiocese of Toronto said: "As far as people are capable of receiving that information and being able to act upon that information, it's a moral obligation to give it to them. The process can be worked out, but there has to be some kind of process there for them to be able to maintain effectively that which is central to human dignity."
As a result of those deputants and as a result of our talks in caucus about what we believe should happen, we have decided that we need to put this in the legislation so that people would know we were concerned about people who are viewed as incapable.
On top of that, we sent a letter to all the colleges. I hope you have a copy; I gave it out last Thursday. We sent them to all the colleges, but the one I gave out was addressed to Michael Dixon, with the College of Physicians and Surgeons. The ministry has asked in that letter:
"The government is intending to revoke the Consent to Treatment Act and replace it with a new substitute called the Health Care Consent Act. This new statute is schedule A of Bill 19, the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act. We have been holding hearings on this legislation before the administration of justice committee.
"One of the issues raised before the committee is when and how a patient or client who would have been determined by a health practitioner to be incapable of consenting to treatment should be notified of the consequence of the findings of incapacity, including the right of review.
"It has always been the government's view that the existing rights notification provisions in the CTA are overly repetitive, bureaucratic and adversarial. The HCCA does not contain statutory requirements for rights notification. The government is proposing an amendment to part II of the Health Care Consent Act that links information given to incapable persons to college guidelines. In leaving these requirements to college policy, the government has sent a strong message to health professionals that we believe actual and appropriate discussions with incapable patients or clients about consequences of incapacity findings cannot be legislated. Rather, we believe that the professional colleges must set their own peer standards and that colleges will in effect give appropriate guidance to their members.
"This government would prefer that each professional college develop guidelines for its members in providing appropriate information to persons determined to be incapable under part II of the HCCA.
"I am asking for your cooperation in this connection. Please provide the ministry's professional relations branch with a copy of your intended guidelines by April 1. While Bill 19 is not at the point of proclamation, it will in fact be finalized shortly. For the purpose of your intended guidelines, you may assume that the fundamental principles of the HCCA will remain intact.
"Should you require further information, please contact" Halyna at the legal services branch.
The ministry has written to the colleges. These all went out last week. We anticipate that the colleges will do as requested without the necessity of using the powers in section 5 of the RHPA. However, the ministry, as you all are aware, does have the authority under that section to enforce this request, and will do so if necessary.
The Chair: Thank you, Mrs Johns. I think it's fair to say that this is one of the more important issues in this bill we're discussing, so Mrs Caplan and then Mrs Boyd.
Mrs Caplan: I'm not going to read all the presentations that came before the committee, but I did ask legislative research to do a summary, and this only takes us up until -- well, I'll read the memo, and it was excellent research. It says:
"This memo examines the committee hearings from February 6 to February 13 inclusive, during which time the committee heard from 70 witnesses. The committee hearings on February 5 were excluded because no public witnesses were heard. However, hearings from February 13 to the end of the public hearings on February 22 were not included because Hansard was not yet available."
So this takes in about half the public hearings. There were two questions I asked of research. I'm going to deal with the second question, that is, whether witnesses agreed or disagreed with the statement that "there should be a statutory duty for health care workers to advise incapable persons that they had been found incapable and that they had a right to appeal that finding."
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This is the research that was done, and we've heard Mrs Johns read some of it into the record, but what she neglected to read in was the other side, composed of 78% of the presenters before the committee. Thirty-six of the 70 witnesses were in agreement with the need for statutory duty to advise, and the 10 witnesses, or 22%, who disagreed argued as Mrs Johns just has. You presented the view of less than one quarter of those who came forward, and when Hansard is reviewed and research does the second week I think we'll see the same pattern emerge. Three quarters, in fact better than three quarters, of the presentations before this committee asked for a clear statutory obligation.
We have an amendment to a different section, but I'm going to read it into the record at this time because I guess you could put it up at this point. I'd like you to hear what we're proposing because it's not really in conflict with what you've said, although when you read the amendment you've put forward under "Information," it doesn't say anything about an obligation to inform and it isn't clear.
The one I am going to read into the record, which I thought was the most succinct and clearest of all the presentations, came from one of the colleges. While it is true that the College of Physicians and Surgeons; the Hospital for Sick Children; Linda Bohnen, who is a lawyer representing the professional colleges; the psychiatric association; the Ad Hoc Coalition on Consent, Substitute Decisions and Advocacy; St Joseph Moscati Toronto Catholic Doctors' Guild; the Ontario Medical Association; another solicitor, Earl Atnikov; and Ottawa General Hospital -- that's the list of 10 during that week that were identified by research as saying no to a statutory obligation. They were 10 out of 70.
The other 36 agreed with this view. This is the view of another college, the Royal College of Dental Surgeons of Ontario. They said very simply, "In order to alleviate uncertainty in this regard, the college would propose that a specific provision be included in the legislation setting out exactly what is required of the health practitioner."
That sums up what three quarters of the presenters suggested. We have no objection; in fact, my preference is that it is the colleges that do this, but I think we have to be clear in the legislation about what it is we want to oblige them to do. What we've proposed, under section 82.1 of the Health Care Consent Act, is:
"Obligation to inform
"82.1 (1) If a health practitioner or an evaluator finds, in accordance with this act, that a person is incapable with respect to a decision, the health practitioner or evaluator shall inform the person of his or her rights with respect to that decision and any rights to appeal,
"(a) as required by the guidelines established by his or her college, if he or she is a member of college referred to in any of clauses (a) to (r)" -- that's the health professions legislation -- "of the definition of `health practitioner' in subsection 2(1); or
"(b) in accordance with regulations otherwise."
That would cover the social workers and any others you would permit. It gives you the reg-making ability to set out the guidelines, or the use of the ACE evaluation if you chose to do that, and that would be acceptable to us.
"Same
"(2) For the purpose of subsection (1), each of the colleges referred to in clauses (a) to (r) of the definition of `health practitioner' in subsection 2(1) shall establish and publish guidelines governing the responsibilities of its members under subsection (1)."
The difference between what I've just read out and the government's amendment entitled "Information" is that it would specify in the heading on the side, if anybody were looking for a notation, this would say "Obligation to inform," as opposed to "Information."
One of the concerns with this legislation, and a concern that has been raised consistently, is that it is complicated. Somebody is going to open up the legislation and they're going to say: "What's my obligation? What's the obligation of rights advice or information being given? What's the obligation? Is there an obligation?" Nowhere in the annotated notes would it say "obligation," because your information section, listed under section 15.1, as you've got it here, says "Information." While I think it hopes to achieve the intent, I don't think it's clear enough. In fact, it's very fuzzy, and because of its fuzziness, it's ineffective.
I support the intent of it but I'd ask you to consider wording such as we have suggested. If you wish, let's stand this down, take a look at the wording we proposed under 82.1. If you'd rather move it up into an earlier section, we have no objection, as long as there's someplace where there is "Obligation to inform" as opposed to simply "Information." Nobody will know what "Information" means.
We were very cautious in the drafting of our amendment to leave it in the hands of the colleges where there is an evaluator who is a member of a college. But our amendment also captures those who would be evaluators and allow you to set the guidelines by regulation for those given that power by your regulation who are not members of regulatory colleges under the health professions legislation.
I think this is a reasonable request. All we're asking is for clarity. We're asking you to listen to the 78% of presenters who came forward and said: "Be clear about this. Put the obligation in the statute. Let the colleges come up with the guidelines and do their thing, but be clear about it." With all due respect to the legislative draftsmen, your section is mush. It's meaningless. It's not clear. Nobody would understand it. And in its mushiness, it doesn't serve anybody's interests well, including yours, which I believe is a sincere desire, Mrs Johns, to respond to the 78% who came forward and said, "Put something in the statute," and the 22% who said, "Leave it to the colleges." We think both can be accomplished and you can still have clarity in the legislation, and that's what we're asking for.
I would rather not be put in the position of having to vote against this in the hope that maybe you'll do something further on, because I don't think this is clear enough. I'm asking you to reconsider the wording of this so it's actually clear what you're expecting the colleges to do. I think that's a reasonable request.
I would move that this be stood down so that the government could look at the amendment we put forward on page 189 to see if the language could be incorporated so that the obligation to inform is clear, but to do it in such a way that it's left entirely to the colleges or to the government where there is no college.
The Chair: Is there unanimous consent for the request for deferral?
Mrs Johns: No.
The Chair: No? If not, Mrs Boyd.
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Mrs Boyd: Obviously, we don't believe this is strong enough, clear enough, and certainly not that it avoids all the issues around conflict of interest that were raised again and again and again around the issue of the health care practitioner who's making the finding being the one who's responsible.
I would like some definitions here. I see nothing in your amendment that actually says the health care professional must inform the person that they're incapable. In other words, you're saying you're going to leave it up to the colleges to decide whether a health care professional actually has to provide that information to the incapable person.
Then, I don't know what you mean by "such information about the consequences of the findings as is specified in the guidelines." I don't know whether that implies that the health care professionals are being required to explain that there is an appeal procedure, a review procedure of that. It doesn't say that. "Such information about the consequences of the findings as is specified by the guidelines" -- talk about a pig in a poke. This is exactly what presenter after presenter asked you not to do: not to leave everybody hanging out there not knowing what information was required or how it was to be provided.
Mrs Caplan already talked about the numerous groups that applied. We see a terrific split in these groups, for the most part, between advocates and consumer-oriented groups and doctors. Even then, in the groups that opposed this, we heard significant comment, particularly from psychiatrists -- which was very interesting, because of course psychiatrists operate under the Mental Health Act and have for 10 years, where rights advice is a part of that act and is very necessary. The psychiatrists were saying, "Of course it's part of your practice to tell the person and to make sure they know they have a right of appeal," because they've been required to do it all that time. It was the others, the ones who aren't required to do it, who say, "Oh my goodness, we couldn't do this; this would interrupt our doctor-patient relationship," which is nonsense, absolute nonsense.
Given what we heard from the OMA, I think your faith in their willingness and ability to respect the rights and the right to information of patients is remarkable. They begged you not to make them responsible for telling patients, begged you not to put that on them, but they equally said: "Don't have somebody else do it. We don't want anybody interfering with us." What they said again and again by implication is that it isn't important for the incapable person to have this information, yet you're prepared to trust them to decide what information will be given, how it will be given and to what extent the consequences will be explained.
What you are doing is giving an absolute free rein, and it makes the Health Care Consent Act meaningless, absolutely meaningless, because it basically says any health care professional can find someone incapable and they don't have to tell them and don't have to explain to them that they have any recourse to that decision, and they don't have any recourse around the consequences under this kind of situation. All the very worst fears of the vast majority of people who appeared in front of us you have just embodied in this, and some of those fears were on the part of the health professionals themselves, who understood the difficulty represented in trying to make these determinations. In the OMA, for example, there will be a huge difference of opinion between those physicians who have willingly accepted the provisions in the Mental Health Act and those who have not. You are simply throwing this back to all those people.
We have already agreed that the Mirandizing aspect of the way it was done under the Consent to Treatment Act wasn't the appropriate way. We tried to point out that doctors made that the way because they weren't prepared to actually have a patient-doctor relationship; they were prepared to give an example of why governments can't intervene and require them to do anything. They did, and we heard it read out the way a lot of doctors read it out, which I found extraordinarily offensive and I think most patients would find extraordinarily offensive.
That was a suggested form, "These are the points you must do." I agree that probably should never have been provided in that way, but frankly, we were so naïve that we thought doctors would want to make sure that the advice they were giving patients was appropriate, and not in that format. We were wrong.
You now are saying you're going to pass this act and you've written a nice letter asking them to come up with this. You're saying, "If they don't, the minister has in his back pocket the ability to require them to do it, but we're just going to let them have their own way yet again" -- exactly what Dr Singer said you should do. Dr Singer said, "You can't control the docs, so you'd better not try. Just let them do their own thing," and that's exactly what you've done.
I'm terribly disappointed. I can just imagine how disappointed the people are who really thought you were concerned about the rights of the incapable and your assurances to them that their rights would be respected even though you were doing away with the Advocacy Act and the Advocacy Commission and rights advisers.
We certainly will be voting against this amendment, and we will not confine ourselves to talking about rights advice by just allowing all the rest of our amendments to drop. It's too important. I think we're here for quite a long time.
Mrs Caplan: At the beginning of this process I heard both -- actually all three -- of the ministers who have substantive amendments to the legislation saying they were going to be listening to what people said and that they were seeing this as a non-partisan process. Frankly, I feel we've all been here with an attempt to respond to the concerns.
I don't see this as an issue of control. The legislation you brought in in the area of consent to treatment I think substantially improves that which was in place. There were serious flaws. Some were just genuinely misguided, and I hear what Mrs Boyd has to say and I'm sympathetic. However, this isn't an issue of control. This is an issue that I asked of the deputations that came forward, the presenters, because it's fundamental.
What you're doing with this legislation is removing any obligation by anyone to tell someone when they have been found unable to understand and appreciate the consequences of a treatment. That is the definition of incapacity. You have removed any obligation to tell them of that finding and you have removed any obligation to notify them that they have a right to make an application to the Consent and Capacity Board, and you give to the people making that finding of incapacity freedom from any liability when they proceed with treatment.
Again, 78% of the deputations and presenters who came before this committee said that was wrong, that it was reasonable to have a minimalist obligation. Some will say that our proposal is too minimalist, because it clearly states that there is an obligation to inform; that's all that we're asking for.
I can tell you something. If you're not prepared to accept a change to your amendment on page 101 -- when you read it, nobody can understand what that means. "A health practitioner shall, in the circumstances" -- what circumstances? -- "and manner specified in guidelines established by the governing body of the health practitioner's profession, provide to persons found by the health practitioner to be incapable with respect to treatment such information about the consequences of the findings as is specified in the guidelines."
That is one sentence. It is so convoluted that it is unclear what it means, and I think that's unfair to the practitioner, it's unfair to the colleges that will draft the guidelines, and it is unfair mostly to the people who will be impacted because of the fact that it is so unclear.
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The only thing that you've been asked to do and that is central to this legislative change you're making is to protect people by making sure they know when they have been found incapable. I disagree with Mrs Boyd when she uses the word "control." This is not about control, this is not about interfering in relationships; this is saying to someone who has enormous power to declare someone incapable and impose treatment on them -- and they have that right in this legislation, free from any liability -- there's a clear statement in this legislation that you have an obligation to let somebody know what's going on.
We're prepared to leave it to the colleges to come up with the protocol for how to do that, but I don't understand the reluctance to amend the legislation in a way so that people can understand what it means. I read this under the heading of "Information" and I said, "What does this mean?" How is this going to be followed by the colleges in any kind of consistent way and how is it going to tell someone who picks up this legislation that there is an obligation under the legislation which is the tradeoff, the balance to the freedom from liability that is being given?
I don't understand what your problem is with putting something in that's clear. It's not in any way negative. It's not in any way controlling. It leaves to the professional colleges the ability to set out those guidelines and protocols, but it does clearly state that there's an obligation. What's wrong with having a statement that was requested by some of the colleges, including the Royal College of Dental Surgeons of Ontario for one, that was requested by 78% of the presenters before this committee? Why are you saying no to all of them? That is my question.
The Chair: That must be a rhetorical question, I assume.
Mrs Caplan: I'm hoping there's an answer. I don't understand why you're saying no. They've asked for a statutory obligation --
The Chair: Mrs Caplan, you were out of the room when I expressed my somewhat concern that individuals in this committee room say, "I cannot understand why you do not agree with my position," and that is basically the question.
Mrs Caplan: No. That's not what I'm saying, Mr Chairman. What I'm saying is, I don't --
The Chair: Excuse me, Mrs Caplan. Let me finish first. The questions properly directed to the PAs are for clarification, legal opinions etc, not to determine why they disagree with your position. I don't think that's a proper question, it consists of cross-examination and I won't permit it.
Mrs Caplan: Thank you very much, Mr Chairman. What I'm asking is for an explanation from the parliamentary assistants on behalf of the ministers why they rejected a request that was made not by me but by 78% of the presenters who came before this committee.
Mr Marchese: That's a good point.
Mrs Caplan: That's my question.
Mrs Boyd: Since they said they would listen.
Mrs Caplan: Since they said they would listen to them. That's the question.
The Chair: I'm not going to make a formal ruling, but I assume you will not answer that question, Mrs Johns.
Mr Marchese: He's directing you.
The Chair: No. I have no authority to direct Mrs Johns.
Mrs Johns: I don't think I can add anything to that question.
The Chair: Thank you.
Mrs Caplan: In that response, Mr Chairman, the next question I have is, is the government prepared to consider in a positive way any of the amendments that have been put forward by either of the opposition parties?
Interjection: No, they're not.
Mrs Caplan: Are you willing to accept any of the amendments that we've put forward?
Mr Tilson: Just say we have been. There are some amendments that we've agreed to.
Mrs Caplan: From this point on -- you've had a chance to look at them -- are you accepting any of the amendments that we've put forward?
Mr Tilson: We want to hear what you have to say, and hopefully it'll be brief.
Mr Marchese: That's very helpful.
Mrs Johns: I'm not prepared to discuss what we're going to approve and not approve in the future. I can speak to this amendment and to section 15.1. Our caucus has had substantial discussions on this. We believe that this takes in, as I said previously, the beliefs held by people who came to the hearings plus the ministry's and the minister's opinions, so we believe in section 15.1 that our amendment is the one that we like the best.
Mr Marchese: I know what this motion means. I suspected that would be the kind of thing you would come up with and I understand why you're doing this. You're opposed to rights advice and you're opposed to notification of rights. That was clear. You might say no, but from everything we've heard you say and do in committee, you really are opposed to that. You've gotten rid of the rights advisers because "they're intrusive, not necessary and we've got systems in place to deal with it." Because you're opposed to that but you're looking for a way to appear to be responding to what all of these groups have said, you've come up with this kind of wording.
Who do you go to for advice on this? To the doctors. So you're saying, "We'll let the doctors establish guidelines." What will those guidelines say? "We can't tell you, but we'll let them do it." But if you recall, and I know you recall this very well, the doctors didn't want to do this, don't want to do it, but if you force them to: "All right. We'll establish some guidelines if you as a government believe that we need to do it."
That's really what's happening here. Doctors came in front of this committee and said: "This matter of rights notification is really a legal matter. It's not a doctors' matter. We disagreed with that." They also said, "This really hurts our patient-doctor relationship." We don't think so, but that's what the doctors said.
Then one interesting nurse -- I forget who she was -- read out the form in such a way, the Mirandizing way of doing it, that really frightened all of us. We agreed that if that's the way you present rights notification, it's a problem. We were all offended by the way she read it, and she read it in such a way that we would be offended and she had a good effect on us all. We didn't want people to read in that way. We wanted to have doctors speak to the issues of rights notification in a way that is good for doctors and is good for patients. But they resisted. They said, "No, this is really bad." All of you will agree that most of the doctors who came in front of us --
Mr Tilson: Not all.
Mr Marchese: That's why I said most said: "This is not good for us. Rights notification is really not good for our patient-doctor relationship." So you go to the very people who are opposed to it to establish guidelines. What do the guidelines say? "We don't really know, we don't really care, we're just going to tell them to do it and each institution will do it." That's what it says, right?
Mrs Boyd: Each college.
Mr Marchese: Sorry. Each college.
Mrs Johns: It would be reviewed by the legal branch -- on the last page.
Mrs Boyd: That's your note, not ours.
Mrs Johns: "I'm asking for your cooperation. Please provide the professional relations branch with a copy of the intended guidelines."
Mr Marchese: Of course, you will ask them for the guidelines. I understand that, but the point is that you are relying on the colleges to come up with these guidelines, which you will probably agree to, because are you going to write back to them saying: "This is really not good enough. The groups that are opposed to this really don't think that's just good enough"? You're just going to say, "Thanks for the copy." You're going to have it in hand and you'll tell the groups, "We've done this, they're guidelines and everybody's happy." Well, they're not.
That's really the problem we have, and I want to read for the record what a number of groups have said, and there's quite a number. For the purposes of Hansard, it's page 46 of the final summary that was compiled by our research people.
The organization NLS says to establish a new section 16(2.1), which would say:
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"The health practitioner, after finding that the person is incapable with respect to a treatment, shall ensure that the person is given written notice of the finding; the notice (which may be in prescribed form) shall indicate that the person is entitled as a party to representation and has a right to legal services."
Then we have a whole list of organizations. There are 13 that have said the following:
"The act should impose an obligation on the health care practitioner to inform the patient of a determination of incapacity, the effect it will have on treatment and the patient's right to a hearing by the Consent and Capacity Board. If a hearing is requested, health care providers should also be required to provide the board application form, to assist in its completion and to promptly send it to the board."
ARCH says the following:
"The elimination of the obligation to inform a person that they have been found incapable and the elimination of access to independent rights advice for those who have been found incapable might violate the right to life, liberty and security of person, as guaranteed in section 7 of the Canadian Charter of Rights and Freedoms."
Then there are four other organizations that say the following:
"The act should maintain the system of formal rights advice. If it is to be eliminated, however, the act should require that the health practitioner must inform the person of the finding of incapacity, the right to apply to the Consent and Capacity Board for a review of the finding, and the procedure to make application."
Another organization says the following:
"Stipulate that health care practitioners are required to inform the patient of a finding of incapacity. The rights adviser should be responsible for informing the person of the right and process to appeal to the board. The existing legislation was too cumbersome and there should be greater latitude in how to advise the person."
There are four other organizations to say the following:
"Patients found to be incapable by a health practitioner should be entitled to rights advice."
Two other organizations have said the following:
"Stipulate that individuals must be informed of the right to refuse an assessment, of a finding of incapacity and of the right to appeal. This could be accomplished by requiring that any certificate of incapacity issued by an assessor be accompanied by a document outlining in clear and simple terms the rights that the person has to appeal the assessment and the procedures to be followed."
They all have something in common here. I'm not quite sure that these people got together, coming from all over the province, and said, "Let's write the same thing." They don't do that. Their opinions are rooted in the experiences of dealing with people who are vulnerable.
So again I ask you the question, from whom are you getting advice about these issues? If you're not listening to the people in the field, you're not listening. You can pretend you are. You can say there should be some guidelines and that the colleges should do it because that's an easy way out, but you're really running away from the issue. You really are not responding to what people have said.
There is no obligation whatsoever in here to inform. There is none. You don't instruct the colleges, in fact, of that very basic principle. If you're going to have them establish guidelines, please tell them the kinds of things you want them to establish guidelines around so that there's a basis for those guidelines.
If one of them is a right or an obligation to inform, then that's clear and the guidelines will be clearly written around that. But you haven't even instructed them around that particular issue and that worries me. It worries me, because I have heard the doctors come in front of this committee who said, "We don't think this is good," that the colleges that will respect the opinions of those individuals will not write something that will contradict or say anything contrary to what the doctors told us in committee.
We have a serious problem here. We agree with the countless groups about the obligation to inform, and you're taking that away, and through the guidelines there's no clarity; that is for certain. I know what it means. I know you're running away from the issue. That's what it means. But there's certainly no clarity; there's certainly nothing around obligation to inform, and by leaving it to the colleges we are making a big, big mistake.
What my colleague was saying earlier about control was that you're putting, again, power to the doctors, and power is control. That's what I think my colleague was getting at. That's what it means. When you leave that kind of power to doctors, then you control what they say and what they do, and if you don't tell them that rights notification or obligation to inform is important, they're not going to do it, because they told us they don't want to do it. So, my friends, you haven't been listening to the groups that are rooted in communities and rooted in defending vulnerable people.
This motion we can't accept as a reasonable compromise to the position you as a government want to introduce. This is not a compromise. It's not even a compromise. And I know you won't think about it, but all I want to do through these comments is to let those who are watching know you're not fooling us, you're not fooling those communities that came in front of this committee and the obligation to inform is not here. I hope that the people who are watching will call us or will call you to let you know that they disagree with you or that they agree with us, but this we can't accept.
Mr Ramsay: Have you got a number? Give our phone number out.
Mr Marchese: They'll find us. They'll find them too.
Mr Michael Brown: I find this amendment to be extraordinarily interesting and probably an example of politics at its absolute worst. I say that from the perspective that if you look at what are you really trying to do here, I guess if I'm the government, I'm saying: "Well, I want to tell those groups that we did something about this rights stuff. Something had to be done about this rights stuff. See, we did something about it." At the very same time, you're saying to the professions: "Look, we did absolutely nothing. This really doesn't require much of anything and we'll just smooth this by. It's written in such a way that nobody will really understand what it means and everything will be okay." What I think you've done and why it's politics at its worst is you won't have satisfied either group.
We're talking about the most basic rights people have: the right to make decisions on their own behalf, the right to consent on their own behalf. There's nothing more important to anyone in the democratic, the British tradition than those kind of rights. I would say to you I think we've taken many of the common-law rights that people and the British parliamentary systems have had forever, and you're busily destroying them.
You have accomplished exactly the opposite, because I could maybe live with this if there was actual liability for your actions. You've got to remember you've taken all the liability out of this. There is no liability in any real sense to anyone who's making these decisions. I can hardly understand how anybody would be found liable under this legislation for not doing what the legislation suggests.
Given the fact that recourse to the courts, which is a fundamental right of people in democracies, and particularly -- and I think this is our tradition, the British tradition of common law -- this is particularly offensive because it is the most basic right we have.
That's what you're doing, and all we're saying here is, let's have some clarity. Make it clear what it is that you are requiring, and I think there are some valuable suggestions being put forward on how this could be done. No one wants the confrontational point, a way that it has been suggested that under the prior legislation it was happening. It's definitely not the way to go.
But I'm suggesting to you, if you're going to do this, put the liability back in. Don't save everybody from liability. Let the courts decide this, David. If that's what it's about, don't take the rights of British -- well, we're not British subjects and haven't been for a long time. But the due process of common law, what ordinarily could've happened without this kind of legislation, you've taken that away and substituted something for it that I would suggest to you is basically meaningless.
I'm appalled. And I really can't say much more than that. Just try to rethink this. Or, if you can't, let's go to the tort system and let's work it out. But don't vote all rights away. That's essentially what I think is happening here.
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Mrs Boyd: One of the real problems with what you're doing is that those within the health care professions who came before us and said rights advice was good are going to be just as disappointed as the consumers who came and said they needed rights advice in order to feel safe.
I would remind the government members that we had people come in front of us who talked about how they thought it would be better for there to be no Substitute Decisions Act, no Health Care Consent Act, if there weren't advocates, because without an assurance that due process would be followed, that in fact people's rights would be respected under those pieces of legislation, it would be meaningless to them and it would be very dangerous for them to agree to anyone else making decisions on their behalf and it would be foolish for them to agree that it was wise to have any bill that facilitated substitute decision-making.
I'd like to make it clear that every health professional who came in front of us was not in the same position as the OMA, for example, or Dr Singer. There were many health care professionals who came in front of us talking about the need for that independent rights advice. They did say, many of those health care professionals -- not the nurses, but many of the physicians -- that it should be independent, that they shouldn't be responsible for that, that in fact it just needed to be done in a different way. But there were others who came before us saying they didn't find any problem in terms of rights advice under the old act and they weren't quite sure what their colleagues were talking about.
We have a bunch of letters that were given to us by the rights adviser in Windsor, for example, which she referred us to but which weren't read into the record. I'm going to read some of those into the record, because I think it's important for us to know that there was a countervailing opinion on the part of health care professionals working under the Advocacy Act who found it helpful, who found it very, very significant in their relationship with their patients, not negative.
The first one I'd like to read is from Mary Lou Dolan, who's a registered nurse, and who is a registered nurse who's in charge of a psychiatric unit at a general hospital. Remember, only in Ontario psychiatric hospitals are the patient advocates available. So this was a situation where under the Mental Health Act people were required to have rights advice but there wasn't anybody there from the PPAO. This is what she says:
"Dear Committee Members:
"Since the proclamation of the Consent to Treatment Act last year, we have been very pleased with how efficiently this service for our patients has been running. There is no delay between when we notify the Ontario Advocacy Commission and when patients are seen by the rights adviser. The rights advisers have been very helpful and compassionate with our patients and take as much time as is needed to make sure the patient is properly informed of their rights.
"Our present government is now wanting to dismantle this service. As a health care professional working with psychiatric patients, I find this unacceptable. Many of our patients are unaware of their rights provided by the Mental Health Act. The rights advisers provide this service, and I am sure this service is provided at a much lower fee than when legal aid did this service." Of course, because of the compulsory nature under the Mental Health Act, legal aid is provided for under that act.
"Large amounts of tax dollars were used to educate and inform the legal and health communities of the Consent to Treatment Act. This system seems to be running smoothly now and the act is doing what it was proclaimed to do. If it's not broke, why fix it?"
From Ron Frisch, who is a PhD and a clinical psychologist and a consulting psychologist, again in Windsor:
"As a health care provider and teacher in the mental health field, I'm most distressed at the proposed changes to the Consent to Treatment Act, the Substitute Decisions Act and the Advocacy Act.
"Incomplete consultation has taken place in regard to the effects of the changes proposed under Bill 19. The drastic changes contemplated by Bill 19 will affect the most vulnerable members of our society. This represents a step backwards from the many years of efforts made to ensure the rights of those people with reduced ability in representing their needs for care and decision-making.
"I urge you to do your utmost in delaying the imposition of these regressive acts. There may be creative and innovative ways of budget reductions that do not destroy the health and wellbeing of our citizens."
From someone who's a unit manager in a psychiatric hospital, Windsor regional hospital, Harish Carpenter:
"The service provided by the Advocacy Commission rights adviser is not only beneficial but essential to our community in regard to the education and supportive information given to the patients and health team worker. We have noticed since the implementation of the Advocacy Commission rights adviser that response time concerning hospital visits have become prompt and we, the health team workers, receive more feedback concerning said patients. The patients appreciate the thoroughness of the rights adviser in the explanations concerning their rights. The patients can then effectively make a decision concerning his or her treatment," and it goes on and on.
There are many, many more, and we may have an opportunity to hear some of them as time goes on, because this issue of basic rights advice and the key concern that it has in terms of making these acts work is important. I understand that we need to have the subcommittee report from the meeting that the subcommittee had at noon before we close at 5 today, so I will stop talking at this point, but I have a good deal more to say on this particular amendment and I don't think the discussion of this amendment is complete, Mr Chair.
The Chair: Do you wish to continue your presentation in regard to this section tomorrow?
Mrs Boyd: I do.
The Chair: The subcommittee met and all three caucuses agreed to use their best efforts to complete this bill by Thursday, and I mean this all in good faith, Mrs Boyd, but you indicated earlier on the record that for some reason, if this section may pass, and that may not be possible?
Mrs Boyd: I didn't say that, Mr Chair. I said I wasn't finished speaking to this amendment, and there are other amendments that have been brought forward in this section. I didn't say that at all. I'm not convinced that we have had a thorough discussion of the implications of this amendment and so I'm not prepared to pass it at this point. I think we need to have more discussion.
The Chair: Just in that regard, legislative counsel has assisted me, and she is of the opinion that the two other amendments proposed by the Liberals and the NDP are in order and are complementary to the government amendment, if it so passes.
Mrs Caplan: What does that mean?
The Chair: It simply means that they're open for debate in the order they're listed.
The subcommittee met and agreed that the continuation of the clause-by-clause on Wednesday and Thursday of this week would be for the hours of 10 am to 12 noon and 1 pm to 5 pm, and in addition that a presenter earlier before the committee be reimbursed for their travelling expenses, as the subcommittee approved same. I would ask for approval of the subcommittee report.
Mr Marchese: I move that, Mr Chairman.
The Chair: Thank you.
Mr Tilson: The report also includes, Mr Chair, that these hearings would be concluded on Thursday, as was agreed to by the three House leaders. I think that should be in the report, because that was certainly part of what our agreement was.
The Chair: It's certainly on Hansard at this moment.
Mrs Boyd: The expectation that that would happen is certainly there.
The Chair: Do I have approval of the subcommittee's report? All those in favour? Agreed.
We are now adjourned to 10 am tomorrow in this room, 151.
The committee adjourned at 1659.