CONTENTS
Thursday 29 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:
Brown, Michael A. (Algoma-Manitoulin L) for Mr Chiarelli
Caplan, Elinor (Oriole L) for Mr Conway
Grandmaître, Bernard (Ottawa East / -Est L) for Mr Ramsay
Johns, Helen (Huron PC) for Mr Hudak
Marchese, Rosario (Fort York ND) for Mr Hampton
Also taking part / Autres participants et participantes:
Halyna Perun, legal counsel, Ministry of Health
Trudy Spinks, manager, implementation support and counsel, implementation support unit, Ministry of the Attorney General
Clerk / Greffière: Donna Bryce
Staff / Personnel:
Joanne Gottheil, legislative counsel
Doug Beecroft, legislative counsel
The committee met at 1003 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): Good morning, members of the committee and ladies and gentlemen. This is a continuation of the hearings of the standing committee on administration of justice on 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. Fortunately, the calendar has arranged it that we have one extra day this year and one extra day to complete, hopefully, our deliberations. We can proceed. I believe Mrs Caplan wishes to make a statement for the purposes of the record.
Mrs Elinor Caplan (Oriole): I would like to request that the Ministry of Community and Social Services table for the purpose of this committee the report on unregulated residential homes. It was requested by the committee at the same time as we requested the Lightman report. We've received the Lightman report, but I've been informed that the deputy minister has said they will not release the -- I think it was Ernst and Young, although I'm not sure. Do you remember, Marion, the name of the consulting company?
Mrs Marion Boyd (London Centre): Sorry, I don't, but I don't think it was Ernst and Young. It was the other one, Peat Marwick.
Mrs Caplan: I had the note here from research, who said that our request had gone to the deputy minister and that the report that had been done was not being released by the deputy minister. I think the minister has the authority to give us that report. It's one that was commissioned by the previous government.
It would be very helpful for us to have that on this last day, and I'm hoping that through the good offices of the parliamentary assistant we could have it before noon. It is available under freedom of information. It's in the office, and I'd appreciate it if you'd just phone over and see if we could have that report today by noon.
The Chair: We do not have a representative of that particular ministry, but does anybody --
Mrs Caplan: Mr Tilson has carriage of the legislation.
Mr David Tilson (Dufferin-Peel): Mr Chairman, I'd be prepared to speak to it. Quite frankly, if the deputy minister doesn't want to release it and has some reason for that, obviously, as a member of the government, I'm not going to jump in and say, sure, I'll get it for you in five minutes.
Mrs Caplan: No. I'm asking if you'd make the request and find out what the problem is.
Mr Tilson: On the other hand, I don't mind making inquiries or having our staff make inquiries. There may be some logical reason at this particular moment in time why it's not available. But what I will undertake to do is to at least look at it.
Mrs Caplan: I appreciate that. That would be helpful. If you could let us know by noon what they say about it. I just point out to you that it is available under the freedom of information legislation. We shouldn't have to go to this extent to get it.
Mr Tilson: That may be, Mrs Caplan. We'll look at it.
Mrs Caplan: It would be facilitative if you could just tell them that we'd appreciate having it before the end of the deliberations of this committee.
The Chair: Mr Tilson, thank you for your assistance.
We are now proceeding to section 79.1, and Mrs Boyd has a proposed amendment which I believe is contained on page 185 of the motions.
Mrs Boyd: Actually, I need to ask a question of counsel. May I do that before I move this motion? This motion was in response to one of the briefs we heard where concern was expressed as to whether a minor child who was under another act -- and I think the real concern was the Child and Family Services Act -- would be able to apply to the Consent and Capacity Board despite any of the provisions of such other acts. I don't want to make a motion to that effect if that already is the case, so I wondered if counsel could advise us.
Ms Halyna Perun: Yes, I will be able to. Under the Health Care Consent Act, other than for incapable people who have guardians or a Ulysses contract, which waives a right of review, any person of any age who has been found incapable of an issue under that act has a right of review. There's no reason why that person would not have a right of review under the Health Care Consent Act. There's nothing in the Child and Family Services Act that precludes a child from applying to the board.
There is a case currently before the Ontario Court of Appeal, and one of the issues on appeal is that the chair of the board, in an application for a review of a finding of incapacity of a child who was 13, decided that he didn't want to hear the issues because the child had gone through the proceedings under the Child and Family Services Act and the issue of capacity was reviewed by a provincial court judge.
Those two decisions, from the provincial court judge and from the board, are now before the Court of Appeal. The government is a party in that appeal, and we hope to get some further guidelines around the juxtaposition of the two acts. But there's nothing in either of these acts that would preclude the child from actually making an application.
Mrs Boyd: My understanding was that in that case it was a sequencing problem, that in fact the referral had been made to the court, the matter had been sent to the court before any application was made, and it was that that caused the chair to make that decision.
Ms Perun: That's right. In his opinion, it would have been an abuse of process to have the issue of capacity reviewed once again in the venue before the board.
Mrs Boyd: So a judge will rule on that and that will give us some clarity, even with these circumstances if an application were made first before proceedings.
I guess the real issue is that if a children's aid society is making application for wardship, which I understand it was in this case, they proceed along their line and it's very difficult often to ensure that all the rights of the child in the case are considered. But they're entitled to counsel, and if counsel isn't available, they're entitled to counsel through the children's lawyer. So really all it requires is a bit of a notice to the children's lawyer that they need to be watching for this kind of a situation.
Ms Perun: That's right.
Mrs Boyd: Thank you. Then I'm not going to make that. I'm going to withdraw this.
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The Chair: Thank you, Mrs Boyd. If we can proceed then to a new section, a proposed 79.2, which is located on page 186 of the proposed motions.
Mrs Boyd: I move that part VI of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following section:
"Offence: treatment without consent
"79.2 A health practitioner who contravenes section 9 or 16 is guilty of an offence and is liable, on conviction, to a fine not exceeding $10,000."
There is an offence portion in the Substitute Decisions Act that applies to substitute decision-makers, and it strikes me that, since the government has saved health practitioners from liability so civil action is not possible against a person if they have acted according to the act, they're not liable. But we believe very strongly that in addition to that -- and of course they would have to be found not to be acting in accordance with the act in order for their liability to come into force.
What we're saying is, it is an offence against all of us. It is an offence against the bill itself and all the citizens covered by the bill if a health care practitioner does not get proper consent, just as it is an offence against all of us and the offence section is there in the Substitute Decisions Act if a substitute decision-maker does not follow the law. It seems to me it is quite appropriate for substitute decision-makers and for health care practitioners to be subject to exactly the same kind of fine if they are not in compliance with the law.
Mrs Helen Johns (Huron): The government is opposed to this motion for a number of reasons. If the health practitioner does not obtain consent, the recourse that the person has is that they can go to the Criminal Code and the provisions may well apply there. If a person obtains improper consent, then the recourse is that there is negligence. So we believe there are proper provisions, if you will, for health practitioners who treat without consent and we therefore are opposed to this.
Mrs Boyd: I'd like to read from the Hansard of this committee on February 12, 1996. The deputant who was before us was a Mrs Jocelyn Huculak. Let me quote from her testimony:
"The last section I'd like to address is one that I've entitled `Offence Provisions for Health Practitioners.' When I've talked with friends of mine who are health practitioners, this usually gets them excited.
"Much of what we see in the existing legislation and also in the proposed legislation seems to be addressed to the substitute decision-maker. We tell the substitute decision-maker that if you don't make decisions in keeping with the wishes that may have been set out or if you don't make decisions that are in keeping with the statutorily prescribed principles, there are going to be penalties for you. We don't just leave the penalties as they may exist at the common law or the civil law, but it's been taken one step further with this legislation and the penalties have actually been included in the legislation. For example, if a substitute decision-maker makes a decision regarding treatment that goes against the wishes that are known to that person, that person may subject themselves to a fairly stiff monetary fine in the event they are convicted of that breach.
"While we've gone a long way I think to strengthen or to give weight to the fact that wishes and instructions must be followed by substitute decision-makers, I'm not sure we've done the same with respect to health practitioners. An example of that would be wishes or a living will or an advanced health care directive that an individual may have made.
"We've made it very clear to the substitute decision-maker, `Follow what's set out or there is a penalty prescribed by the legislation that will be applicable.' We haven't said the same, though, to the health practitioner. Certainly, if a health practitioner was to go against known wishes, it doesn't mean there aren't civil remedies that would be available, but I think we would strengthen or perhaps bring home the importance of the individual's wishes to health practitioners if similar offence provisions were provided in this legislation directed at them.
"Naturally, as I've said, there are civil remedies. An individual or their family may decide to pursue a civil remedy. They may decide to pursue a remedy that deals with the particular disciplinary board that regulates that profession. However, I'm not sure that's enough to help bring home the point to health practitioners that they are obligated to not substitute their own judgement but to follow the wishes of their patient, regardless of whether or not that person is capable.
"I would strongly suggest, along the lines of what has been imposed for substitute decision-makers, that similar offence provisions be included that would apply to health practitioners who breach their duties that are imposed by this legislation. Whether the offence provisions need to be as stiff as the monetary fines that are imposed, I'm not going to comment on, but I think there needs to be something more. If the point of this legislation is to make it easier for people to know that they can express their wishes and know they'll be followed, we need to impose the same requirements on both substitute decision-makers and health practitioners."
One of the real issues throughout this whole legislation process is the claim by the government that if people are unhappy, they have routes and they can make complaints. Of course, the real issue here is that we are dealing with vulnerable people who have been declared to be incapable, and the government knows very well that those people are unlikely to be able to pursue civil action, a civil tort. They are unlikely to have the money to pursue a civil tort and certainly, with what's happened to legal aid, it's virtually sure they wouldn't get legal aid to pursue a civil tort. There is no recourse for the vulnerable individual who believes that the health practitioner has breached this act.
That needs to be the responsibility of the state. It can only be the responsibility of the state if in fact there's an offence provision. The person can be charged, it can go before a court and the determination can be made as to whether the act was breached. There ought to be some sense on the government's part that it needs to offer this protection, given that it has taken away rights advice, taken away the ability of people to look after themselves under this act, taken away all the advocates who were set in place to make sure these acts did not mitigate against those who are most vulnerable.
Even in this case, where there's a clear breach, you want to force that vulnerable person to go through a lengthy and costly court procedure to get any kind of redress. I think that is very significant in terms of all the actions you've taken. It belies your words about how much you care and worry about the vulnerability of these people. If you are that concerned, and I have no reason to doubt your sincerity in that, this is a simple remedy for the fears they have expressed. I think it's extremely important that we listen to those fears and understand how important they are.
Health care professionals, if they're doing what they tell us they do, should have no reason to be concerned about this. You have touching faith in the colleges, you have touching faith in the professional ethics of these health professionals. Therefore, there ought to be no impediment to your putting an offence provision in because, if we are to believe you, you simply believe there will be no offences and therefore it's a moot point. It isn't, from the vulnerable people's point of view. From vulnerable people's point of view, this is the thing that says to them, "I can be sure that a health practitioner isn't going to say to me, as they have for centuries: `I know best. I'm the doctor, I have the training, I know best. I don't have to pay attention to your wishes or to those wishes as expressed by a substitute decision-maker.'"
I would urge the government to understand that this is an important issue and this is one of the few ways you could tangibly indicate that your words really mean something in terms of protecting the vulnerable.
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Mrs Caplan: I think this provision is premature, actually. The view I have is that the colleges have done a very good job in defining the requirement for informed consent. I believe the standards of practice and the discipline proceedings of the colleges are appropriate and adequate but should be monitored, and they are. If they prove inadequate, something like this should be done if there's a problem. I don't see that there is a problem today. In fact, the problem today is the chill that's in the environment. I think we have to send a signal that we want that environment to normalize, that we have confidence that people will act in good faith.
While I do have some discomfort with the extensive absence of liability in the face of the fact that there isn't in the statute an obligation to inform of rights, I'm hopeful that the government will agree with our amendment a little further on to actually be specific about that.
I do think it's premature to move to put an offence section in here, since the obligation with the colleges to discipline their members when they have treated without consent I think is something we should be watching and monitoring to see if it works before we include it at this time. I don't want to say I would be opposed to this if there were a problem, I just don't think there is a problem yet. While you could argue on this, "Well, prevent it, and this would add a chill," my concern is that we have too much of a chill in the environment now. You want people acting in good faith, you want to foster communication, and I just think it's premature at this time to add an offence provision to this legislation.
Mr Rosario Marchese (Fort York): I think the position of the Liberals and the Conservatives is quite clear. We disagree with both of them in this regard, and disagree very strongly. The issue is not whether the provision is premature or whether there is a problem yet. That's not the point. I think my colleague has made a different point: Is this important enough to us, and to some of the groups that have come in front of this committee, that we should put it in statute? AIDS Action Now said, "A health practitioner who contravenes sections 9 or 16 of the act is guilty of an offence and is liable, on conviction, to a fine."
There are groups out there who are very concerned about this. Are we concerned enough ourselves to say it should be in the statute so the health practitioner is reminded about how important a breach is? Is it preventive? Possibly. I'm not sure this in itself prevents a breach, but it states that it's important to us as policymakers, as a reminder to a health practitioner, that it's very important. Again, I'm not quite sure that it is in itself a deterrent, but it's important to put it into the act. I don't believe we need another inquest to prove the point. I hope that will never happen.
We've gotten rid of the Advocacy Act -- not "we." Sorry, whoever is listening -- the Tories have repealed this, the forces of no good have repealed this. They've repealed the Advocacy Commission, they have abolished rights advisers, all the very things that give individual vulnerable people protections. This is yet another section that in our view gives greater protection to vulnerable people in the event that there's a breach.
If there is a breach, there is a fine. We think that's good. If the "not exceeding $10,000" is an issue, we can take that out and you could determine through guidelines what that might be. If it's important to you, as it is to us, this is something that should be in the act. It doesn't contravene anything else that you've spoken about. It doesn't contravene, doesn't contradict, but in fact complements what is already in law. If it doesn't detract, why would you not support an issue that in our view is a reasonable thing to put into statute? For that reason, we believe it's important to add and believe it's important to support.
The Chair: If there are no other comments on my list, I shall put the amendment. Shall it pass?
Mr Marchese: A recorded vote.
The Chair: I think this one will be easy. Even I can do it, because the clerk isn't here.
Ayes
Boyd, Marchese.
Nays
Michael Brown, Caplan, Doyle, Grandmaître, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: The amendment fails.
We proceed to section 80, and the government has an amendment.
Mrs Johns: I move that subsection 80(3) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Same
"(3) No person who makes a decision concerning a personal assistance service on an incapable recipient's behalf shall make an assertion referred to in subsection 61(3), knowing that it is untrue."
It just changes "plan" to "service."
The Chair: Agreed? Thank you. That's carried.
Section 81. Shall that pass? There are no amendments. Carried.
Section 82. Mrs Caplan has a proposed amendment.
Mrs Caplan: I move that subsection 82(1) of schedule A to the bill be amended by inserting "subsection 9(3)" after "contravenes" in the first and second lines.
Mrs Johns: Mrs Caplan, I believe it's out of order.
Mrs Caplan: You're right. I withdraw.
The Chair: We are proceeding to proposed new section 82.1, Mrs Caplan.
Mrs Caplan: We have a replacement amendment which is being copied. If we could stand it down, I would be very happy.
The Chair: Is there unanimous agreement?
Mr Tilson: How long do you want to stand it down for?
Mrs Caplan: Five minutes, until it's photocopied.
Mr Tilson: Okay.
The Chair: Mrs Boyd, you have a new section 82.1.
Mrs Johns: Mrs Boyd, we have to do 114, I think, before we can do this, because this is consequential to 114, and we stood that down yesterday. Do you want to do 114 right now?
Mrs Boyd: We can if you wish.
The Chair: Why don't we stand it down? We've got a number of postponed sections. We have five. We could take the two of them at the end. Would that be satisfactory? Okay. We have unanimous agreement that the two proposed new sections 82.1 shall be proposed at the end of our deliberation of schedule A.
New section 82.2, Mrs Boyd.
Mrs Boyd: I move that part VI of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following section:
"Offence: reprisals for applications
"82.2 A person who takes a reprisal of any kind against another person because the other person made or assisted in making an application to the board is guilty of an offence and is liable, on conviction, to a fine not exceeding $10,000."
I would remind the committee that we heard a great many concerns expressed by vulnerable people, particularly those in institutions or those representing those in institutions, about the possibility of reprisals if they made application to the board. When you're a vulnerable and helpless person, perhaps confined to bed, perhaps confined to a wheelchair, perhaps neither but still dependent upon an institution or a caregiver, if it's in the home, for every single aspect of your life, the necessities of life, and you have no assurance that if you want to appeal against a decision that you're incapable, you in fact won't suffer as a result, it is very difficult.
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There's also the problem of staff in institutions who might wish to help a person make an application to the board over and above what has been decided by another health care professional or another person employed by the same employer. I would remind you that on February 12, again in Thunder Bay, we heard from a deputant who was representing the Family and Service Provider Advisory Committee, Mrs Eve Gillingham, who said:
"You must also recognize that there is the potential for conflict of interest between what the family and vulnerable person, or the service provider and vulnerable person, consider to be the vulnerable person's best interests. In addition, as service providers we sometimes find that our organizational or professional goals are in conflict with our ability to successfully advocate on behalf of vulnerable people. From my own experience, I know of health care professionals who have had their jobs threatened as a result of trying to advocate on behalf of a patient. Therefore, we believe it would be best to avoid any situation that may pose a conflict of interest."
There was remarkable silence from the health professionals, other than this particular person, who herself is a health care provider, about this issue. Yet we know, because of some of the findings in many of the reports that have come forward, that those who work in this field very often feel they cannot stand up for vulnerable people because it might affect their employment situation or it might affect their relationship. Vulnerable people feel at the mercy of their caregivers, very often, and it is very important for them to understand that there is no possibility that there would be reprisals against them for daring to suggest that a decision by a health care provider was not appropriate. I sincerely hope the government understands the importance of trying to give that assurance to both health care providers and to vulnerable people that reprisals are not to be tolerated under this legislation.
Mrs Johns: The government is opposed to this motion, and it's not because we're opposed to the reprisal issue. I've taken this through a number of the ministry departments that would be working through this process, and they say the amendment is unworkable, that it's too vague. I've asked for clearer wording to be able to deal with this and have been unable to come up with any, so I don't intend to stand this down. The problem is that we have to deal with the issue of, what is a reprisal? We feel it would be a very difficult issue to ascertain, so we're going to be opposed to it.
Mr Michael A. Brown (Algoma-Manitoulin): We will be supporting the amendment. We believe that while it may be unclear in some respects, it is an important principle and the legislation does not really include it in any way. Just to be brief for the sake of time, I'm going to say we are supporting it because it's an important principle. If the government can't find a way to find an alternative -- I really can't believe that. You should be able to find a replacement for this if you defeat it.
Mr Marchese: This is an important addition we're adding. This is important to protect individuals who feel, for a number of good reasons that many have told us in committee, that where they decide to help there are reprisals, or many people don't want to because they're frightened of reprisals. We understand that. We don't have to have a university degree to understand how reprisals work. We've probably been in workplaces where many people are silenced because of their fear of what an employer or somebody above them in a position of authority might do if they say certain things that would work against them. We understand that.
When you say the amendment is too vague, I don't understand what that means. "A person who takes a reprisal of any kind against another person because the other person made or assisted in making an application to the board is guilty of an offence." What's vague about that? What is vague about what is a reprisal? A reprisal can take many forms, sure, but a reprisal of any kind, in any form, is an offence up to a given amount of money, whatever that is.
Does a reprisal have to be clear to you? Do you need to understand what a reprisal it is? "You're going to be fired for saying that." "You're likely to be fired if you say this, but not that." What kind of reprisal language are you looking for? What kind of action are you looking for to make "reprisal" clear? For me, "reprisal" is very clear and takes in a whole range of possible actions against an individual. But is that why you wouldn't want to see it in there, because there's a range of reprisals possible? I just don't understand.
If you accept the principle we are stating here, if you believe it's vague, work it out. Find an appropriate word for "reprisal" or something that gives that individual protection in the event they take an action to protect that vulnerable person. Do something. Simply dismissing it because you say it's unworkable or too vague is again a mistake and it's wrong. Don't you want a person who is assisting a vulnerable person to have protection of some kind? If you say yes to it, find the language if you think this doesn't do it. But to dismiss it is wrong. They're wrong, Mr Chair.
Mrs Boyd: It amazes me. I guess you didn't consult with the Ministry of Labour. Labour has many pieces of legislation which prevent reprisals. Your own labour bill at least maintained a prohibition against reprisals in some form, and the labour standards act, the Occupational Health and Safety Act -- they all have clauses that guard employees against the possibility of reprisals if they whistleblow on things that are important or if they attempt to unionize and are not able to. You can find the wording. What we're saying here is if somebody tries to get back at a volunteer -- that's another issue: volunteers. You want volunteers to go in. I can tell you that anybody who's done any work in this field will tell you that volunteers are very often the ones who are most helpful. And what happens to them if they help in these situations? They get told by the organization they needn't come back in, and that happens all the time. I really urge you to very clearly talk about it.
The Employment Standards Act spells out what kind of reprisals. It talks about reducing work hours. It talks about reduction of wages, because this is such a common thing when somebody tries to say an employer is not doing something. I think you would find that many of the ways in which we have found out about the problems vulnerable people have had at the hands of caregivers and family members have come because volunteers have been helping those people or have come because employees of certain health facilities have indeed said: "This is wrong. This person is not being dealt with properly." It just amazes me that you're unable to find the language. Stand it down, find the language, and at least give some assurance to people who are at the mercy of their caregivers that you will not tolerate reprisals against them for questioning those same caregivers.
The Chair: I have no one else on my list. I'd call for the question. Shall the amendment pass?
Mr Marchese: We're not going to stand it down? Anybody?
Mrs Boyd: Recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître, Marchese.
NAYS
Doyle, Guzzo, Johns, Ron Johnson, Parker, Tilson.
The Chair: The amendment fails.
Mr Tilson has pointed out that I did not ask for section 80, as amended, and 82, as it stood, to carry. Shall they carry? Carried.
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Mrs Caplan: We can do 82.1 now.
The Chair: Is that the wish of the committee? Right now we're doing it at the end of schedule A because we have a number of them.
Mrs Caplan: That's fine. Whenever you're ready.
The Chair: New section 82.3, Mrs Boyd.
Mrs Boyd: I just withdraw this. What's the point? The government has refused to require any kind of training of anybody around this act -- no training, no education; it's not important. I withdraw.
The Chair: Thank you, Mrs Boyd. We shall now proceed to section 83 of schedule A, and Mrs Caplan has an amendment to clause 83(1)(b).
Mrs Caplan: I move that clause 83(1)(b) in schedule A to the bill be struck out and the following substituted:
"(b) for the purpose of the definition of `evaluator' in subsection 2(1), prescribing categories of persons as evaluators, prescribing the credentials required of a social worker to be an evaluator and prescribing the circumstances in which evaluators may act as evaluators;"
Mrs Johns: Mr Chair, I believe this is out of order.
The Chair: I think this is consequential to a former amendment of yours, Mrs Caplan, that failed.
Mrs Caplan: Well, my hope is that the government would consider this. What this does is allow them, by regulation, to be specific and to include in the statute somewhere the words "social worker" and still give them the flexibility in regulation to be able to set that out as in the previous one. I don't think it is out of order, but if you insist, I will withdraw the amendment.
The Chair: I believe it's out of order, and the only way it can be considered is by unanimous consent. Is there that consent?
Mrs Caplan: Forget it. I'm not going to ask for that.
The Chair: Thank you. Mrs Boyd, clause 83(1)(b). What page is that on?
Mrs Boyd: It's 194. It needs to be withdrawn.
The Chair: Clause 83(1)(d), Mrs Johns.
Mrs Johns: I move that subsection 83(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following clause:
"(d.1) prescribing places, programs, providers and circumstances for the purpose of the definition of `recipient' in subsection 2(1);"
This is consequential as a result of the word "recipient."
The Chair: Any discussion? Carried.
Clause 83(1)(e).
Mrs Johns: I move that subsection 83(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following clause:
"(e.1) prescribing excluded acts for the purpose of clause 2.1(1)(b);"
This is consequential to the earlier motion 2.1.
The Chair: Does everybody agree that this shall carry? Carried.
Clause 83(1)(f), Mrs Johns.
Mrs Johns: I'm on page 197.
I move that clause 83(1)(f) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "plan" in the last line and substituting "service."
The Chair: Carried.
Clause 83(1)(f), Mrs Boyd, on page 198.
Mrs Boyd: I believe this needs to be withdrawn. It would have been consequential on education for health care practitioners.
The Chair: That is withdrawn. We have Mrs Johns, clause 83(1)(g.1).
Mrs Johns: It's on page 198a. It was a motion that was given this morning.
I move that subsection 83(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following clause:
"(g.1) regulating the amounts that a person who is entitled to copy medical or other health records under subsection 74(2) may be charged for copies of the records;"
This motion is in respect to Mrs Caplan's statement yesterday that we wanted to be able to charge appropriate levels for people who were only taking small sections of a report versus larger fees if people asked for the whole report and did it consistently. This is the ability for us to set up regulations that would allow us to do that.
Mrs Caplan: I support that and I prefer that to what the government originally stated. I hope that in their regulations they will make sure that individuals do not have to pay for a reasonable request, and I think everyone could apply a test of reasonableness. People shouldn't be charged for a few pages of their reports.
The Chair: Quite right, Mrs Caplan. Shall this amendment pass? Carried.
Mrs Caplan: What page are we on?
The Chair: Clause 83(1)(h), Mrs Johns.
Mrs Johns: I'm on page 199. I move that clause 83(1)(h) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "the member of the staff of a care facility who is responsible for a personal assistance plan" in the fifth, sixth and seventh lines and substituting "the member of a service provider's staff who is responsible for a personal assistance service."
This is consequential.
The Chair: Carried.
Clause 83(1)(i), Mrs Johns.
Mrs Johns: Page 200. I move that clause 83(1)(i) 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."
The Chair: Carried.
Clause 83(1)(i.1), Mrs Caplan.
Mrs Johns: I believe this is out of order, Mr Chair.
Mrs Caplan: I'm going to withdraw.
The Chair: Thank you, Mrs Caplan. We're going over --
Mrs Caplan: Page 202, I hope the government will support it. Are you going to call that one now, or on the next one?
The Chair: We still have part of 83.
Mrs Caplan: Subsection 83(3).
The Chair: Subsection 83(3), page 202. Mrs Caplan.
Mrs Caplan: I move that section 83 of schedule A to the bill be amended by adding the following subsection:
"When regulations come into force
"(3) A regulation comes into force on the day that is the later of the day that is four weeks after the day it is published in the Ontario Gazette and the day it would come into force absent this subsection."
The intent of this, although it's technical, is that it would require gazetting -- that is, publishing -- of a regulation. It would allow four weeks of scrutiny before it comes into force. Because regulations are made behind closed doors and the government does not have to do any kind of consultation or discussion prior to the implementation of a regulation, this is a safeguard, and it's in the government's interest to do this. What this says is publish it, let people know what you're planning. It gives them four weeks to come to you and say, "You haven't thought about this aspect." You make a change or not, but at least you had a chance to notify people. It not only gives them an opportunity for notice prior to it coming into effect, but it also gives them an opportunity for notice to plan for what the impact of it is likely going to be.
We think that it's reasonable. It doesn't cost the government anything. It gives a little bit of time for those people who are going to be impacted by regulations to be able to go and say, "Whoops, you made a mistake, we think you didn't consider this." We've seen many amendments to this legislation that I think, as I mentioned before, could have been avoided if they had shared the actual wording of the legislation prior to the tabling. Similarly, I think many problems could be resolved if you give some time -- and we think four weeks is reasonable -- for gazetting of a reg. I hope the government will support this.
Mrs Johns: The government is opposed to this motion. Mrs Caplan moved this motion throughout all of Bill 26 and we opposed it at that time. What we believe is that regulations may need to be provided for --
Mr Michael Brown: Good thing to bring up.
Mrs Johns: -- less or more time. It depends on the reasons why the regulation needs to be out, who it affects, how quickly we have to enact something. I believe that this is a policy that needs to be decided on a government-wide basis and that we shouldn't be doing it in specific sections. I will certainly bring this up with the government in a caucus meeting in the future to talk about this, but we are rejecting this today.
Mrs Boyd: Just another example of the unwillingness of this government to make sure that those who are required to carry out the provisions under an act don't have any information about how they're to do that ahead of time so that they can do it effectively. At each step the government has refused to admit or allow that there needs to be education of those who are going to be acting under this act. They've refused to require that education, and now they're refusing even to give the period of time required for people to become familiar with the regulations. It is just absolutely typical of a government that has no interest in making sure that the legislation it has put forward is understood by people and can be acted upon properly. It's disgusting.
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Mrs Caplan: The first thing I want to say is that there is a precedent and in fact the precedent was in Bill 26 and you did accept an amendment to gazette when it came to Natural Resources.
Mrs Johns: Not from Health.
Mrs Caplan: No. If you will check Hansard, what you said is that this should be government-wide policy and that Bill 26 was your precedent and that's why you weren't accepting it. The reality is you did accept it so you do have a precedent. The precedent is Bill 26. To use that as your precedent for why you're not going to do this is not a valid, legitimate reason.
I could argue the fact that you do have one precedent under Natural Resources is a good reason to do it, but that's picayune and that's why I think your defense of not doing it is ridiculous, frankly, because it is good public policy, it is good lawmaking, it is good government to have the kind of openness and transparency that encourages people to know what you're doing, to understand what you're doing, to have a chance to let you know what they think about what you're doing, that fosters education, it fosters understanding, it fosters goodwill and it fosters a sense of good government in a civil and civic society.
Frankly, I just don't understand why it's okay to do it for fishes and not for people, you know? In Bill 26, you're going to be gazetting your regs under the Ministry of Natural Resources that deal with wildlife and fish and all of that. This is far more important, and because the Ministry of Health said no, it wasn't going to do it for other things under Bill 26 -- you know, Mr Tilson, I don't want to be provoked by getting into a debate on Bill 26, but if that is your model for lawmaking and if that is the precedent that you're naming -- I am frustrated because of your lack of any kind of understanding of what you've heard before this committee. You didn't consult before. People were not given the opportunity to review what you were doing. If you had, they could have helped you draft better law.
You have not been responsive to many of the concerns, some of them minor ones, like changing "service" to "plan." We got 40- or 50-odd amendments that do that. That could have been avoided. You said: "We were responsive. We listened. Look how we changed it." I'm telling you, that is minor compared with many of the concerns that people have expressed about this legislation.
In the fact that it's minor and that you did respond, that is good, but I'm telling you that if you'd let them look at the legislation in advance, it would have saved you all of those amendments that have been technical in nature to respond to that and that of all the concerns that were raised before this committee, you have not responded to those that are major and serious. To say that you're opposing a reasonable amendment to just let people know, give them four weeks before a reg comes into authority and into law -- because a regulation has the full weight of the law. To say no to a reasonable request to just let people know, give them a little bit of time I think is a style of government that is going to be the downfall of this government.
I just want to go on the record of saying that that principle and the fact that you will sit here today and say, "This is a government-wide policy; we don't let people know about anything. We are not going to tell you what we're going to do; we're just going to do it. We're not going to consult with you in advance; we're not going to give you a chance to even understand it or know or question," that will be the downfall of your government, because it is the height of arrogance and it is the height of a lack of understanding of democratic principle of the public's right to know and to understand.
It is fundamental in our democracy for people to feel that the government is open and that the government is accountable and that what it does is transparent. I have to tell you, of all the amendments that we put forward, this was the one that I was sure you were going to accept, because of the fact that it is so reasonable. It costs you nothing to do it. It costs the government nothing to commit to letting people know, giving them four weeks before they implement something that can have a dramatic effect. Why do I say "dramatic effect"? Because the reg-making powers in this bill are enormous; the reg-making powers in Bill 26 were unprecedented. To do all of that behind closed doors, without any accountability, without any formal consultation required, without anybody being advised, without giving them a chance to tell you that what you're doing isn't going to work or it's silly or, "Here's a better way," without giving them that kind of opportunity -- and it is opportunity to participate; that's what this is about.
If you think I'm upset, I am. If you think that I think you're unreasonable, I do. If you think that I think this leads to bad governance, it does. While there's much in this bill that I can support, what I find very difficult is to understand why you would object to sharing information, giving people a little bit of time to adjust to the changes that you're going to make under this bill and under other bills. If that is the government-wide policy, then I say to you -- and I know that you didn't make the decision; this is your minister's decision; this is Premier Harris's decision -- I can tell you, it's a bad decision.
Mr Marchese: Just a few things, Mr Chair. I support this motion. I think it's a good motion. It would be good if governments had policies around that so that we don't have to hash this out in opposition, as you did before and as we're doing now, Mr Tilson.
So it's sad that we have to do this in opposition all the time, because there's something to be learned from this. It would be good government policy to allow for this so that you allow for scrutiny of regulations. I know governments are always afraid about that kind of scrutiny -- oh, yes, but you are, otherwise why would you oppose it? If that's not why you're opposed to it, then I don't quite understand, because if you were passing regulations, wouldn't you want to give people the time, those who have come here before you, an opportunity to talk to you about them, to give you feedback again in terms of how it might work? Wouldn't that be useful? It's good government policy, generally speaking, to do it. It applies to every government.
I don't mean to say that we've all been guiltless in this regard, as we speak. We've done this on employment equity as a former government. It was a tough bill; it was a difficult one. So we did apply this kind of rule to employment equity. So it's not as if you don't have precedent to do this; you do have precedents. But it is on the whole good policy for every government to apply this to whatever it is they pass, because you're protecting yourself and you're making good government. It is a good democratic principle to uphold.
I understand the difficulties that some of you face in government. I just hope that one day we'll be able to look at these things a little more reasonably in terms of how we're able to allow the public and government to achieve good policy in the end, that is beneficial to governments, to those who govern, and those who are governed.
This is not a tough thing for you to do; not tough at all. If you needed to stand this down to think about it, you could, but obviously not.
Mr Chair, they're wrong again and we're ready for the vote.
The Chair: Thank you, Mr Marchese, for assisting me there. Shall this amendment pass?
Mr Marchese: A recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître, Marchese.
Nays
Doyle, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: The amendment fails.
Mr Michael Brown: Mr Chair, I move that section 83 of schedule A to the bill be amended by adding the following subsection:
"Approval of commissioner
"(4) The Lieutenant Governor in Council shall not make a regulation under this section that may affect the privacy of medical records unless the provision has been approved by the Information and Privacy Commissioner appointed under the Freedom of Information and Protection of Privacy Act."
I think the explanation is almost self-apparent from the motion. What we are saying here is that the privacy of medical records needs to take place and that, clearly, the person in this province we have charged with that responsibility is the commissioner appointed under the Freedom of Information and Protection of Privacy Act and that Ontarians, particularly those vulnerable Ontarians who will be affected by this act, should have the ultimate in protection of their health care records. I think in these cases it's maybe even more important than it is generally in the public. I know as a member of the Legislature that my constituents would tell me there is nothing they fear more than the disclosure of private health information in terms of their own personal privacy.
I think it's a very reasonable amendment that does not inhibit the operation of this act in any way and provides Ontarians with the assurance that privacy of health records will be looked after.
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Mrs Boyd: In fact, it was my understanding that there was a commitment made to this by the minister in terms of the concern that had been expressed by the committee. So I sincerely hope --
Mr Marchese: Well, they're working it out.
Mrs Boyd: Oh, you're not going to put it in? You are going to put it in? You're in favour of this motion?
Mrs Johns: No.
Mrs Boyd: Oh, well, of course not, because all we have to do is, again, we're going to take the word that this is going to happen, and again there's no protection for people around a very sensitive issue. This is a government that has trampled, frankly, on the notion of privacy in Bill 26 and again, possibly, here. The privacy commissioner has expressed concern, and we don't believe that regulations -- there are many, many places where regulations are going to be made concerning the disclosure of information, and it is not appropriate.
Mr Marchese: They didn't express concerns around this, they say, but around that, substitute decision-making.
Mrs Boyd: Oh, good, we have an explanation. The Attorney General is concerned about privacy; the Minister of Health isn't. The Attorney General expressed concern, but not the Minister of Health. Well, that explains it all.
Mrs Johns: As we all know, when the privacy commissioner came in, we asked the privacy commissioner if he had any concerns with the health portion of the bill. The only section he had concerns with were in the SDA, which we're putting forward some amendments on.
In effect, what has happened over the course of our time in government is that we, as the Ministry of Health, have made an agreement with the privacy commissioner that we will work towards providing a global look at health care and how we can best protect the rights of the individuals. We have made a commitment to them. I've been to two or three meetings with the privacy commissioner, and we are looking at focus groups and potential legislation in the future about the privacy of people. That is something that he has been trying to do for a number of years, and this government and the Minister of Health have made a commitment that it will happen. So we are working to be able to do this.
The privacy commissioner has said he has no concerns with the changes in the HCCA. We do not believe that this is necessary and we will be opposing it.
Mr Michael Brown: That explanation is absolutely beyond comprehension. If the government is concerned with this issue, it hurts absolutely nothing to have it in here. The only reason for opposing this could be that you really don't want this provision in here. It doesn't hamper government whatever to do this, but it does, or as much as anybody can, it ensures the privacy of the health records of Ontarians.
I think the credibility of this government is already largely in question on questions of privacy, and I don't see how this -- I'm not trying to be confrontational here. I just don't see how this could in any way hamper the efforts of the Ministry of Health, or could hamper anything, and would have the benefit of ensuring the protection that all Ontarians believe they should have. Just, I guess, bewilderment over here is the sense.
Mr Tilson: You people are always bewildered.
Mr Michael Brown: Thank you for that, Mr Tilson.
Mr Bernard Grandmaître (Ottawa East): I simply have a question. Mrs Johns just said that her government had made a commitment to safeguard medical records. Why can't you do it through this motion, then, if you have a commitment to do it?
Mrs Johns: I've stated the reasons why we're not going to do it under this amendment. What we're going to do is --
Mr Grandmaître: Well, tell us about your commitment, then. What is your commitment?
Mrs Johns: The commitment is that we're going to look at the confidentiality of all health records for all Ontarians. We have to go out and consult, as you have suggested.
Mr Grandmaître: You will pick and choose.
The Chair: Mr Tilson, did you wish to speak?
Mr Tilson: Who?
The Chair: He was on my list. I had no choice.
Mr Tilson: I've never heard such an amendment as this in my life, because essentially what you're saying is that the privacy commissioner has the right of veto over government legislation. That's absolutely nuts. The law, as passed, the privacy law, the information and protection of privacy act, doesn't give the commissioner this mandate. Why in the heck would you? It's as simple as that.
There's no question that any government, whether it be Liberal, New Democratic or Conservative, has an obligation to consult with the privacy commissioner on sensitive issues of confidentiality of, particularly, health records, and we certainly have and we are continuing to do that. But if you think that we're going to give the veto to an unaccountable official --
Mr Grandmaître: Oh, oh, oh.
Mrs Boyd: Unaccountable.
Mr Tilson: Well, that's exactly what you're saying. The only people that are accountable in this situation are those that are elected by the public of this state. You're simply saying, "Well, they must put their stamp of approval on it."
Now, there's no question we respect and intend to continue to consult with the privacy commissioner, but I think it would be most inappropriate to say that these types of laws must be approved. There's no question as well that the privacy commissioner comes to committees such as this, and he or she, Mr Wright or whoever the privacy commissioner is, will continue to give their opinions to committees such as this and to the sitting government at the time as to whether or not proposed laws violate the Freedom of Information and Protection of Privacy Act. Any government that's worth its salt, particularly our government, will continue to consult with that commissioner.
But I think it's most inappropriate to have the word "approve" legislation. I can only say that you say that you're bewildered about not accepting it. I'm bewildered as to why you would even put it forward in the first place.
Mrs Boyd: Well, it's very easy to understand why they would put it forward. They would put it forward because there are many people in this province who, given the behaviour of this government around the confidentiality of health records, have real concerns that in fact they can rely on this government to be concerned.
I'm very interested. I'm just wondering what state Mr Tilson is talking about. Have we become the 51st state already? You said, "of this state." This isn't a state; it's a province. At least in our language we might remember that once in a while.
The Chair: Thank you, Mrs Boyd, for that correction.
Mr Tilson: Don't challenge my patriotism, Mrs Boyd. Don't be so condescending.
Mr Michael Brown: I don't want to belabour the fact, but the privacy commissioner is subject to review. The courts can review what the privacy commissioner says, and frankly, Ontarians trust those courts more than they trust not just your government, but any government. This isn't an affront to a Conservative government or an NDP government or a Liberal government. This is just a way of raising the privacy issue to one higher level, rather than leaving it in the hands of a Parliament which sometimes makes decisions that are rather spectacular.
We go back to Bill 26, and if you'll remember, we had a Minister of Health come out and say, "There's no problem with privacy here," only to find out a day later that we have a letter from the privacy commissioner saying there are big problems. Mr Wilson was in backstroke trying to get away from that and to change his mind.
We're just saying this is a sensible amendment. You're not giving the privacy commissioner total authority, but you are saying, "Look, it'll be subject to courts if he makes the wrong call, but let's just protect Ontarians to the fullest extent possible." That seems totally reasonable to us.
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Mr Tilson: Response to that.
The Chair: Well, no, I'm sorry. Mr Marchese is next. I'll put you on the list if you wish, Mr Tilson.
Mr Marchese: I just wanted to disagree with the argument that Mr Tilson puts forward. He says that to approve this particular amendment as it relates to the regulation, not the legislation, would be to in effect give the privacy commissioner a veto, and that that would be an affront to Parliament.
What this is saying is that when we're talking about issues that may affect the privacy of medical records, it's important to the opposition and it's important to the public and the consumers that such things be protected and that they be reviewed by the privacy commissioner, and it's important enough that if he or she felt that there was a breach of any kind, it's important that he or she had that power to say to the government, "There's a problem here," and that it not be passed until that person agreed with whatever amendments they're proposing.
It's not an entirely unreasonable thing to expect that the commissioner should have such a power, to be able to say to governments, "There is a breach here, or possible breach." So this does not contradict anything that the government is doing. They may have consulted. He may have said there's not a problem. But this gives further protection, and it's not, in our view, that much of a big deal.
The Chair: Mr Tilson.
Mr Tilson: Just a comment to Mr Brown. The information and protection of privacy act only applies to the government of Ontario and its various institutions. It doesn't apply, I don't believe, to the private sector that might be involved in health activities.
Mrs Boyd: All the more reason.
Mr Tilson: Well, it doesn't. It doesn't have that mandate, and aren't you essentially -- I'm not going to repeat my argument to you, but I will add that one, that this section would really contradict what the information and protection of privacy act is all about. The information and protection of privacy act deals with information that is about individuals that is under the jurisdiction of the government of Ontario or its institutions, and your amendment goes much further than that.
Mr Garry J. Guzzo (Ottawa-Rideau): I want to make two brief points. The first one has been touched on, and I'll leave it alone, by Mr Tilson.
The second one is this: that if you're sincere -- and I suspect you are -- with regard to this, you would address not just this piece of legislation but numerous other pieces of legislation dealing with similar aspects and under the information and protection of privacy act you'd provide the commissioner with the same powers with regard to those pieces of legislation.
If ever it should have been addressed, I would have thought it would have been in the last Parliament, when this particular issue was probably touched upon with one unfortunate situation regarding issues surrounding this and a rather untasteful situation regarding a situation with regard to privacy breaches of that act. If it was ever to be debated and looked at -- I mean, really, to do what you want to do -- and there's an argument to be made for it, Mr Brown. I don't know that I would agree with it, but I think it may be something that should be looked at. But it has to be done with regard to an amendment to the information and protection of privacy act and affect all legislation, not just this particular act.
The Chair: Thank you, Mr Guzzo. Hopefully, Mrs Boyd will conclude this debate.
Mrs Boyd: Well, I can't let that stand on the record without responding to Mr Guzzo. The particular instance he's referring to is the inadvertent release of a name in reference to a medical record by the Minister of Health of the time. She resigned. It was considered very serious that that happened. And when you say there should have been a review of the act, the act was fine. It was breached. The person resigned. So I really take very great exception to trying to say it should have been reviewed as a result of that incident. It had nothing to do with the act.
I agree with you that we should be looking at the Freedom of Information and Protection of Privacy Act as we go along, as we get more experienced. This is relatively new legislation in terms of the length of time it's been operating and the problems that come forward from time to time. I would agree with Mr Guzzo that it should be. I sincerely hope that his opinion will carry sway in his government. As this government has certainly behaved in a way that has caused real concern among the population about your respect for privacy, your claims that there's no problem with privacy -- and clearly there is -- should lead you to review that act with a goal to showing the public that your fine words about wanting to protect the privacy of individuals really carry you through to revising that act and making sure that it happens.
I would agree that probably, as we move more and more into the information age, it's going to be more and more important that any government that happens to be in power is committed to ensuring that not only particularly the health records but frankly the personal records of every citizen are protected, and that it not only be committed but it be seen to be committed by what it does. This would have been an opportunity for this government to show that it was prepared to put its words into action.
Mr Michael Brown: I appreciate the comments of the parliamentary assistant, Mr Tilson, and Mr Guzzo. I share with them the view that the Freedom of Information and Protection of Privacy Act needs to be looked at. Especially in the health area, there needs to be a total review of the way that system presently works. I think that's because our society is changing rapidly in terms of information technology and government accountability. We hear all kinds of interesting ideas about how physicians will be accountable, how other professions will be accountable. It takes a lot of cross-referencing of information, which means it's got to be somewhere. So yes, that's got to be addressed, but that doesn't mean we can't address this particular issue which deals, as I remind you, with the regulations, not with the act itself.
So we're very concerned that a government -- you've already refused the idea that we can gazette them and the public would look at them for four weeks before they're actually in effect. Now you're saying you don't even want the approval of the Information and Privacy Commissioner. I find that really quite odd. We can do something here. We should do something here. Yes, the broader issues need to be addressed, but in the meantime we can do something of significance here. So why not?
Mr Guzzo: Just to clarify, I want to accept the point that Mrs Boyd makes. I suggested that there were two instances, and one was unfortunate. I accept that the minister did resign after a period of time, did the honourable thing and did the appropriate thing, and that's the one I referred to as being unfortunate. The other one had something to do with a member from the north and had something to do with a lie detector test that I think this committee came to deal with, and that's the distinction, but I do accept your clarification with regard to that aspect of it and that minister. Thank you.
The Chair: Mrs Caplan, you've missed most of the debate.
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Mrs Caplan: I actually had a call in my office. As you know, there's a TV screen in the office, so I was able to do two things at once and was able to watch the debate. I know what was said and I hurried down here after the fact, because I felt very strongly about what was being said and I wanted to be sure that I was able to point out that the government has made a commitment to consult. They have made no commitment to do what they are told is the right thing to do, and that's why this effectively is a sign-off. I think that when you gave the commitment at committee that you were going to consult with the privacy commissioner, people thought that meant that he would have to approve what you were doing. All this does is put in statute the commitment that people think you made.
I don't understand why you would have any concern about this since you want to, we understand, make sure that confidentiality of medical records is protected, that the advice of the privacy commissioner is listened to and taken. That's all this does. Just as we have argued before on other cases, if you believe in this, you'll support it; if you don't believe in it, you'll vote against it. What does it mean to believe in it? What it means is that you think that confidentiality of medical records is important, and particularly because we have seen legislation come forward where the privacy commissioner had very serious concerns, where opposition members, myself included, stood up in the House and said, "Whoa, you've made a mistake," and your ministers gave false assurances that everything was okay and this was all covered by the freedom of information legislation.
What this would say is, "You don't have to worry about false assurances on regulation, you don't have to worry that any regulation can be drafted that's going to have a negative impact on the protection of privacy, because this amendment says that the government has to consult with and listen to the advice of the privacy commissioner." It's that simple. It means that he has to say that any regulation you draft solves the problem. What's the problem with that? If you say you're going to do it, do it. If you're telling us, as I heard Mr Tilson say, that you've said you're going to consult with him -- well, I ran downstairs here because "consult" doesn't mean "listen to," and that's exactly why this amendment is needed.
The privacy commissioner has authority over legislation, but no authority over regulation. In this legislation much can be done by regulation that could have a very serious negative impact on confidential medical information. The protection of individual medical records is something that we believe is important enough to warrant legislative protection, and since the government says that it agrees with us that medical records should be protected, and since the minister -- in fact, he issued a press release that said, "It doesn't matter what my bureaucrats think. I'm going to listen to the privacy commissioner. I'm going to do what the privacy commissioner tells me"; he did that around Bill 26 -- has made a public commitment that he's going to listen to the privacy commissioner, what possible objection could he have to putting that commitment into the statute?
If you vote against this, people will not trust you. You've said you're not going to let them know; you're not going to gazette; you're not going to give them a chance to see what you're doing; you're not going to give them a chance to say, "We think this may have an impact; give us an assurance it's all right or let us make a suggestion that might be helpful to you." They're not going to have that chance. You're not even going to let the privacy commissioner sign off to say this is okay. I don't understand why you're worried about this amendment.
The Chair: Shall the amendment pass?
Mr Marchese: A recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître, Marchese.
Nays
Doyle, Guzzo, Johns, Klees, Leadston, Parker, Ron Johnson, Tilson.
The Chair: Shall section 83, as amended, pass? Is there any objection? Carried.
We are now going back to the postponed sections, section 5, which is on page 96a of the motions book. I'll let everybody get their place and remind themselves of the issues involved on that motion. Page 96a was a motion of Mrs Caplan's and has not yet been moved; we reserved that. Would you like to move that, Mrs Caplan?
Mrs Caplan: 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."
We stood this down in the hope that the government would find this acceptable. I'd like to hear from them.
The Chair: What is the position of the government, Mrs Johns?
Mrs Johns: The government's opposed to the motion. There are many issues around giving and refusing consent to procedures whose primary purpose is research. The government requires time to consider the full implication of Professor Weisstub's report pertaining to research ethics. He has a report that has just come into the ministry now, 500 pages, which we are translating and we are getting ready to put out into the community for consultation. We feel that full consultation has to happen with respect to this report because there are a number of issues that have to be addressed before we can put research in.
I just want to give you a couple of them that they mentioned to me so that you will know that we've considered this and we will be considering it further. Can a power of attorney give an attorney the authority to decide to place the grantor in a research study? Legal arguments go both ways with respect to this. That's an issue that we have to do some public consultation on. How are decisions about research to be made by the SDM? The HCCA's best interests criteria do not apply.
The third one is that Professor Weisstub's report states that where an individual is incapable and the research proposal would pose a substantial risk, a provincial ethics review board should review the proposal irrespective of the prior capable wishes. We have to consider that also. This concept is not in the HCCA and that is therefore a problem for us. Professor Weisstub's report stipulates that the SDM should have discretion to withdraw the incapable individual from this research, despite prior capable wishes, if the experiment has more than a negligible risk. So we have to consider that because this concept isn't in the HCCA also.
A person's assent is required even if they are incapable, according to the report. If there is an objection, Professor Weisstub stipulates that research should not continue. Again, these concepts, explicitly revolving around research, have not been included in the HCCA.
I agree with the concept. I think we have to do a lot of consultation before we can move forward on this. I think that we'll be having the report out in the next few weeks and I'll make sure that everyone on the committee gets one.
Mrs Caplan: I want to go on the record: The purpose of this amendment is that while we recognize that there are many implications, an individual should be able to specify clearly in a power of attorney what their wishes are. I think the issue of the ability of the substitute decision-maker to withdraw someone from a research study should be a power that is under the ability of the power of attorney document. But the fact that today these issues are just beginning to be debated and discussed, the principle -- and that's what this is -- that says that a substitute decision-maker should be able to make those decisions, conscious of the prior wishes and the directions of a person who writes a power of attorney, is a reasonable principle. This amendment would not in any way dictate the results of your consultation. In other words, it would facilitate what you're going to be doing.
What you're saying is that you're going to consult on all of the issues, and I agree that there are issues. But right now there is no authority in law for someone to give direction in a power of attorney for the purposes of research. I think you should be able to do that. It's unclear as to whether or not you can do it. This would make it clear. I'm taking my advice from the lawyers in the room. The issue is that the law is unclear. The law is unclear today whether or not a substitute decision-maker can consent on behalf of an incapable person. All this would do -- and I think it's reasonable to have the clarity that says where you have it written in the power of attorney. I'm not saying where you are aware of prior wishes; this says it must be written in the power of attorney for you to be able to consent.
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I think that's a protection to a vulnerable person, I think that is an opportunity for someone to think about that and have an advance directive in the power of attorney, and I don't believe this interferes in any way with the important work Weisstub has done or the broad consultation you're undertaking. While I understand the issues you raise and the points you raise, and I agree that has to happen, all this does is clarify something which is unclear in law today, to say that you have to be specific whether or not you want to give your substitute decision-maker that power in the future. I think that's a reasonable provision in the legislation because it is unclear. You might want to ask advice from the lawyers before you make a final decision on that.
Mr Tilson: I was just going to do that. I was going to ask Ms Spinks to come forward.
Mrs Caplan: Thank you.
Mr Tilson: This debate on this issue also applies to the substitute decisions part of the bill.
Mrs Caplan: Yes.
Mr Tilson: I think there are some amendments as well that one of you has made on that very topic and it seems to me we might as well get this issue dealt with now, if Miss Spinks could come forward.
Ms Trudy Spinks: I take Mrs Caplan's point, and she's correct. The law isn't, as I see it, clear whether or not a person who makes a power of attorney can give that kind of advance instruction, and whether or not, if it is in the document, the designated attorney can act on it when it's a matter of consenting or refusing participation in research.
However, the whole area is extremely complicated. Those who are experts in the field of medical research feel it needs to be carefully considered what needs to be attached to any section like the one you're proposing before it is enacted, because if it went in alone it may have some repercussions we might not want.
Therefore it's preferable, and I think those experts in medical research, and they've spoken to us on numerous occasions about the issue of research and the SDA -- I believe when the SDA was considered initially, the subject was debated at some length and it was felt that the safest course was to introduce the section we have now in section 66 of the Substitute Decisions Act, which says nothing in this act affects the law concerning research, in order that the kind of work Prof Weisstub has undertaken, which canvasses and considers and analyses all of the very serious implications and issues around this, can be dealt with before there is a change. So I agree it's unclear. I'm not sure it would be an appropriate response to clarify it with one line in a bill without looking at all the issues.
Mrs Boyd: We can't help being sympathetic to the argument that we need to be really looking at all the implications. In the meantime, there were many people who came before us, particularly from the AIDS community, who were urging us to allow their community the possibility of making this decision. I think you're only going to see this in cases where someone has a disease that they understand eventually may make them incapable, and where they are clearly saying, "I have a commitment to research around this disease and I want to be able to continue to participate because I understand that as the disease progresses, it's very important for there to be people available who are able to participate in this when they get to that stage."
With AIDS, it's a particularly difficult issue because the probability is very high that people will get to the stage where they will be incapable and will not be able to give that consent. Those who can, do, and do all the time. Similarly, I think there are other diseases that are like that: ALS is another, muscular dystrophy is another, multiple sclerosis is another, where people may become incapable, may be engaged in research projects, and there needs to be some clarity whether they can continue, whether that treatment can continue or that research can continue when they become incapable.
This is going to be a major disappointment to a lot of groups that have a very deep commitment to trying to resolve life-threatening issues that face them right now. Waiting for more discussion is going to make it difficult for them and I think the government needs to be aware that this will happen, that there will be very deep disappointment on those people's behalf.
Mrs Caplan: I'm going to make one last point. Not only are we talking about diseases like AIDS, Alzheimer's, ALS and MS, any of those degenerative diseases, but we're also talking about an issue which is much broader than those diseases, and I recognize that. I see this as a temporary, at-the-moment provision, recognizing that there are going to be changes coming. I think you're quite right when you say you're not going to deal with the whole issue by one line that permits this is the meantime, but the reality of the way government works, and the priorities of what gets on a government's agenda and the time line for this would suggest that your consultations that you're undertaking and the work that is going on could take quite some time.
I see this as a temporary provision to deal with an issue that has been raised by those people who know they have a degenerative disease who want to be able to clearly state their desire to participate in research. The law is unclear about that, we've heard that, and this is something that could be a temporary measure. I'd like you to consider it along those lines. I don't think it would interfere in any way with the consultations that would be ongoing on the broader issues we all realize are there.
Mr Marchese: I just want to state for the record that I'm very sympathetic to the argument the government and the legal adviser are making with respect to this, because it can have repercussions, obviously, in a whole variety of different fields. That I appreciate. But I guess we're leaning, in support of this amendment, towards the most immediate kinds of problems that people are suffering. Where they indicate this is what they want, we're quite willing to say that, in the meantime and in spite of some of the implications, it's best to provide assistance to those people who obviously might benefit from it, even though it might have some other, broader implications down the line. But I did want to say I understand the argument you're making.
The Chair: Shall the amendment pass?
Mrs Boyd: Recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître, Marchese.
Nays
Doyle, Guzzo, Johns, Ron Johnson, Klees, Leadston, Parker, Tilson.
The Chair: Shall section 5 pass? Carried.
We are now moving to section 12. Mrs Boyd is going to have to assist us, because I believe we have to withdraw the first motion, which should be on page 100. You should have two 100s, and then move the second one.
Mrs Boyd: Yes, Mr Chair. I withdraw the original amendment and would like to move its replacement.
The Chair: I have three in all. Perhaps you could assist me.
Clerk of the Committee (Donna Bryce): There are two 100s and one 100a.
The Chair: Oh, that's 100a, so it's the second one.
Mrs Boyd: I'm just trying to figure out what the note from leg counsel means.
Interjection.
Mrs Boyd: Oh, okay. I'm sorry, I'm missing -- there are two, aren't there?
The Chair: Yes.
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Mrs Boyd: Okay. There is a replacement motion for the original 100 and I'd like to read that into the record.
Mr Tilson: That is not withdrawn.
Mrs Boyd: No, it is not withdrawn. It was the original, not the replacement motion. The replacement motion has been discussed with leg counsel and with the parliamentary assistant and the counsel for the Ministry of Health.
"I move that section 12 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Plan of treatment
"12. If a plan of treatment is to be proposed for a person, one health practitioner may, on behalf of all the health practitioners involved in the plan of treatment,
"(a) propose the plan of treatment;
"(b) determine the person's capacity with respect to the treatments referred to in the plan of treatment; and
"(c) obtain a consent or refusal of consent in accordance with this act,
"(i) from the person, concerning the treatments with respect to which the person is found to be capable, and
"(ii) from the person's substitute decision-maker, concerning the treatments with respect to which the person is found to be incapable."
The Chair: The government position?
Mrs Johns: We're going to approve it. We agree with it.
The Chair: As it stands?
Mrs Johns: As she just read it.
Mr Michael Brown: The shock in your voice.
The Chair: No, It wasn't shock. Part of it was handwritten, that's the only thing I was referring to, because I wanted to make sure that we had the exact thing on the record. Is there any opposition to the passing of this motion? If not, all those in favour of the amendment? Thank you.
We then have a third-party motion, which again is handwritten, being 100a. Is that correct, Mrs Boyd?
Mrs Boyd: That's correct.
I move that section 12 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, and as just amended by the standing committee on administration of justice, be amended by adding the following subsection:
"Right to speak to practitioner
"(2) A person for whom a plan of treatment is proposed has a right to speak to any health practitioner who administers a treatment that is part of the plan of treatment."
This is important and I'll give the example that's most familiar to all of us, I think. When we go to a hospital and we give our consent to surgery, we know there will be many practitioners who are involved in that particular treatment. We very seldom meet all of those people. We very seldom have a chance to talk to them.
The one person whom we are most likely to meet is the anaesthetist, and when we talk about a team of treatment, there are different health practitioners who do different things. It would be important for the person to have a right not only to speak to the one person chosen by the team to present the plan and get consent to the plan, but to the individual who's actually going to do the treatment.
It is important to talk to an anaesthetist. The surgeon's expertise has nothing to do with the anaesthetist's expertise, and similarly, in a plan of treatment, for example, a nurse might present the plan on the part of the team, but the nurse might not be able to answer questions about physiotherapy, might not be able to answer questions about one of the other health practitioners who's part of that team, whose speciality is not the nurse's specialty.
All this says is, yes, the plan can be proposed by one person. One person can be responsible for getting the consent. But that in no way takes away the right of the individual patient to speak to any of the health practitioners on the team about the particular treatment that health practitioner's going to offer.
One would certainly say that good medical practice would dictate that would be the case. However, if we listen to the people who came in front of us, they told us frequently of having things done to them without their ability to ask questions, and this is even more important when we are giving permission for a whole plan of treatment to cover a number of different fields. It is important that, yes, we allow that to happen because we encourage teamwork between professionals, but that should not in any way detract from the ability of a patient to talk to anybody who's going to actually deliver that treatment to them.
We need to protect people since we've given this overall decision-making power. Other professionals cannot necessarily answer the questions a person would have. Even as treatment goes on, there might be an issue around a side-effect of a treatment. There might be an issue around a stiff muscle that could not be answered by the one person chosen by the team to present the plan. It is important to ensure that this doesn't give a signal to health professionals that if they act in a team, then one person gets assigned and the patient has no right to ask questions of anybody else on the team.
Mrs Johns: The government is going to oppose this motion, and the reason we're going to oppose this motion is not that we disagree with anything Mrs Boyd said, but the Health Care Consent Act in no way stops an individual from talking to any of his health practitioners. In effect, if a person is giving consent, they have to understand the treatment as outlined in section 3 and they have to be able to know the foreseeable consequences of that treatment.
They can talk to any practitioner they need to to be able to understand the treatment and its decisions. The Health Care Consent Act, although it suggests that one practitioner can give all the information, does not suggest an individual cannot talk to all of the health practitioners if they so desire.
Mrs Boyd: Then there shouldn't be any problem with passing it since that's the way it is.
Mrs Johns: But it doesn't add anything to the act.
Mrs Boyd: It adds to the confidence people have that indeed this is what this means, and that's what you are facing, the confidence of the vulnerable population in what this actually means for them. I can assure you it will save you a lot of difficulty in terms of apprehension on the part of vulnerable people. Since you say this is the way it is, you simply say that's the way it is in the act.
Mrs Caplan: Rather than having this in the statute, I really think this should be in the procedures in the hospitals. If it's not the practice in the hospitals, then you can request that or do that through regulation under the Public Hospitals Act, if they're not doing it.
My thought is they are. I just don't think it's necessary to put this in the statute. I think people have that right and all hospitals would have that as part of their regular practice. If people don't know they have the right, that's something else, and that's an issue of education. But I don't think putting it in the statute would help with that.
Mrs Boyd: Mrs Caplan continues to be caught in a time warp where she thinks health services are all developed in public hospitals, and they aren't. We're talking about home care, about retirement and rest homes, about nursing homes, about long-term-care facilities of all sorts. The reality is that in those settings there isn't necessarily the kind of protection of procedures of the hospital.
We would like to think that there are, and there are some protections that we insisted be built into the Long-Term Care Act. I don't think this is one of them. If you say this is going to happen, what's wrong with putting it in the statute to assure people they do have the right?
Mrs Caplan: The example Mrs Boyd used was the example of the anaesthetist in surgery in a hospital, which is why I used the hospital environment. But you not only have the Public Hospitals Act, you have the long-term-care legislation, you have the Nursing Homes Act, so that you could, if there was a problem, do it through that legislation. I just don't think it's a problem, is the point I'm making.
There are other remedies, given the regulatory authority under the other acts, but my own view is that it would be in every organization's interest that is doing treatment plans to ensure that people know they have the right to speak to whoever they want to about their treatment. So we're not going to be supporting the amendment.
Mr Tilson: I just want to make sure I understand your amendment. Doesn't someone have the right to get a second opinion? If you don't get information, if I don't have the right to go and speak to somebody else, well, I'm going to withhold my consent.
Mr Marchese: It's not so simple, Mr Tilson.
Mr Tilson: I'm sorry, maybe I don't understand the amendment. That's why I've asked the question. It's as simple as that: If you don't get the information you want or you don't get the right to talk to somebody: "Fine. I'm not giving my consent."
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Mrs Boyd: What we are talking about here is vulnerable people who may or may not be capable, so for them we're talking about a series of substitute decision-makers. All we're saying is that if we're going to give permission for health care professionals who act as a team to assign one person to be the person who explains that and gets the consent for that, we have to make sure that doesn't mean that health professionals -- that means everybody else on the team -- don't have to be available to the patient to ask questions, available to the patient to consult with the patient.
I'll give you the example. I don't whether it's counsel or policy people from long-term care. One of the reasons they did not want rights advice to be given in one area was that it would mean somebody else had to come in and do something. All I'm saying is, we have to be very clear. We're not trying to make this complicated; we're just trying to ensure that the permission to have this team approach to a treatment plan doesn't mean that once that consent is given, the patient then doesn't have the opportunity to ask questions about the specific parts of the treatment plan and how that affects them or the substitute decision-maker.
Mr Tilson: But no one's going to stop these people from asking for the information in this amendment.
Mrs Boyd: I can tell you quite frankly, Mr Tilson -- you say no one will stop them -- my concern is that they will be informed, "You've already agreed to this."
The Chair: Thank you, Mrs Boyd. Shall the amendment pass?
Mr Marchese: Recorded vote, please.
Ayes
Boyd, Marchese.
NAYS
Michael Brown, Caplan, Doyle, Grandmaître, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: Shall section 12 of the schedule pass as unamended? Carried.
We are proceeding to section 16, which is on 108.
Mrs Johns: I think there was an amendment that was approved in section 12, so I think it's "as amended." We approved the NDP motion 100.
The Chair: Okay. Agreed.
Section 16, on 108, and this is Mrs Boyd's motion.
Mrs Johns: This has been moved already, I believe, and we have had some discussion about it. I went back to have a second look at it because there was an interpretation difference. The government will not be supporting this motion.
Mrs Boyd: I'm not surprised, am I?
Mrs Johns: I don't know if you are or not.
Mrs Boyd: The effect of the motion would have been to ensure that until the board gives a decision in the matter and the appeal period passes without an appeal being commenced, or all the other parties have informed the health practitioner that they do not intend to appeal, or an appeal of the board's decision is finally disposed of, the treatment couldn't commence.
The purpose of the bill was, first of all, to ensure that treatment didn't begin while the appeal period was still going on, but to expedite things if all the parties to the review, to the board, indicated they were not going to appeal. It would have speeded things up, and that appears not to have been a consideration in the decision of the ministry.
Mr Marchese: I am quite ready for the vote. We've had plenty of discussion.
The Chair: Yes. Shall the motion carry?
Mrs Boyd: Recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître, Marchese.
NAYS
Doyle, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: The motion is defeated.
Shall section 16, as amended, pass? Carried.
We're proceeding to section 19, which is on 114 of your proposed motions. I believe there are three pages now.
Mrs Johns: I believe the first motion has been read into the record, and the government is going to oppose this motion. We have worked at trying to change wording and we're going to be opposing the motion.
The Chair: You might help us. I think there were three in all, Mrs Boyd. Could you assist us with what is happening?
Mrs Boyd: There were three different versions, I believe, at one point. The version we finally came down to and that we thought we had the agreement of the government to -- in fact, it was amended for us a number of times on the part of government members -- Mr Parker I think was the last one who suggested amendments. We had every reason to believe that once the wording suited the members of this committee, this amendment would be passed. Apparently instructions have been given that it not be passed.
I will read it as the amended version.
The Chair: Excuse me, Mrs Boyd. I didn't want to interrupt, but we're withdrawing, I take it, the one marked 114.
Mrs Boyd: And replacing it. I was about to read that out, Mr Chair.
I move that section 19 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following subsection:
"Disclosure of wishes re withholding or withdrawing treatment
"(3) A person who gives or refuses consent on an incapable person's behalf to a plan of treatment that provides for the withholding or withdrawal of treatment shall disclose to the health practitioner any wishes of which the person is aware that were expressed by the incapable person with respect to the treatment and that are applicable to the circumstances."
The revisions in this were at the behest of the counsel and members of the government. I am very surprised that Mrs Johns is now indicating that the government will not accept the amendment.
The Chair: Shall the motion carry?
Mr Marchese: Recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître, Marchese.
Nays
Doyle, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: The motion is defeated.
Shall section 19 pass? Carried.
We are now moving to section 57, which is on page 157.
Mrs Johns: Mr Chairman, I believe I read the motion into the record before and there was a question that we were talking about with respect to impossible exceptions. It's in subsection 57(1) paragraph 2, "If the person does not know of a wish applicable," and in the fourth line it says "is impossible to comply with." You asked a question about this, Mrs Boyd, what would be impossible to comply with.
Mrs Boyd: Excuse me, I don't think this is 157.
Mrs Johns: It's 153, I'm sorry.
The Chair: I had the wrong one. Very sorry.
Mrs Johns: We have done some discussions about the impossible exception. I would like to put some of our thoughts into the record. The impossible exception is necessary in the wishes part of the substitute decision-making criteria. A wish may be impossible to honour for a number of reasons. One wish may conflict with another wish. For example, a person wants to stay close to their own home and also has other wishes that the facilities around that area will not meet, so he has conflicting wishes. That's one time where it would be impossible to comply with the wish. A service may cost more than a person can afford.
So the next question I asked was, what if the impossibility exception is applied improperly, if someone has the money and someone doesn't want to spent it, for example? I think that's an important thing that we have to talk about today. The answer we talked about was that a service provider might know that a person, when capable, always wanted to have her hair done once a week and the substitute decision-maker is refusing to agree to this, even though the incapable person has the resources.
The Health Care Consent Act actually provides a way of addressing this. The service provider can propose the service under the act, and if the substitute refuses and is not complying with the criteria of the act, the service provider can apply to the board for a compliance review. The board can therefore potentially require the substitute to decide differently. If the substitute did not follow the board's directions, then the substitute would be deemed unauthorized to make the decision under one of the sections we did that ties back to section 18, if you remember.
There are a couple of things that they want us to remember when we're talking about this section. A substitute can potentially be replaced. Another person can apply to the board to be a representative for ongoing decisions, so that's one thing. If a long-term care facility is unreasonably denying services, there's a formal avenue of complaint at the ministry for that to happen.
The Chair: Thank you, Mrs Johns. The time is up.
Interjection.
The Chair: Okay. Shall the proposed amendment carry? Carried.
I believe there's one other amendment in this section, but it's 12 o'clock.
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Mrs Boyd: Could we have all-party consent to finish the Health Care Consent Act so that the staff don't have to come back after lunch?
Mrs Johns: I believe the next amendment is out of order.
Mr Tilson: Mr Chair, just on that point, the only problem is that we also have to deal with the schedules, I think.
Mrs Boyd: Are you changing the order in which we're looking at this again?
Mr Tilson: No, I'm just responding to your comment. I'd love to be able to tell the health people the order.
The Chair: We have two more amendments after this, in any event, on 82.1, that we put down.
Mr Marchese: He's trying to finish his statement.
Mr Tilson: It's not just that, Mr Chairman. It's the amendments to the other pieces of legislation. Could someone help me here.
Mrs Johns: Charitable Institutions Act, the Nursing Homes Act, the Mental Health Act.
Mrs Boyd: They were going to come at the end of the afternoon anyway, unless you're changing that again.
Mr Tilson: Except that we need health for those pieces of legislation.
The Chair: It's going to be a little while. We'd like to finish it. Mr Tilson, you were to report to us regarding a report.
Mr Tilson: Yes, and we're still attempting to get it. I've spoken to Mrs Caplan and we're still attempting to get that information.
The Chair: Thank you, Mr Tilson.
Mrs Caplan: I just want to thank Mr Tilson for his efforts. I appreciate it. Just for the record, the clarification is that it is the Ernst and Young domiciliary hostel review that I have requested. All I want is the executive summary, not the whole report, and I appreciate his efforts.
Mr Tilson: Mr Chair, can we agree, as Mrs Boyd suggests, that we finish the two amendments?
Mrs Caplan: Let's go.
The Chair: Okay. We have it on 155, which I believe is out of order. You have to read it into the record, Mrs Boyd; it has to be read.
Mrs Boyd: It's withdrawn.
The Chair: It's withdrawn. Thank you. We can then pass section 57 as amended. All those in favour? Carried.
We are moving now to 82.1, which is contained on, I believe, 189 and 190 of your books.
Mrs Caplan: I'd move that schedule A to the bill be amended by adding the following section:
"Evaluator's obligation to inform
"82.1 (1) If an evaluator finds, in accordance with this act, that a person is incapable with respect to admission to a care facility or with respect to a personal assistance service, the evaluator shall inform the person of his or her rights with respect to the finding, including any rights to apply to the board for a review of the finding,
"(a) as required by the guidelines established by the evaluator's college, if he or she is a member of a college referred to in clause (a), (l), (m), (o), (p) or (q) of the definition of `health practitioner' in subsection 2(1); or
"(b) in accordance with regulations, otherwise.
"Duty of the colleges
"(2) For the purpose of subsection (1), each of the colleges referred to in clauses (a), (l), (m), (o), (p) or (q) of the definition of `health practitioner' in subsection 2(1) shall establish and publish guidelines governing the responsibilities of its members under subsection (1)."
This is the last opportunity in the legislation to put something in the statute, and this is very confined and defined. It deals only with two things: (1) the admission to a care facility, and (2) the provision of a personal service. What this says is that an evaluator, under this act, has an obligation to inform a person who is incapable that they have been found incapable for the intention of putting them into a long-term-care facility as well as for the purposes of deciding what personal services will be provided to them.
It says that it is the colleges that will decide how that is done unless you decide by regulation that someone else or some other group can be evaluators, in which case the government will establish the protocol for that communication so that you do not get into a kind of formal Mirandizing, but into the fostering of a conversation.
I hope that the government will accept this. I recognize that we dealt with it under the provision of treatment and that you decided not to do it for treatment. I respectfully suggest that it is extremely important for the purposes of admission to a facility and for the delivery of personal services. You're now dealing primarily with disabled persons and elderly persons. I think that it's respectful to them that that communication take place, that it be an obligation of the evaluators to do it.
We are not prescribing or suggesting that you prescribe. Where there is a college, the college should do it. Where there is no college, I think the government has a responsibility and the legislative duty by regulation to do that for all of the evaluators they have prescribed who are not members of colleges.
It's my last gasp, my hope that you will put an obligation in this legislation.
Mr Tilson: I doubt that's your last gasp.
Mrs Caplan: It is definitely my last gasp on this issue, Mr Tilson. I'm hoping you have been convinced that it is a reasonable request.
Mr Marchese: We've had a strong impact.
The Chair: As there are no further comments, shall the motion pass? Recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître, Marchese.
NAYS
Guzzo, Doyle, Johns, Leadston, Parker, Tilson.
The Chair: The motion is defeated. We shall now proceed to the third party's motion contained on page 190.
Mrs Boyd: Mr Chair, that's a consequent motion to the one that did not pass, and it is withdrawn.
The Chair: I now put the question. Shall schedule A, as amended, carry? Carried.
I thank you very much. After lunch, at 1 o'clock --
Mrs Johns: Is that part II in Bill 19 also?
The Chair: We're proceeding to section 2 of Bill 19 after lunch.
Mrs Johns: I just want to approve part II in Bill 19, which we've just dealt with, which is the Health Care Consent Act section.
Mrs Caplan: Part II. That's the next question.
The Chair: Yes.
Mrs Johns: Of Bill 19, not of the Health Care Consent Act. Page 2.
The Chair: That will be the next question. Carried? Done. Yes, Mr Tilson? You're cutting into my lunch hour now.
Mr Tilson: Indeed. The staff from the Ministry of Health have requested that we make it quite clear that immediately after the lunch recess we would be dealing with the substitute decisions part of the bill and that the related bills would come after that, so they don't have to be here, I suppose.
The Chair: That's the order of the bill, Mr Tilson.
The committee recessed from 1208 to 1305.
The Chair: I call the committee to order. I apologize, but I neglected to put before the committee schedule A, sections 84 to 93, inclusive, which had no amendments. Shall those sections pass? Carried.
We are now proceeding to section 3, the Substitute Decisions Act, and our first amendment is one by the opposition.
Mrs Caplan: I move that section 3 of the bill be amended by adding the following subsection:
"(1.1) The definition of `assessor' in subsection 1(1) of the Substitute Decisions Act, 1992, is amended by inserting `who have been trained and certified by the capacity assessment office and' after `persons' in the first and second lines."
The intention of this amendment is to ensure that all assessors are and will be forever and a day trained by the capacity assessment office. It's relatively new. It's not in statute. It is the practice today, and I think by putting it in the statute we will ensure that we will have those standards and consistency. One of the fears I have is that as you start looking for places to cut back, you might pick on something like this. It would be a tragedy if that happened, because I think it is important to have that consistency and those standards and that training and I support the work of the capacity assessment office and I don't know anywhere else in statute where it is protected. That's the purpose of the amendment, which I'm sure the government will support, because it's so reasonable and they're doing it anyway.
Mr Tilson: The current regulations were put in by the former New Democratic government. I think all three parties supported that proposal which uses the regulations to -- they didn't want to eliminate future possibilities for self-governance. The regulations still stand. Just to read some of them, regulation 29/95 under the Substitute Decisions Act of 1992:
"1. To be qualified as an assessor, a person must,
"(a) have successfully completed the training course for assessors given by the Attorney General;
"(b) have agreed to take part in ongoing training and evaluation with respect to assessments of capacity;...
"2. The training course referred to in clause 1(a) must include,
"(a) instruction in the Substitute Decisions Act, the Advocacy Act, 1992, the Consent to Treatment Act, 1992;" -- in other words, the three pieces of legislation the former government passed --
"(b) instruction in the code of ethics and standards of conduct for assessors;
"(c) instruction in the policies and procedures for the conduct of assessments of capacity;
"(d) instruction in the policies and procedures established for determining if a person needs decisions to be made on his or her behalf by a person authorized to do so;
"(e) practical training in real or simulated assessments of capacity;
"(f) an evaluation of the knowledge, skills and ability of the person doing...and at the conclusion of the training course."
There's no question that the current regulations establish the designation process. The government doesn't believe there's any reason, notwithstanding what Mrs Caplan says -- we may simply have a difference in philosophy, but we simply don't believe there's any reason to change that. You have made no submissions that point out the necessity for this, and we don't think it would be necessary at this particular time to entrench one particular form of supervision in the statute at this early stage of the development of the capacity assessment process.
The regulations are under review. We will address the training in the regulations if we intend to change them, but currently we believe the process, for the intent of your motion, is adequate.
Mrs Boyd: Mr Tilson has just told us that regulations are under review. We've had a lot of talk this morning about regulations being made behind closed doors and sprung on the population by the government in power. There is no way that people in this province have any kind of confidence that the government will not do what it has done in many other cases: simply do away with regulations because they were passed by the previous government. You have done that in many cases, and it would give some comfort to those who have expressed real concerns around the training issue to have this in legislation.
As you will see, we have a motion that does not limit that to the consent board, and I hope we will discuss why we did that later, because we think it gives more freedom. The real issue is making sure that people are trained and certified, making sure people can have some confidence that those doing these very sensitive tasks will have the requisite training and information that enables them to do it in a sensitive and appropriate way.
Mrs Caplan: Can I have the assurance of the parliamentary assistant that it is not the intention of the government to remove from the capacity assessment office the responsibility for training?
Mr Tilson: I can only say that the current regulations stand. We're continuing to try to improve the process, as the previous government did. Both the Liberal Party and the Conservative Party agreed with what the NDP did with this process. We think it's workable and we intend to continue with that. Quite frankly, in either of your submissions, I haven't heard anything to change our mind as to why we should stop the process started by the former government.
Mrs Caplan: The only concern I have is that so much can be done by regulation and those changes can be made, and something is working well. I'm pleased you support it and I hope it will continue. I would have some comfort if you'd just assure us that your support will be ongoing. If I had that assurance, I'd withdraw the amendment. If I don't have the assurance, at least we'll have a vote on the amendment, which will signify that we think the capacity office is working well and that is the appropriate place to train and certify.
Mr Tilson: I can't add anything more, Mr Chairman.
The Chair: Shall the amendment carry?
Mrs Boyd: Recorded vote, please.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître.
NAYS
Doyle, Guzzo, Johns, Leadston, Tilson.
The Chair: It's defeated. We shall proceed to the next motion, on page 4.
Mrs Boyd: I move that section 3 of the bill be amended by adding the following subsection:
"(1.1) The definition of `assessor' in subsection 1(1) of the act is amended by inserting `and who have successfully completed the prescribed courses of training' after `capacity' in the last line."
The purpose is similar to the purpose of the Liberal amendment: to ensure there is training available to these people, that we will not have people making these assessments without the prescribed training, and that there is a standard set up for that. We have not said by whom, because we appreciate that over time there may be other ways in which this training occurs, but we have said it is important in legislation to specify that no one will be doing these assessments unless they have completed the training prescribed by the regulations.
I think it's a very permissive action. I would hope the government would support it, since clearly their intention is to provide training. I can understand why they're not prepared to commit themselves to training by a particular body, which may over time change in its function, but the intention is that assessors be trained and have the confidence of the population, particularly the vulnerable population, that no one will be assessed under this act unless it is by a trained professional assessor.
Mr Tilson: My comments are similar to the last comments I made. Mrs Boyd is supporting some of the positions we're taking, and I would thank her for that. We aren't changing the regulation authority which addresses training, clause 90(d) of the Substitute Decisions Act. We will say that we are committing to training being addressed in future regulations, and we're making no further commitments. We have started the consultation process and we will consult further on this issue, and there are no additional commitments with respect to that.
Mrs Boyd: Mr Chair, the government has refused in every instance to agree that evaluators need to be trained, that that's a special task; has refused all the educational and training amendments that have been brought forward to reassure all those who came in front of this committee who said they did not necessarily trust that this job would be carried out in the way it should be carried out unless people had specific training, both in the law as it stands and also in the way it is carried out.
I find it incredible that yet again we find the government saying: "Oh, trust us, trust us. We do have regulating power. We have the regulations under review, but trust us that we will provide this kind of training under those regulations, once we've reviewed them."
I don't think it is reasonable for this government to expect that from the vulnerable population out there, who have seen rights advice removed, who have seen all the requirements around being informed about their right to appeal removed, all the protective things they suggested to this committee taken out of this act, and who of course no longer have official advocates to argue on their behalf when they believe they have been treated badly under this act. It's very unconvincing to me and I suspect it's very unconvincing to the people who are most likely to be affected, those who may be declared incapable by an assessor.
Mrs Caplan: I would like to let people who are watching know what this is about. An assessor has the ability to decide that someone is not capable, not just for the purpose of a treatment, as under the Health Care Consent Act where an evaluator can do that for one treatment. This is to remove all rights and to impose a guardianship agreement for that person. That is very significant. All this request says is, "Let's make sure that those people who will have enormous power over people's lives in this province are properly trained." Mr Tilson and the government say: "Trust us. We'll do it all by regulation." Frankly, I don't trust you. I don't think the people trust to have everything done by regs when you've refused to allow any scrutiny of those regs, when over and over again very reasonable amendments have been placed that wouldn't cost a nickel, that would have put in place in statute some of those things that would have given some comfort.
We're going to be supporting this amendment simply because we think legislative protection is a reasonable request on something as important as the training and qualifications for those people who are given authority to place a person's life in the hands of someone else under guardianship. That's what this is about.
Mr Tilson: I'm sorry you don't trust me, Mrs Caplan.
Mrs Caplan: Not you personally -- the government, any government.
Mr Tilson: To Mrs Boyd, I think Mr Hampton was the Attorney General when the bill was passed and I think you were the Attorney General when the regulations were put forward, so you have extensive knowledge about that. I will add that our act goes further. It adds the authority to prescribe standards, which wasn't there before. We even go further than you did.
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You and Mrs Caplan both take great delight in talking about consultation. There doesn't seem to be anywhere in the research summary on presenters that Mr Marchese loves to flaunt around that we see this amendment being proposed. My question to you and to Mrs Caplan is, what are you responding to, particularly when philosophically both of you agreed to it in the last government? Are you changing your mind?
The Chair: I don't think it's a proper question, but Mrs Caplan, it's up to you.
Mrs Caplan: Yes, it is. I'm happy to respond to that. We heard over and over again from people who came forward the request for proper training. We heard over and over again --
Mr Tilson: No, no. We're talking about putting it into the statute as opposed to leaving it in the regulations. No one said that. In fact, some said the contrary.
Mrs Caplan: The people who came forward requesting an assurance that people would be properly trained, and I listened to them, I believe would have more comfort if the obligation was in the statute as opposed to the reg. That's the basis of my support. It's just a question of whether you are satisfied to leave it in regs. My preference at this time would be to have it in the statutes. It's that simple.
Mrs Boyd: Mr Tilson, of course, again tells us this wasn't presented by anybody. I'll give you one example, the Toronto Mayor's Committee on Aging, that said, "We also recommend that people who assess capacity be trained in university and by their hospitals and professional colleges for this role and that appropriate standards be established for these assessments."
Mr Tilson: We agree. We're doing that.
Mrs Boyd: You're doing it by regulation. You rightly point out that when I was Attorney General, we supported the regulation that made this necessary. I personally believe and believed then that it should have been in the legislation so it was clearly there that this is a function that requires specific training. We put it in the regulation because the legislation was already passed. It was passed in 1992. We put it in the regulations to make sure, because between 1992 and the time the act came into effect on April 3, 1995, we heard from many people, "You haven't provided for the training of these people who have power over individuals that is second to none."
The thing you have to understand about this act is that the power of guardianship is an enormously important power, whether it's guardian of the person or guardian of property or both. It is extremely important for you to understand the apprehension, particularly of those who at one time or another in their lives may have been deemed to be incapable, to say, "The person who does this needs to have training, and we cannot trust that successive governments" -- we're not just talking about your government. I can't imagine that these acts are going to be touched again in very short order. If it isn't in the act, there can't be any assurance that it's going to happen.
I've done it in a permissive way that enables your government or any successive government to change that according to the changes in functioning that might occur. I haven't tied you down to offering it by one place. You might come to a point where you want to have a college of assessors. You might do that, and I have left that available to you.
But the reality is, people need the assurance that these are going to be trained people, that this isn't going to be somebody who is able to exercise the power of life and death over them and their property without having some training. If that's your intention, why not put it in the act? What is your problem? Here we are again with another very simple change that would give a lot of comfort to a lot of vulnerable people. The government says, "We're going to do that anyway, but we won't put it in the act so we're required to."
The Chair: If there are no other comments, I'll put the question.
Mrs Boyd: Recorded vote, Mr Chair.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître.
NAYS
Doyle, Guzzo, Johns, Leadston, Parker, Tilson.
The Chair: The motion is defeated. The next motion is on page 5.
Mrs Boyd: I move that section 3 of the bill be amended by adding the following subsections:
"(4.1) The definition of `spouse' in subsection 1(1) of the act is amended by inserting `subject to subsection (1.1)' after `means' in the first line.
"(4.2) Section 1 of the act is amended by adding the following subsection:
"Spouses
"(1.1) Two persons are not spouses for the purpose of this act if they are living separate and apart within the meaning of the Divorce Act (Canada)."
The reasoning for this: We will find that this amendment has been proposed by the government in other sections, and we believe it should be made in this section as well.
Mr Tilson: This presentation was made by Mrs Boyd with respect to earlier amendments with respect to the treatment decisions. We note that your amendment excludes relatives by marriage.
Mrs Boyd: Excuse me, it's a different issue. You have amendments throughout your act saying that "spouse" under this act does not include someone who is separate and apart under the Divorce Act. You just missed a section, and we're just putting it in.
Mr Tilson: That isn't how I read it. We're on page 5? Then I'm going to continue that my interpretation is correct. This motion would affect several different sections and procedures under the Substitute Decisions Act. For example, Mrs Boyd's proposal would prohibit a separated spouse from ever, under any circumstances, being considered as a replacement for the PGT as a statutory guardian. You're frowning, but that's what it says. You're looking very bewilderedly, but that's what your section says. If you want to withdraw it --
Mrs Boyd: I do not wish to withdraw it. Would you look at your amendment 12? You just missed a section.
Mr Tilson: I'm simply saying, Mrs Boyd, that we don't think an outright prohibition on such applications is warranted as you're doing with respect to your amendment. The government opposes your amendment.
The Chair: If there are no further comments, shall the amendment carry?
Mrs Boyd: A recorded vote.
Ayes
Boyd.
NAYS
Michael Brown, Caplan, Doyle, Grandmaître, Guzzo, Johns, Leadston, Parker, Tilson.
The Chair: Mrs Boyd, your next amendment is on page 6, I believe.
Mrs Boyd: I move that section 3 of the bill be amended by adding the following subsection:
"(4.1.1) Subsection 1(1) of the act is amended by adding the following definition:
"`will' has the same meaning as in the Succession Law Reform Act."
The rationale behind this proposal is that we heard from a number of lawyers their concern that the definition of "will" did not include a lot of other items that very often accompany wills. I'll quote from the submission that was made.
Mr Tilson: We agree with you.
The Chair: The government agrees. Is there any further comment? Shall the amendment carry? Carried.
The next amendment is on page 7.
Mrs Boyd: This is the amendment that Mr Tilson confused with our previous amendment, subsection 3(5) of the bill, subsection 1(2.1) of the Substitute Decisions Act, 1992.
I move that subsection 1(2.1) of the Substitute Decisions Act, 1992, as set out in subsection 3(5) of the bill, be amended by striking out `blood, marriage or adoption' in the last line and substituting `blood or adoption'."
The rationale is the same as it was in the Health Care Consent Act. We heard many people say they thought that left it very vague, that there were people who could apply under this section who were very distant. Particularly where that hierarchy is in place, that did not give people much comfort.
Mr Tilson: We oppose the amendment for the same reasons as before. We believe this amendment excludes all relatives by marriage from some significant opportunities in the act, and we don't feel that would be appropriate. To use Mrs Johns's words, this is the 1990s, and relatives through marriage certainly can make a contribution valid contribution to the family unit. We believe, in our party at least, that the PGT should be used as a last resort and that there are others who could get involved in the process. We don't see why, for example, a daughter-in-law should be prohibited, even from being considered at least, as a statutory guardian of property to replace the OPT. We submit this approach as simply too rigid.
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Mrs Caplan: While I share the concern that some long-lost relative might appear, I do believe that could be resolved by an amendment we have further on that requires the test of a relationship within 12 months, so we will not be supporting this.
The Chair: If there's no other comment, shall the amendment pass? All those in favour? All those opposed? The motion is defeated.
Shall section 3 pass, as amended?
Mrs Caplan: It's 3, 4 and 5.
The Chair: The other two are unamended so I'll treat them differently. Three? Carried. And sections 4 and 5, as unamended? Carried. You're way ahead of me, Mrs Caplan.
Section 6. There's a proposed amendment by the government to subsection 6(2).
Mr Tilson: I would move that subsection 6(2) --
Mrs Caplan: We'll give unanimous consent. We have the same amendment.
The Chair: Read it into the record, Mr Tilson.
Mr Tilson: I'm glad to see your support. The Liberals and Conservatives are agreeing on something.
I move that subsection 6(2) of the bill be struck out.
We've heard the concerns of people, especially those who practise in this field, seeing the problems associated with the execution of powers of attorney. We'd like to quote from one of the submissions of --
Mrs Caplan: We agree.
Mr Tilson: Does everybody agree? If everybody agrees, I will stop, Mr Chairman.
The Chair: Shall the amendment carry?
Mrs Caplan: I'd like to withdraw the next one, because it is identical, but I think it just should be pointed out that the effect of this is that children cannot be witnesses to powers of attorney. That was a concern expressed by many. It's a concern we had and we spoke to that. I'm satisfied that this amendment will mean that children who may have an interest -- and we have seen abuses around coercion and so forth -- will not be able to act as a witness to powers of attorney, and we think that's appropriate.
Mr Tilson: Notwithstanding the agreement, I would for the record like to put forward the submission of one of the delegates, people by the name of Laidlaw.
The Chair: I'm calling the question, Mr Tilson. We're all in agreement. It's unanimous.
Mr Tilson: Well, Mr Chairman, I've sat here and listened to the --
Mrs Caplan: Why do you want to delay these hearings?
The Chair: Mr Tilson, we rarely obtain unanimous agreement at this table and at this place. I think we should celebrate it rather than prolong it.
Mr Tilson: By overwhelming demand, I will not read it into the record.
The Chair: All those in favour? Carried.
We are now moving to page 10, Mrs Boyd.
Mrs Caplan: We're withdrawing 9.
The Chair: Well, it was never made.
Mrs Boyd: I move that section 6 of the bill be struck out and the following substituted:
"6. Subsection 10(3) of the act is repealed and the following substituted:
"Execution by witnesses
"(3) Each witness shall sign the power of attorney as witness, if the witness has reasonable grounds to believe that the grantor is capable of giving a continuing power of attorney."
We had presentations by the following groups and individuals: the Toronto Mayor's Committee on Aging, the Psychiatric Patient Advocate Office, the Ontario Association of Professional Social Workers, the Advocacy Centre for the Elderly, the London Battered Women's Advocacy Centre, the Adult Protective Services Association, Legal Assistance of Windsor, the Alzheimer Society of Ottawa-Carleton and the Lanark law association, all of whom really urged us to recognize the need to ensure that people have reason to believe that people are capable.
It's really important for us to keep in mind that this is a very important and sensitive issue around people's confidence, that they will not be taken advantage of and that no one will witness a power of attorney if they are not capable of giving it, and it certainly was mentioned by a lot of people.
Mrs Caplan: We've given this one a lot of thought and the concern I have I think is the concern that the legal secretaries who were called in to witness expressed when they came before the committee and that was, when you witness a signature, you witness and signature, and that's it. It's over and it's done with. The suggestion that when you witness a signature you are in some way having to make a judgement about capacity, when you may not have even been in the room for the discussion, you don't know the person -- I think it's an unfair responsibility to place on someone who is being called in for the purpose of witnessing a signature.
While I share the concerns of all of those who came forward to make the argument that says you should have reasonable grounds to assume capacity, we're not going to support this amendment. We believe that it is unfair to place people in the position where they may later have to testify that they had reason to believe that the person was competent, without having had any process or competence in the area of capacity.
The concern that I have is the use of the term "reasonable grounds," which I think in law has a fairly strong test to it. So we've struggled with this because we're sensitive to the issue and we think that there should be a way of addressing it, but we don't think it's fair to place people who are coming to witness a signature in that position of responsibility.
Mr Tilson: The government agrees 100% with what Mrs Caplan just said. Surprise. The difficulty I see with this amendment is that you're going to have a lot of trouble getting people to witness these documents. When you ask them to warrant something, word will get out that they could be holding themselves out to something they can't do and they could end up being liable, and the work simply won't get done.
Two expert estate lawyers from private practice came to the committee, Hilary Laidlaw and Paul Milne. I'll just refer briefly to Hilary Laidlaw's submission; they both say essentially the same thing:
"I support the repeal of the witness attestation requirements for both powers of attorney for property and powers of attorney for personal care, as set out in subsections 10(3) and 48(3) of the Substitute Decisions Act. These provisions have been interpreted by many to require that a witness satisfy himself or herself as to the capacity of the grantor to give the power of attorney, as it is not clear from the wording of the provision that the mere absence of any belief to the contrary is sufficient." This is the main part, Mrs Boyd: "Few witnesses are prepared, or indeed qualified, to make such an assessment. As a result, it can often be difficult to find witnesses for a power of attorney because of the possibility of their being drawn into litigation if the grantor's capacity is ever put in issue," and she continues. You all have this and I won't proceed. But Mrs Caplan said it very ably and the government agrees with her submissions.
Mrs Boyd: Just as many of the legal people came forward to say that in fact they thought it needed to be an attestation similar to that of a will, and the government also rejected that. We can understand that in the sense that that then really does away with part of the reason to try and make this as user-friendly as possible so that people could fill out their own powers of attorney, get them witnessed and have them, without having to rely on a lawyer, and I agree with that position.
I personally think this issue around finding it difficult to find witnesses is a red herring. I have witnessed powers of attorney. I have had my own witnessed. I have been involved in a number of cases where people have had it witnessed. There was never any question about this. What we are talking about is a certain level of preciousness here. I would think that if a witness were anxious about that, they would be anxious about that because they had some reason to wonder whether or not the person was incapable. That's the only reason you would wonder. If you're anxious about it, you're worried that in fact somebody might not be capable. I find it extremely difficult to take very seriously that argument at all.
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Mrs Caplan: I tested this out. On one occasion I was in a place where power of attorney was being drafted and people witnessed and it was a requirement under the old act that you satisfy this test. This actually replaces what exists today. After, I said to them, "So, did you think about this requirement before you witnessed it?" The answer was, "No."
I don't think that people who come to witness a signature or a document like this think about or have thought about that provision. They just signed it because most witnesses are witnessing signature. I don't think that was a thought process they went through. As much as you would like to think that it happened, I don't believe it was happening, and I believe to be held responsible later for something like that is just not achieving the purpose that you want to achieve anyway.
The Chair: Shall the amendment carry? All those opposed? It is defeated.
Shall section 6 carry, as amended? Carried.
Moving on to section 7, there are two government amendments.
Mr Tilson: This is page 11 of the papers.
I move that clause 11(d) of the Substitute Decisions Act, 1992, as set out in subsection 7(1) of the bill, be amended by striking out the portion before subclause (i) and substituting the following:
"(d) unless the power of attorney provides otherwise, the grantor's spouse or partner and the relatives of the grantor who are known to the attorney and reside in Ontario, if,"
In reviewing the bill, and noting the comments of the Advocacy Centre for the Elderly and the Canadian Bar Association about the scope of the term "relative," we re-examined clause 11(d), which speaks to who an attorney has to notify if he or she resigns, and we thought about two things: One, should an attorney have to notify relatives all over the world, whether they be in Europe or China? Is that reasonable? We thought not. It is too onerous and may in some cases simply be outright silly. So we are limiting the group that's to be notified of the relatives living in the province of Ontario.
Mrs Caplan: Agreed.
Mr Tilson: If we have agreement, I'll stop.
Mrs Boyd: Of course.
Mr Tilson: You agree.
Mrs Boyd: Of course. I wanted it strengthened earlier.
Mr Tilson: Please say so.
The Chair: The motion is carried. Please move to the next amendment, on page 12. Mr Tilson, could we have the next motion please.
Mr Tilson: Yes, Mr Chairman. I move that section 7 of the bill be amended by adding the following subsection:
(1.1) Section 11 of the act is amended by adding the following subsection:
"Exception
"(1.1) Clause (1)(d) does not require a copy of the resignation to be delivered to,
"(a) the grantor's spouse, if the grantor and the spouse are living separate and apart and within the meaning of the Divorce Act (Canada); or
"(b) a relative of the grantor, if the grantor and the relative are related only by marriage and the grantor and his or her spouse are living separate and apart within the meaning of the Divorce Act (Canada)."
Mrs Caplan: Agreed.
The Chair: Is there any opposition to the motion, as put forward by the government? It is carried.
Shall section 7, as amended, carry? Carried.
We're moving on to sections 8 and 9. Shall those sections carry? Carried.
Section 10, Mr Tilson, we have an amendment.
Mr Tilson: I would move that subsection 16(2) of the Substitute Decisions Act, 1992, as set out in section 10 of the bill, be amended by striking out the portion before clause (a) and substituting the following:
"Form of request
"(2) No assessment shall be performed unless the request is in the prescribed form and, if the request is made in respect of another person, the request states that,"
Mrs Caplan: Agreed.
The Chair: Agreed? Is there no objection? It is carried.
Moving on to the next motion, Mrs Boyd, on page 14.
Mrs Boyd: I move that subsection 16(6) of the Substitute Decisions Act, 1992, as set out in section 10 of the bill, be struck out and the following substituted:
"Rights advice
"(6) If a certificate of incapacity is issued under subsection (3), a person designated by a non-profit corporation established for the purpose of providing rights advice under this act shall,
"(a) explain to the grantor the significance of the finding of incapacity and the right to apply to the Consent and Capacity Board for a review of the finding; and
"(b) if requested, assist the grantor in obtaining representation for the purpose of an application to the Consent and Capacity Board."
This is the same issue about rights advice, the same issue that we had in the Health Care Consent Act. It is very, very important that the government understand the seriousness of what it is doing by not providing for people to be informed when they have been found incapacitated and for not being informed of their right to appeal that finding.
The overwhelming number of representations in front of this committee stressed the importance of that, both under the Health Care Consent Act and under this act, and we urge the government to rethink its refusal to ensure that incapacitated people have the option of appeal.
The Chair: We've explored this issue at length. Is there any other comment? If not, I'll --
Mrs Caplan: I would just like to get on the record, we supported, because there was no other alternative before us, the establishment of the not-for-profit model, as suggested by some of the presentations that came here. However, there is no not-for-profit model in existence and it's only a technicality that this motion is in order. We felt it was out of order, because how can you require something from an entity that isn't? So we can't support this, only because we don't think it makes any sense to require something from an entity that does not exist. If it exists in the future, it would be reasonable to amend the legislation, but it's not reasonable, in our view, to put a requirement in here that can't be carried out.
Mr Tilson: Mrs Johns has thoroughly debated this issue with you, Mrs Boyd, and I won't add to that. We simply don't agree that the only effective way of informing people is hiring third-party people to come into the process.
The Chair: Shall the motion carry? Those in favour? Those against? The motion is defeated.
Mrs Boyd, you have an alternative motion?
Mrs Boyd: I do, Mr Chair, but I don't believe it's worded appropriately. It should have said, as the one that we did under the Health Care Consent Act, "someone who is in a psychiatric facility," and it does not.
The Chair: Are you withdrawing it?
Mrs Boyd: Yes.
The Chair: You just won't bring it. Okay.
Shall section 10, as amended, carry? All those in favour? Carried.
We are moving to section 11, Mrs Caplan, on page 17, I assume.
Mrs Caplan: Yes. I move that section 17 of the Substitute Decisions Act -- is it 16?
The Chair: Yes, 16, sorry.
Mrs Caplan: Have we got the wrong number on ours? Oh, page 16. It is page 16.
I move that section 17 of the Substitute Decisions Act, 1992, as set out in section 1 of the bill, be amended by adding the following subsection:
"Statement
"(2.1) An application by any of the persons referred to in paragraphs 1, 2 or 3 of subsection (1) shall contain a statement by the applicant indicating that he or she has been in personal contact with the incapable person during the preceding 12-month period, that their relationship is friendly and that the applicant is willing to perform all duties with respect to the incapable person's property."
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The intent of this is to deal with that issue of relationship by marriage or any other, frankly. A few minutes ago, we dealt with an amendment to try and remove the notion of marriage because it might be such a far distant relationship as to be a farce. We believe that in-laws and other relatives may well be the right choice and have the best interests of the incapable person and it's appropriate that they be selected in that hierarchy. However, before anyone is selected, we think there should be a test of reasonableness as to the relationship.
We think this is a very simple amendment. We hope the government will support it, because I think it would give comfort to people who are about to be placed in guardianship to know that someone cannot come forward to be named a guardian who doesn't meet this test.
Now, I know that the government will say the courts make these decisions and that they take all these things into consideration. However, I think that it would give comfort if it was in the statute as direction to the courts as they went looking for who should be the guardian.
And I wouldn't accept the argument that says, well, if they had a relationship where they haven't seen each other or spoken to each other or had contact, the court would want the discretion or the flexibility to be able to do that ahead of the public guardian and trustee, because that's the concern that I have. I believe that you've got to be able to prove you have a relationship with a person, and if you haven't had as much as a phone call or a Christmas card or a birthday card or some kind of contact in a year, then I think that the courts should not be able to appoint you their guardian. I'd rather that people have that kind of protection, rather than some long-lost relative showing up, attesting to love and affection and convincing the courts that they should be the guardian.
This is a very serious amendment and I hope the government's going to support it.
The Chair: Mr Tilson, is the government able to support this motion?
Mr Tilson: No, it's not, Mr Chairman. I assume the committee members have referred to the current form that exists now, and we will be changing that to deal with the issue of financial institutions being added, but we certainly won't be changing that portion which has the required information that you're speaking of.
We believe that this amendment is simply going to complicate things further. We don't disagree that this is an important issue to consider, an application to replace the official guardian when the applicant is an individual and not a financial institution, but we don't think it's necessary to have this in the statute when you've got the form. The current form, the current application, which is the form, requires that this statement be in there. At this stage, we will undertake to keep this statement in the prescribed form, the statement that is of concern to you.
Section 89, I might also draw to the committee members' attention, of the Substitute Decisions Act, if you would refer to that, makes it an offense to make a false statement in the prescribed form. So I think, to both members of the opposition, that your concerns are adequately addressed and that the amendment would be inappropriate.
Mrs Caplan: I'm not going to prolong the debate on it. I'm disappointed at the government that they will not support it. Again, the reason for it is because they claim they're doing it already in a form which can be changed by reg, and while he undertakes that they have no intention of changing that --
Mr Tilson: We have not, no.
Mrs Caplan: -- in the foreseeable future, that doesn't give the confidence that having it in the statute would give. On this one, I trust that you're not going to make that change and you've given that undertaking and I appreciate that, but I believe that people would have greater comfort if they knew that forever and a day it was in the statute and that before the form could be changed in the future by some future government, it would require legislative action rather than a change in regulation or a change in the development of a form.
That's all I have to say. Let's vote.
Mrs Boyd: We had many people come in front of us who wanted this restored, who felt it was very serious. I'll only read one of those presentations, from ARCH, the legal advocacy group for disabled people:
"Paragraph 17(1)2 allows a relative to apply to replace the PGT as an incapable person's statutory guardian of property. Since the definition of relative in the proposed subsection (2.1) of the act is so broad (anyone related by blood, adoption or marriage) there appears to be no limit on what family ties will be recognized and there is nothing in the act allowing the vulnerable person to challenge the appointment of a particular relative. These provisions could violate a person's right to life, liberty and security of the person as set out in section 7 of the Canadian Charter of Rights and Freedoms."
Had the government accepted the previous motion that we put forward that would not have allowed distant relatives by marriage, we wouldn't be as concerned about this. But we heard people talking about how concerned they were about how wide open this is. We need to remember that this is a statutory guardian situation. It's a very serious matter. The person could come in and have full control over a person's property, and indeed over their entire life, and it is not appropriate for the government not to safeguard vulnerable people against the enormity of having someone who knows nothing about them, knows nothing about their wishes, knows nothing about the course of their life, to even have that as a possibility for someone to have this kind of power over another person. It's unconscionable, and I hope the government will remember the number of people who came in front of us saying how concerned they were about this and how inappropriate this was.
The Chair: Shall the motion pass?
Mrs Boyd: Recorded vote.
Ayes
Boyd, Michael Brown, Caplan.
NAYS
Guzzo, Johns, Klees, Parker, Tilson.
The Chair: The motion is defeated. Shall sections 11 and 12 pass? Carried. Section 13.
Mrs Caplan: We found an alternative motion, and I will read it into the record.
I move that subsection 24(2.1) of the Substitute Decisions Act, 1992, as set out in subsection 14(3) of the bill, be struck out and the following substituted:
"Same
"(2.1) Subsection (1) does not apply to a person if,
"(a) the compensation received by the person for providing the health care or the services is not received from the incapable person; and
"(b) the court is satisfied that there is no other suitable person who is available and willing to be appointed."
Can I speak to this?
Mr Tilson: Mr Chairman, I need somebody to help me. I'm lost as to which --
Interjection: Page 17.
Mr Tilson: I have that, but I don't think that's what she's reading.
Interjection: She's reading page 17a.
Mr Tilson: I don't have 17a.
Interjection: So she skipped the 17th?
Mrs Caplan: We dealt with 17. Oh, I apologize. I skipped that one as I was flipping the pages.
The Chair: Does everybody have 17a?
Mrs Caplan: I apologize, Mr Chairman. The page flipped. Section 13 of the bill. That's where we are, correct?
I move that section 19 of the Substitute Decisions Act, 1992, as set out in section 13 of the bill, be amended by adding the following subsection:
"Same
"(1.1) If he or she is satisfied that it is necessary to do so in order to prevent harm, the public guardian and trustee shall act as guardian of property for an incapable person."
I think this is clear. It requires an intention to protect from harm. The concern is that without that in place, you may have precipitous action taken when there is no harm. We felt that the actions of the public guardian and trustee should be fettered and that tying it to having to justify that they are taking over someone's life is because there is a risk of harm.
The notion of harm is very clear in the Mental Health Act. A person can be detained if they are of harm to themselves or to another person, ie, society. Therefore, we felt it was reasonable to introduce the notion of harm into the substitute decision legislation. Since we all agree that we want the office of the public guardian and trustee to act as a last resort, we believe that the notion of harm before they can take action is appropriate.
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Mrs Boyd: I think all of us have expressed a desire to have the public guardian and trustee be the last resort, and I believe that the government's motion is premised on that, that the act as it is is premised on the notion that the public guardian and trustee would only elect -- because the section says that they may elect to become the incapable person's statutory guardian. I would think they would only do that if they felt it were necessary. I'm not sure that it's only harm. It may be that the person who they might want to come along afterwards -- because it does say until another person is appointed as guardian of property.
Say, for example, my brother were to be my guardian of property and he were the next in the hierarchy but at the moment, or for about three months, he's in Malaysia, say. This would enable the public guardian and trustee to take on the task until that guardian could be appointed. I might not be under any threat of serious harm, or my property might not be under any threat of serious harm, but it would still be important for the public guardian and trustee to be able to make that decision. I think the way it's worded they are only doing that until another guardian could be appointed. So I don't think the necessary harm is the only test. There may be other reasons.
Mr Tilson: This is in the old legislation and we took it out --
Mrs Boyd: That's right, as the last resort.
Mr Tilson: -- and we consciously took it out. We took it out because we felt it was vague and redundant. If you look at section 27, it already requires the public guardian and trustee to get involved if there's a risk of serious harm, if you look at that section. They can then elect to step back in, to get back into the issue, in a situation where the private statutory guardian stops acting and there's a risk of harm. So that's in section 19 of the Substitute Decisions Act, as amended by section 13 of Bill 19. With due respect to Mrs Caplan, we feel that the section is unnecessary and we don't intend to support it because of that.
Mrs Caplan: Just to clarify, I just want to make the case; then I'll withdraw. The intention here was not to be redundant in language but to clarify. We felt it was clearer if the language was repeated. But if you are satisfied and if everyone seems to be satisfied that in fact the public guardian and trustee cannot take over a person's life unless they're concerned about harm, if that's the assurance I have from you, Mr Tilson, then I'll withdraw the amendment.
The Chair: So withdrawn? Thank you. Shall section 13 carry? Carried.
Moving on to section 14, our first amendment is --
Mrs Caplan: Page 17a. This is an alternate motion, actually, to the one I read in. I read the --
Mr Tilson: If it would help the committee, if you turn to page 18, which is the Liberal amendment, the government is prepared to accept that amendment.
Mrs Caplan: That's helpful.
Mr Tilson: So it might save a bit of debate.
Mrs Caplan: So on page 18 it would deal with the conflict of interest?
Mr Tilson: Yes.
Mrs Caplan: Fine. We had reworded it to be more specific, but that's just fine. We will withdraw 17 and move directly to 18.
I move that subsection 24(2.1) of the Substitute Decisions Act, 1992, as set out in subsection 14(3) of the bill, be struck out.
This does not any longer permit someone who is in a compensation relationship to be named a guardian. Is that correct?
Ms Spinks: Except a relative.
Mrs Caplan: I wanted to be clear on that. We had a number of concerns. We were looking for ways to do that and we had a number of different options. What we actually do here is revert to what existed, which allows relatives who have a relationship where they work and are paid for it, there is a compensation relationship, but no one else can be in a guardianship position for property. They can for personal care if there's a power of attorney that is a selection when the individual is capable, but they can't be named, I believe, unless it is at the clear instruction of the individual. You read that out for us once before, Trudy. It might be helpful to just put on the record at this point what is and is not allowed for someone who is in a compensation relationship.
Ms Spinks: Section 24 of SDA speaks to the appointment of a guardian to manage property by the court and says, "A person who provides health care or residential, social, training or support services to an incapable person for compensation shall not be appointed as his or her guardian of property." But there is an exception provided for the "person's spouse, partner or relative or to...the incapable person's guardian of the person," if there is one appointed, "the attorney for personal care" and "the attorney under a continuing power of attorney." So there are some exceptions.
Mrs Caplan: That clarifies it. We think that with those exceptions it's appropriate and we're pleased that you have accepted the amendment.
The Chair: Is it agreed that it's carried? Carried.
There's subsection 14(3) alternative. Do we need that one now, Mrs Caplan?
Mrs Caplan: No, that's the NDP one.
The Chair: No, there's an 18a.
Mrs Caplan: No, that's no longer required. That also is redundant.
The Chair: We'll just move directly to Mrs Boyd then, page 19.
Mrs Boyd: Obviously number 19 is not necessary. It was the same motion. So that can be discarded. But the next motion I would like to put forward.
I move that subsection 14(3) of the bill be amended by adding the following subsection to section 24 of the Substitute Decisions Act, 1992:
"Same
"(2.1.1) Subsection (2.1) does not apply if the person described in subsection (1) is the incapable person's guardian of the person."
This is the issue that Trudy just mentioned. She said that one of the exceptions under the previous section that we talked about is that if the person were the guardian of the person, they could also be the guardian of the property. That was one of the issues that we heard in terms of people having total control over the person and the property and the real possibility that someone might be taken advantage of under those circumstances.
The Chair: Excuse me. I do believe it may be out of order in that subsection (2.1) has been removed from the act and we're amending a subsection that no longer exists.
Mrs Boyd: I would still like very much to have this. Is there some way that we can add a section? This applies to the section that Ms Spinks talked about.
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Mr Tilson: Could we ask for unanimous consent to consider this and stand this issue down?
The Chair: Is there unanimous consent to have this matter stood down? Thank you. Section 14 has been stood down on unanimous consent.
I now shall ask whether sections 15, 16, 17, 18 and 19 shall pass? Is it carried? Carried.
Mrs Caplan: Unless Mr Tilson would like to speak to them.
The Chair: I'm pleased to see we're all retaining our sense of humour.
Section 20.
Mr Tilson: I move that section 20 of the bill be amended by adding the following subsection:
"(0.1) Section 32 of the act is amended by adding the following subsections:
"Personal comfort and wellbeing
"(1.1) If the guardian's decision will have an effect on the incapable person's personal comfort or wellbeing, the guardian shall consider that effect in determining whether the decision is for the incapable person's benefit.
"Personal care
"(1.2) A guardian shall manage a person's property in a manner consistent with decisions concerning the person's personal care that are made by the person who has authority to make those decisions.
"Exception
"(1.3) Subsection (1.2) does not apply in respect of a decision concerning the person's personal care if the decision's adverse consequences in respect of the person's property significantly outweigh the decision's benefits in respect of the person's personal care."
Mrs Boyd: I'm really delighted that the government has put this amendment in, because it answers some of those questions about what would happen if there were conflict in the circumstances between property and personal care. I think it's very helpful.
Mrs Caplan: We agree.
The Chair: It's carried.
Mrs Caplan: My question really is, in light of this, what impact this would have on what we've stood down.
Interjection.
Mrs Caplan: Okay, because that was the reason that we were comfortable, that they were moving this amendment as well.
The Chair: Shall section 20, as amended, carry? Carried.
Section 21.
Mr Tilson: I move that section 33.2 of the Substitute Decisions Act, 1992, as set out in section 21 of the bill, be amended by adding the following subsection:
"Copies of documents
"(3) A person who has custody or control of any document relating to an incapable person's property that was signed by or given to the incapable person shall, on request, provide the incapable person's guardian of property with a copy of the document."
The Chair: Is there any objection to that? Carried.
Shall section 21, as amended, carry? Carried.
Shall sections 22, 23, 24, 25, 26 and 27 carry? Carried.
Section 28.
Mrs Boyd: I move that section 28 of the bill be struck out and the following substituted:
"28. Section 41 of the act is repealed and the following substituted:
"Financial statements
"41. A guardian of property shall prepare regular financial statements in accordance with the regulations."
We heard many people come forward saying that removing the requirement to prepare a report, as was required under the old act, indeed put people at a disadvantage. It's rather important, from our perspective, since the government made very strong representations that it didn't need to be done this way, that it had given itself regulating power, that we just make sure that those regulations are mentioned in the bill and that it's clear that a guardian of property must prepare those in accordance with the regulations however they are set. The real issue is ensuring that there is a definite obligation within the act that a person's guardian of property needs to be in compliance with regulations.
The Vice-Chair (Mr Ron Johnson): Any further discussion?
Mr Tilson: The government will not be accepting or agreeing to this motion. We feel it's redundant. There's already a requirement in section 20 of Bill 19 which amends subsection 32(6) of the Substitute Decisions Act to require that a guardian of property keep accounts of all transactions involving property. As well, the regulation authority added by section 60 of Bill 19 will cover the content and disclosure of these accounts, and the incapable person will be entitled to the accounts.
Mrs Boyd: The keeping of accounts and the making of a report from those accounts are two different things. For the guardian to have those accounts someplace and to keep them is one thing; having the report of that available upon request is a different issue.
Mr Tilson: Our position was supported by the Alzheimer organization, the Canadian Bar Association. With respect, it's the same information.
Mrs Boyd: It wasn't supported by the Canadian Mental Health Association or the Independent Living Centre of London. We can trade these things. There were a significant number of deputants who came and said, "Why are you taking out the requirement for people to give regular reports when they're the guardians of property?" It is good that they're going to have to keep accounts. It is good that you're going to pass regulations to tell them how to keep those accounts. Keeping of accounts and reporting of accounts are two different things.
The Vice-Chair: Seeing no further discussion, all those in favour of the amendment?
Mrs Boyd: Recorded vote, please.
Ayes
Boyd.
Nays
Caplan, Doyle, Grandmaître, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Vice-Chair: The motion is defeated.
Shall section 28 carry? Carried.
Section 29? Carried.
Section 30, Liberal 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."
We dealt with this under the Health Care Consent Act. The decision was that the government would not support it in the Health Care Consent Act because it was new. All this does is clarify that which the common law makes unclear when it comes to powers of attorney. I'd make the argument again that this is a place holder while all of the consultation goes on that may have a future amendment and change to the health care consent and the substitute decision legislation, and this is for the question of clarity of the law.
It's because the common law is unclear as to whether or not this is permitted and for those who have degenerative diseases who came before this committee and asked for that clarity. Because there are people now who are doing that, they just want to know that their wishes will be respected. When I say "doing that," they're making out powers of attorney saying that if they have a degenerative disease, while they're competent they want to be able to direct their substitute decision-maker or their guardian to permit them to participate in research studies.
I would hope that at this point the government will include this, recognizing that it is a place holder, it's a Band-Aid and it's temporary, but it clarifies the common law, which may permit it today. It may; it may not. It's not like we're entering in a new concept here. There's nothing new about this. It's just allowing people to do what they've said they want to be able to do, and that is be clear that their wishes that are set out in a power of attorney will be respected.
Mr Tilson: We spent some time with this during the consent to treatment part of our debates and it certainly is a very complex and controversial issue, so much so I'm going to ask Ms Spinks to make some comments.
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Ms Spinks: Trudy Spinks, for the record. As I said earlier, the people who do medical research and run these studies, and some very prominent people, have concerns about any change to the legislation. I think they're quite willing to discuss changes but at the moment quite strongly support subsection 66(13) of the current SDA, which says that nothing in this act affects the common law relating to research.
We would be changing that by adding in a section which would then come into conflict with that. I understand the rationale behind the proposal and I think we're all agreed that it's an issue that needs to be looked at and given high priority, but to make a change now in the legislation by adopting this motion might cause some unintended complications with respect to other aspects. Until all of those issues can be considered together and the appropriate consultation done, it may be more dangerous to try and make a change at this point than to look at making a change fairly soon but in a more comprehensive way.
Mrs Caplan: I want to be clear, Trudy, that you understand what it is I want to do here. I don't believe that anyone who's appointed a guardian should be able to consent to research -- that wouldn't be the change we're doing -- unless that person is specified in a power of attorney and in written form someone has given a clear advance directive. Those are two different concepts. This legislation deals with statutory guardianship without a power of attorney and advance directives, the ability to write a power of attorney. Those are two different concepts.
I understand the concern about allowing a guardian under a statutory guardianship provision to be able to make those decisions, and I agree that before any changes are made on that side, all of the consultation you want to undertake is absolutely appropriate. It may also result in the form and so on, on the statutory obligation under the power of attorney, but the intention here is that what exists today -- because you do have these two different concepts: You have the power of attorney and you have statutory guardianship.
I don't want to touch statutory guardianship. That's where I think the controversy lies. But I don't believe there is or should be any controversy about respecting of wishes, and this legislation in many places talks about respecting a person's values, allowing them to write advance directives, letting them get into Ulysses contracts, letting them write a power of attorney and having instructions in that power of attorney. I don't think it is at all controversial or at all a stretch to allow them also to express their wishes in writing, while they are competent, in a power of attorney as to whether or not they want to participate in research projects.
It's very narrow. What this would permit is a very narrow clarity, and while I hear you say it's a priority, I know how difficult it is to get this legislation on the government's agenda. This is not something that gets on and gets legislative time and has committee time. The issues surrounding consent and advocacy and substitute decision legislation were 20 years till they got on the agenda. Three governments fiddled around with consultations on it before it was brought in by the last administration.
My fear and my worry is that we can today, because the act is open and we're here, accommodate one very narrow area where we have had requests, and that's people with Alzheimer's, people with AIDS, people who today are understanding and able to appreciate the benefit that would come if they were able to say while they are competent that they want to be a part of the research study of the disease. I think it's that narrow that it would not be dangerous, because someone would state that in a power of attorney: it would be written, it would be their wishes, it would sit with their values and it does not affect statutory guardianship. It's only in the very narrow power of attorney, and I'd ask you to reconsider the request, because it is something that we heard from deputations.
I understand the academic work that Professor Weisstub is doing and I respect that, but I think he's dealing more with the issues of statutory guardianship and all of the complexities around all of the issues of being able to have a substitute say, "We want you out." This is a simple request and it's very narrow. If a substitute can opt you in with a power of attorney, they can also opt you out, because that person has discussed this matter with the individual when they were competent. They understand their values, their wishes and their desires.
I think it's wrong at this time to miss this opportunity to respond to that very narrow concern about someone being able to express that wish while they're competent. I make that plea because I don't know how quickly you're going to get back on the legislative agenda on an issue which is, frankly, as esoteric as this one. I'll hope you'll reconsider. Any chance?
The Vice-Chair: Any further discussion? Seeing none, all those in favour of the amendment?
Mrs Boyd: Recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître, Marchese.
Nays
Doyle, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Vice-Chair: The amendment is defeated.
Shall section 30 carry? Carried.
Section 31. Mrs Boyd.
Mrs Boyd: The effect of this motion would be similar to one that was previous around the witness having reasonable grounds to believe the grantor of a power of attorney was competent at the time. We won't go through the arguments again, we'll just repeat that the Toronto Mayor's Committee on Aging, the Psychiatric Patient Advocate Office, the Ontario Association for Community Living, the adult psychiatric services, Blake, Cassels and Graydon and numerous other people coming before us felt that indeed there needed to be some indication that the person was competent at the time and the witness had that sense. I will withdraw the motion with great disappointment.
The Vice-Chair: That motion is withdrawn.
Shall section 31 carry? Carried.
Section 32, first amendment is a Liberal amendment. Mrs Caplan.
Mrs Caplan: I move that section 49 of the Substitute Decisions Act, 1992, as set out in subsection 32(1) of the bill, be amended by adding the following subsection:
"Notice to grantor
"(3.1) Before an attorney first exercises authority to make a decision concerning a grantor's personal care, the attorney shall give notice to the grantor that the attorney believes the grantor is incapable of making personal care decisions and that the attorney is acting on the grantor's behalf, under the authority of the grantor's power of attorney for personal care."
This would foster communication, which I think quite naturally we would all expect to exist anyway, but because sometimes as people become incapable, particularly with progressive illnesses, they may not realize that their power of attorney and their decisions are now being made by the person that they had asked to make decisions for them. I think it's helpful to foster communications, particularly in difficult times when you might not want to talk about things. We felt that this was respectful. One of the tests that we would like to always have when we're looking at public policies is respect for the dignity of the individual.
We're not requesting a Mirandizing type of thing where you would have to say to the person, "I'm, by statute, required." That's not what we're intending at all. All we're saying is you have an obligation to say: "Mom, Dad, I'm going to be making this decision for you. Remember you signed that power of attorney asking me to do this, and it's time." There's no longer a requirement for validation or anything else, as was in the previous legislation, and we agree with that. We think that was cumbersome and time-consuming and unnecessary. We think this is just a good idea.
Mr Tilson: The government will be opposing this motion. We believe it's redundant. I refer the member to subsection 66(2), which says, applying to duties of guardians of the person and attorneys for personal care: "(2) The guardian shall explain to the incapable person what the guardian's powers and duties are." We believe that adequately answers the member's concerns.
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Mrs Caplan: I think it's different to explain what the powers and the duties are as opposed to the fact that you're doing it. Maybe it's a technicality. I just think what our amendment does is say, "I'm now going to be making those decisions for you, as we agreed previously, and, by the way, that allows me to do such-and-such."
Mr Tilson: Well, that's what you're supposed to do. Maybe our argument is in semantics.
Mrs Caplan: I didn't like your language then. It wasn't clear enough, that's all.
The Vice-Chair: Seeing no further discussion, all those in favour of the amendment? Opposed? The amendment is defeated.
The next amendment on section 32 is a government amendment.
Mrs Caplan: Is there any way we can dispense with the reading and just approve it?
The Vice-Chair: If you agree.
Mr Tilson: It's essentially the Ulysses contract issue, Mr Chairman.
The Vice-Chair: Mr Tilson, I am sorry. It does have to be read into the record.
Mr Tilson: I move that subsections 50(1), (2) and (3) of the Substitute Decisions Act, 1992, as set out in subsection 32(1) of the bill, be struck out and the following substituted:
"Special provisions
"(1) A power of attorney for personal care may contain one or more of the provisions described in subsection (2), but a provision is not effective unless both of the following circumstances exist:
"1. At the time the power of attorney was executed or within 30 days afterwards, the grantor made a statement in the prescribed form indicating that he or she understood the effect of the provision and of subsection (3.1).
"2. Within 30 days after the power of attorney was executed, an assessor made a statement in the prescribed form,
"i. indicating that, after the power of attorney was executed, the assessor performed an assessment of the grantor's capacity,
"ii. stating the assessor's opinion that, at the time of the assessment, the grantor was capable of personal care and was capable of understanding the effect of the provision and of subsection (3.1), and
"iii. setting out the facts on which the opinion is based.
"List of provisions
"(2) The provisions referred to in subsection (1) are:
"1. A provision that authorizes the attorney and other persons under the direction of the attorney to use force that is necessary and reasonable in the circumstances,
"i. to determine whether the grantor is incapable of making a decision to which the Health Care Consent Act, 1995 applies,
"ii. to confirm, in accordance with subsection 49(2), whether the grantor is incapable of personal care, if the power of attorney contains a condition described in clause 49(1)(b), or
"iii. to obtain an assessment of the grantor's capacity by an assessor in any other circumstances described in the power of attorney.
"2. A provision that authorizes the attorney and other persons under the direction of the attorney to use force that is necessary and reasonable in the circumstances to take the grantor to any place for care or treatment, to admit the grantor to that place and to detain and restrain the grantor in that place during the care or treatment.
"3. A provision that waives the grantor's right to apply to the Consent and Capacity Board under sections 30, 48 and 63 of the Health Care Consent Act, 1995 for a review of a finding of incapacity that applies a decision to which that act applies.
"Conditions and restrictions
"(3) A provision described in subsection (2) that is contained in a power of attorney for personal care is subject to any conditions and restrictions contained in the power of attorney that are consistent with this act.
"Revocation
"(3.1) If a provision described in subsection (2) is contained in a power of attorney for personal care and both of the circumstances described in subsection (1) exist, the power of attorney may be revoked only if, within 30 days before the revocation is executed, an assessor performed an assessment of the grantor's capacity and made a statement in the prescribed form,
"(a) indicating that, on a date specified in the statement, the assessor performed an assessment of the grantor's capacity;
"(b) stating the assessor's opinion that, at the time of the assessment, the grantor was capable of personal care; and
"(c) setting out the facts on which the opinion is based."
Mrs Caplan: We had a gentleman come before the committee who said he was concerned that the Ulysses contract would not allow him to say: "Listen to my wife. Don't listen to me. She knows when I'm sick. I'm a very good actor. I can fool the best of them." Will this respond to his concern?
Mr Tilson: We believe so, Mrs Caplan. I do recall him coming to this committee; I think that was in the first week. This response to the Ontario Friends of Schizophrenics, of Robert Walsh, Advocacy Centre for the Elderly, that wants the grantor of this special kind of attorney to tailor their needs to this document, to suit their needs -- we believe that individual's concerns will be satisfied.
Mrs Caplan: I'd ask, Mr Chairman, that you ask the clerk to send them a copy of the Hansard that has this in it, I appreciate that and we'll be supporting it.
The Vice-Chair: Thank you, Mrs Caplan. Seeing no further discussion, all those in favour of the amendment? Carried.
The next amendment to section 32 is a government amendment. Mr Tilson.
Mr Tilson: I move that clause 32(2)(b) of the bill be struck out and the following substituted:
"(b) both of the circumstances described in subsection 50(1) of the act, as re-enacted by subsection (1), shall be deemed to exist in respect of each provision."
The Vice-Chair: Any discussion? All those in favour? Carried.
Shall section 32, as amended, carry? Carried.
Section 33, government amendment, Mr Tilson.
Mr Tilson: I move that clause 52(d) of the Substitute Decisions Act, 1995, as set out in subsection 33(1) of the bill, be struck out and the following substituted:
"(d) unless the power of attorney provides otherwise, the grantor's spouse or partner and the relatives of the grantor who are known to the attorney and reside in Ontario, if the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act."
The Vice-Chair: Discussion? Seeing none, all those in favour? Carried.
The next amendment, Mr Tilson.
Mr Tilson: I move that section 33 of the bill be amended by adding the following subsection:
"(1.1) Section 52 of the act is amended by adding the following subsection:
"Exception
"(1.1) Clause (1)(d) does not require a copy of the resignation to be delivered to,
"(a) the grantor's spouse, if the grantor and the spouse are living separate and apart within the meaning of the Divorce Act (Canada); or
"(b) a relative of the grantor, if the grantor and the relative are related only by marriage and the grantor and his or her spouse are living separate and apart within the meaning of the Divorce Act (Canada)."
The Vice-Chair: All in favour? Carried.
Shall section 33, as amended, carry? Carried.
Section 34, Mr Tilson.
Mr Tilson: I move that subsection 34(2) of the bill be struck out and the following substituted:
"(2) Clause 53(1)(c) of the act is repealed and the following substituted:
"(c) when the grantor executes a new power of attorney for personal care, unless the grantor provides that there shall be multiple powers of attorney for personal care;"
The Vice-Chair: Any discussion? All those in favour? Carried.
Shall section 34, as amended, and section 35 carry? Carried.
Section 36, Liberal amendment, Mrs Caplan.
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Mrs Caplan: Are you going to accept this, Mr Tilson? It's the same as the other one.
I move that subsection 57(2.1) of the Substitute Decisions Act, 1992, as set out in subsection 36(3) of the bill, be struck out.
This is a conflict-of-interest provision that says that somebody who is in a compensation relationship cannot be a guardian. You accepted the last one. I'm assuming this is the same and you'll accept this as well.
Interjection.
Mrs Caplan: Did I skip 31a? I did it again. I'll just check. Can you show me the copy of it, Donna? I wanted to do this one first. I want to do this instead to see if they'll accept it. Number 31 is the one I read into the record. I have an alternative if that's not acceptable, but since you accepted the last one, I thought you'd accept --
Mr Tilson: Mr Chairman, to Mrs Caplan --
Mrs Caplan: Oh, we'll accept yours. It's your motion. I read yours in.
Mr Tilson: This has to do with personal care, and we are not agreeing with respect to the issue as to personal care. We agreed with the issue with respect to property. So whatever motion you're doing with respect to personal care, whichever one you want to choose, we disagree.
Mrs Caplan: I read yours into the record in error, so I don't think you want to speak against your own motion.
Mr Tilson: Keep up the good work.
Mrs Caplan: Mine is on 31a, subsections 36(1) and (2) of the bill.
I move that subsections 36(1) and (2) of the bill be struck out and the following substituted:
"(1) Subsection 57(1) of the act is repealed and the following substituted:
"Who may not be appointed as guardian
"(1) The following persons shall not be appointed as an incapable person's guardian of the person under section 55:
"1. A person who provides health care or residential, social, training or support services to the incapable person for compensation.
"2. A director, officer, employee or agent of a person described in paragraph 1."
The concern we have as I speak to this one is as follows. If you have a financial interest in the person you are caring for, you should not also be able to be the guardian of their personal care. There is a direct conflict of interest for someone who operates the nursing home, for example, to be your guardian. I'd much rather have the office of the public guardian and trustee, if that's the only and last resort, than to have the nursing home operator have total control of your life, total control of all the decisions that are made about your personal care. We think it's inappropriate that someone who is in a compensation relationship with you should be able to be your guardian as well as having the relationship where they are being paid either by you personally or by someone else to look after you.
It's a choice here. There's no one else, there's no family, there are no friends, there are no relatives, there's nobody; whom do you choose? Do you want the nursing home operator or the public guardian and trustee? I have to tell you, as much as I don't like the public guardian and trustee, I at least think they wouldn't have a conflict in making decisions and directing the nursing home or the long-term-care operator. It's not that I'm saying the nursing home operators are bad. I don't. I just think it places them in an untenable position and that we can avoid that by excluding them from being able to be in that difficult situation of having a guardianship, which is total control of someone's life for personal decisions, at the same time as they're getting paid to look after the person.
Mrs Boyd: To carry those out.
Mrs Caplan: To carry those out, yes. It's like you talk to yourself. You look in the mirror and you say: "So, what do I think I should do for the person whose life I control today? Oh, okay, you think I should do that?" You're talking to yourself. That's just wrong.
Mrs Boyd: We agree absolutely. If anything, this is even more important than the guardianship of property. Property is property. It's serious, everybody takes it seriously, I think, but it's not nearly as serious as somebody's life.
If we read the Lightman report and hear about what goes on in unregulated areas, this is exactly the kind of thing that people fear, and they came in front of us saying that they feared this. Homes for special care is a similar kind of thing. The stories around the abuse of people in these circumstances are legion. This committee received the reports around abuse in institutions in particular. Many people on this committee questioned whether or not we were being paranoid in saying that this was a reality. I think the researcher provided us with ample evidence that this is a problem.
If the person is totally under the control of someone who runs an operation, someone who is paid to exercise care over that person, it is a very serious conflict of interest. It puts people in complete jeopardy. Quite frankly, I would hate to imagine what will eventually unfold in the future in terms of reports of abuses of this section. It is very serious. It is a conflict of interest.
I would urge the government to support this amendment because it is absolutely essential that those who are incapable know that the government is not giving a licence to someone who is compensated for looking after them to make the decisions about how that care is going to be done in that way.
Mr Marchese: For the record, I just wanted to point out that there were a number of groups that had spoken to this. I wanted to support my colleague and Mrs Caplan as well in terms of their remarks by reading into the record what they've said.
One organization says, "The current prohibition against service providers acting as guardians should be retained." Three other organizations say, "Allowing caregivers to act as guardians for personal care could create a conflict of interest." "Where there is no other suitable person, the PGT should be appointed to act as a guardian rather than a service provider." That's one other organization. Another organization has said: "Section 57(1) of the SDA should remain unamended. A paid caregiver should not be permitted to become a guardian of a person or property." So there is a sufficient number of people who are very worried about this.
My colleague has made the point, "Well, you dealt with the issue of property." The issue of care is no less important. In fact, Mrs Boyd said that we're dealing with a person's personal and mental needs, which are as important if not more important than property. So we certainly support this amendment.
Mr Tilson: I can honestly say all of the issues with respect to substitute decisions have given our caucus the greatest amount of discussion. We spent a great deal of time on this among ourselves. The issue of conflict is a really tough issue. One could look at the issue of children. Children could conceivably have a conflict, particularly if they're looking after something they may feel is going to be theirs down the line. I'm not talking about who's bad and who isn't bad.
Mrs Boyd: That's what we've been saying all along.
Mr Tilson: The conflicts could go on and on. I recognize the issue of conflict. It's a tough issue. As Mr Marchese indicated, we've already eliminated the possibility of paid service providers acting as a guardian of property, subject to the exception for relatives which is already in the act. That removes the concerns we have of conflict, because the issue of money is what generates the most prominent issue of conflict, money and the issue of resources.
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What we are trying to recognize here is that there may be a few cases -- and I'm going to say something which I know is going to get my NDP friends all upset.
Mr Marchese: Then don't say it.
Mr Tilson: Well, I enjoy getting you upset.
Interjection.
Mr Tilson: I'm not trying to make this a light issue, Mrs Boyd. This is a very serious issue. The issue of faradaic stimulation, for example, is an outright ban which you put forward. Without getting into all that again, and I don't want to get into that again --
Mrs Boyd: Then you shouldn't have mentioned it.
Mr Tilson: But it's an example of the risk of making outright prohibitions. Where a person is paid and is still around, that may be the most trusted person available -- there may not be anyone else -- and therefore the best person to be the guardian.
There's the example of a homemaker or someone who stays in a home with an individual who is paid and maybe trusted, and that does happen. They actually live in the home with someone for years and years and years. Many of us have had it in our own families. I know of many examples, particularly in small towns. They may be the best people available, even though they're being paid. That's why we're most reluctant to make an outright ban.
Mr Marchese asked me a question early in the proceedings on this issue, about service providers, and I commented at that stage about the court making the decision. All of this, you must remember, has to be approved by the court. I'm looking at section 36 on page 21: The court must be satisfied that "there is no other suitable person" -- suitable person -- "who is available and willing to be appointed." I'm going to repeat the comments I made to Mr Marchese's question in the first week, that we believe the courts can assess this in deciding suitability.
I've just been referred to a delegation that came before us, the Brantford and District Association of Community Living. Mrs Moore said:
"I'd like to make several comments actually, but I'll start with that one. As a parent, I wouldn't feel that there was a conflict of interest, and if there was, it would be to my daughter's advantage to have someone who worked for the association or who was employed by the association be the substitute decision-maker. I think that's basically what we're looking for, rather than someone out there in the community who knows nothing about our sons or our daughters or how they function."
There are those rare situations, and this amendment would cut off those rare situations. One final comment, Mr Chair; I know I've gone on perhaps unduly long. You must also remember that the public guardian and trustee does get served with all applications, so in addition to the court reviewing it, you've got the public guardian and trustee reviewing this. You've got the courts and the public guardian and trustee. I think that adequately explains why the government will be opposed to that proposal of Mrs Caplan.
Mrs Caplan: I'm not going to go on at any length. I just want to go on the record as saying I think there's tremendous potential for abuse. If there are cases that come forward, this simple change in the law could avoid those. If you wanted to amend this so that you were in a fee-for-service relationship, or exempt the kind of service associations you've identified, there might be some common ground there, where it was an organization that didn't have a financial interest because they weren't being paid directly. I think they would be exempted from this, because it refers to a compensation relationship, and an organization like the Canadian Mental Health Association or a local chapter may provide some service, but they're not in a compensation relationship directly with the individual. If the wording isn't clear enough to allow for that case, I'd be happy to have you stand it down and look at how to do that.
The concern I have is that this legislation is in place to deal with those difficult, vulnerable, exceptional circumstances, and to leave the door open for this kind of conflict of interest and potential abuse I think is misguided. You can close that loophole, because there is another alternative. It's not as though this is the last resort. This isn't. The last resort is the office of the public guardian. If you didn't have the office of the public guardian, you could struggle with, what are you going to do if there's nobody else, no one else who's suitable? But there is someplace else and someone else who is suitable, because the public guardian and trustee actually requires a plan to be carried out; they can give direction.
While it may not be the most desirable thing to have the public guardian, I think it is more desirable than having someone who has a direct financial interest in the person over whom they have total control in making personal care decisions. I don't see that we can't deal with those exceptions, those few exceptions, without opening up others to that kind of potential abuse because of that conflict you are permitting in this legislation. This legislation permits people with a direct conflict of interest because of their financial interest, the fact that they are being compensated for the service they provide.
That's all I have to say. I think you've made the wrong decision. I feel very strongly about this and I'm sorry I can't convince you, but when something happens, you will be responsible.
The Vice-Chair: Seeing no other speakers, shall the amendment carry?
Mrs Boyd: Recorded vote, please.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître, Marchese.
NAYS
Doyle, Johns, Klees, Leadston, Parker, Tilson.
The Vice-Chair: That amendment is defeated.
With respect to the order of the amendments, it would appear to make sense to bring page 34a forward at this point, so we'll deal with that one now.
Mrs Boyd: This is actually a companion to the motion we stood down on section 14.
I move that section 36 of the bill be amended by adding the following subsection:
"(2.1) Paragraph 1 of subsection 57(2) of the act is repealed."
The force of this would be that if someone is named as a guardian of property, they could not also be the guardian of person, and vice versa if you take the companion. In this one it means the person could not be both guardians if they were in a compensation situation.
Mr Tilson: We don't believe it's necessary, considering our amendments to section 24.
The Vice-Chair: Seeing no further discussion, all those in favour of the amendment? Opposed? The amendment is defeated.
The next amendment will be a Liberal amendment, page 32 in your binder.
Mrs Caplan: What happened to page 31? Did he ever read it in and pass it?
Clerk of the Committee: Yes. The amendment on page 31 was a government motion, and that was moved and carried.
The Vice-Chair: We're now on page 32, the Liberal amendment.
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Mrs Caplan: I think it's redundant. It would accomplish the some thing we've just been arguing and debating around conflict of interest. It would strike out the new clause and it would put back what has been in place, which would not permit that conflict. The reason we had the amendment before it was that we tried to modify that somewhat. Unless the government's changed it's mind in the last minute and a half, I'll withdraw it.
Mr Tilson: I don't think so, Mrs Caplan.
The Vice-Chair: So that is not moved, then? On to 32a, the alternative Liberal amendment.
Mrs Caplan: That one I will place, because this is where we've tried again to do it a little differently. Let me put it in this context.
I move that subsection 57(2.1) of the Substitute Decisions Act, 1992, as set out in subsection 36(3) of the bill, be struck out and the following substituted:
"Same
"(2.1) Subsection (1) does not apply to a person if,
"(a) The compensation received by the person for providing the health care or the service is not received from the incapable person;
"(b) The person does not provide a residence to the incapable person;
"(c) The person does not administer controlled acts within the meaning of section 27 of the Regulated Health Professions Act, 1991, to an incapable person; and
"(d) The court is satisfied that there is no other suitable person who is available and willing to be appointed."
Rather than a broad prohibition against anyone in a compensation relationship, this one says -- I'm going to go through them, (a), (b), (c), (d). You see, (a) would allow the Canadian Mental Health Association or any local advocate group that isn't receiving compensation from the incapable person to provide the service. In other words, if government's paying on your behalf, you can be a guardian. You're not being paid directly by the individual, so there's no coercion possible.
(b) The person doesn't provide a residence; that would say nursing home, home for the aged. In fact, that was the reason, Mr Tilson, that I wanted the Domiciliary Housing Review as well as being able to look at what those implications are from a report, because you could have a situation where someone is providing a residence -- and we know there have been myriad abuses, and we have a study provided to us on the study of abuse of patients in nursing homes.
Mr Tilson: We're still trying to get it.
Mrs Caplan: That was one of the reasons I wanted this. I believe that if you are in a position where the person is under your control and you're being paid to provide a home, you're getting rent -- in the form of an unregulated boarding house, for example -- you should not be in the position of being named the guardian for personal care as well.
Where it says "administer controlled acts", that would mean that professionals under the Regulated Health Professions Act should not be able to be named because they're providing the care directly.
However, it says the court can override all of that if they're satisfied that there is no other possible person. That's where the court is satisfied that there's no other suitable person who is available and willing to be appointed. I'm hoping you'll support this one.
Mrs Boyd: I'm not sure Mrs Caplan is right that the court would override, because her word at the end of section (c) is "and" rather than "or." It would have to be "or" if the court could override any of these particular circumstances. If that's what you mean, that the court could overrule it, you do want the word "or"; you don't want the word "and."
Mrs Caplan: If I may, Mr Chair, it should be amended to read "or" as opposed to "and." It would then give the direction to the court that says none of these people should be considered suitable "unless." Thank you, Mrs Boyd. In speaking to this, what you've said is that the court takes these things into consideration.
The Vice-Chair: Sorry, but technically you have to change the word and re-read it into the record. Just that clause will be fine.
Mrs Caplan: "(c) the person does not administer controlled acts within the meaning of section 27 of the Regulated Health Professions Act, 1991, to the incapable person; or
"(d) the court is satisfied that there is no other suitable person who is available and willing to be appointed."
The intention of this is to give direction to the court. It says by law, "We don't think any of these people are suitable, and be really careful before you appoint any of them, but okay, if there is the exception," the one in a thousand or hopefully fewer than one in a thousand exception, the court can make that decision. We'd feel more comfortable if the court knew how strongly the Legislature felt about restricting people in these categories from having guardianship for personal care when they are in a conflict situation.
Mr Tilson: We can't accept this. I can understand what you're trying to do. You've listed some exceptions, but we don't think it's possible to list all the exceptions, and ultimately, a court's going to have to look at this thing. We believe that because it's impossible to list all the exceptions, only the court can do that. I'm not going to go any further because I'm going to start repeating what I've said before. We simply think it's impossible for you to list all those exceptions.
Mrs Boyd: I think the purpose of Mrs Caplan's amendment is not to list all the possible exceptions but to list the three most serious ones as a direction to the court. These are serious conflict-of-interest situations. There may be others, but these ones are serious. We are saying, by having that in the act, that we would not allow this under these circumstances except if the court deems it appropriate. That's why the wording of "and" or "or" was so important.
It means the court still makes the decision. The court can still allow under any of these circumstances, but it alerts the court that under anything but the most unusual circumstances the Legislature did not contemplate that these people would be named as guardians of personal care.
If we are to believe the explanation that was given by the parliamentary assistant in defeating the previous amendment to this effect, that we don't need it because the courts decide, this still applies, the courts will still decide, but the court will know that the Legislature was concerned about conflict of interest, was concerned about vulnerable people. If the government again defeats this motion, it will be just another way for vulnerable people to know that for all their fine words, they really are not concerned with protecting them from people who might act in conflict of interest. The court still has the authority here, but the court is alerted that the Legislature's intention was to protect vulnerable people. If that's not the government's intention, they will defeat this motion.
Mr Tilson: I can only remind Mrs Boyd, the former Attorney General, that until April 3, 1995, under the Substitute Decisions Act, there was no limit, no limit at all.
Finally, I'm going to repeat the section I read earlier, section 36, that there will be no appointment "if the court is satisfied that there is no other suitable" -- and the court will define who is suitable, because there may be all kinds of determinations the court would have to take as to who is and who isn't suitable -- "if the court is satisfied that there is no other suitable person who is available and willing to be appointed."
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Mrs Boyd: Mr Tilson, of course, can't resist taking shots. He knows very well that from the day our government was elected, this was a major concern of ours. We passed the act in 1992. We gave time for people to understand what it meant and the education around it so things could be put into place, and in fact we did enact it, and one of the things we enacted was protection against people from being taken advantage of exactly in this way.
Now, if the government is saying they think that isn't sensitive enough to very special cases, we are saying, here is your way of showing that's what you want to do, that you want to protect vulnerable people. This is the way you can do it; the court still decides.
But to say it's inappropriate for the Legislature to give direction to the court about what it thinks is suitable or not is absolute nonsense. Legislation does that all the time for the courts, particularly when it's protecting vulnerable people, if you think of the Child and Family Services Act, for example. It is absolute nonsense for him to suggest that the court would not welcome some guidance, frankly, around who might be suitable and who might not. They still might decide that the person was the only person available, and that is up to the court, but for the Legislature to give guidance around the protection of vulnerable people is not at all unsuitable. I'm very surprised that the member is continuing to oppose this amendment.
The Vice-Chair: Seeing no further speakers, shall the amendment carry?
Mrs Caplan: Recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Marchese.
NAYS
Doyle, Johns, Klees, Leadston, Parker, Tilson.
The Vice-Chair: That amendment is defeated. Still in section 36, the next amendment is an NDP amendment.
Mrs Boyd: I don't think it's in order, given what we've talked about, Mr Chair. It is in order?
The Vice-Chair: It is in order, yes.
Mrs Boyd: Okay. I move that subsection 57(2.1) of the Substitute Decisions Act, 1992, as set out in subsection 36(3) of the bill, be struck out.
Mrs Caplan: I agree with Mrs Boyd. I don't think it's in order.
The Vice-Chair: All those in favour? Opposed? Defeated.
The final amendment to section 36, again an NDP amendment.
Mrs Boyd: This definitely isn't in order, is it? I'm sorry. These are all redundant. We've already dealt with this.
The Vice-Chair: No, it is in order.
Mrs Boyd: Okay. I move that subsection 36(3) of the bill be amended by adding the following subsection to section 57 of the Substitute Decisions Act, 1992:
"Same
"(2.1.1) Subsection (2.1) does not apply if the person described in subsection (1) is the incapable person's guardian of property."
The Vice-Chair: Any discussion? All those in favour? Opposed? The amendment's defeated.
Shall sections 36, 37, 38 and 39 carry? Carried.
Section 40, a Liberal amendment.
Mrs Caplan: I move that subsection 62(7) of the Substitute Decisions Act, 1992, as set out in subsection 40(4) of the bill, be amended by striking out "90" in the second line and substituting "30."
I think it's self-explanatory. I hope the government will support it. We heard from numerous presenters that 90 days was too long, that it should be 30 days. We think this would respond to all the concerns raised, and I'm waiting for a signal that says, "We accept this amendment." We don't? Then I'll speak to it.
I'm disappointed to hear that the government is not going to be supporting this amendment. This is the duration of an appointment, the appointment of a statutory guardian. We think that when this is done, before there is a review it should be 30 days, that that's long enough when you're doing an application for statutory guardianship. I'd like to know from the parliamentary assistant why you are rejecting the advice of all those who came forward and said 30 days, not 90 days. That's a long time for someone to have all their rights taken away from them.
Mr Tilson: We believe it's up to the courts, that they need that discretion. The courts had expressed concerns about the seven-day limit on temporary guardianship, and we simply don't think that making it 30 days really answers their concerns. The maximum of 90 days is a maximum. The courts, in their discretion, and they do have that discretion, can make it less. The 90-day period is consistent with the maximum time period allowed of a temporary guardianship of property. The issue of notice is really not relevant, because section 62 of the Substitute Decisions Act is amended by section 40 of the bill, which requires to make as soon as possible because of urgency, and it was dispensed with.
Mrs Boyd: We did hear from a number of people real concern about this, that guardianship of the person is different from guardianship of property, that 90 days is a very long time for someone to be under the complete power of someone else. We certainly heard from the Psychiatric Patient Advocate Office, ACE, LAW, that indeed this was very excessive and quite frightening to people who might be deemed to be incapable.
Mrs Caplan: The existing law is seven days. We accept and understand that the seven days is a problem, but instead of saying four times seven days, which is the 30 days -- that's four times as long as the law presently allows now -- you're going to 90 days on the basis of consistency with control over property. I would argue that control over property is very different from control over a person's person. There's no rationale to go from seven days to 90 days. I think it's reasonable. It's very frightening for people to be put into statutory guardianship, and 30 days should respond to the court's concern that seven days is inadequate. To give them the discretion to go to 90 days -- and while you say that's the maximum, let me tell you, you've got to be very careful in the directions you give. When you say maximum 90 days, you're saying 90 days is okay. I don't think 90 days is okay. In fact, I'm sure 90 days is not okay for a temporary statutory guardianship, which today only allows seven days. There's no need to go that far. Four times as long, one month, 30 days, is a reasonable accommodation of the court's concern before a review. I'd ask you to reconsider that, because it is very different: Control of the person and control of their property are very different notions.
Mr Tilson: Without getting into extensive repetition, Mr Chairman, I can only say that the courts have extensive experience in this whole issue. We have confidence in the judicial system, and we believe they should be allowed that discretion. Certain circumstances may require one period of time, and another another, and the court should be allowed that flexibility to make those types of decisions.
The Vice-Chair: Seeing no further speakers, shall the amendment carry?
Ayes
Boyd, Caplan, Grandmaître, Marchese.
NAYS
Doyle, Johns, Klees, Leadston, Parker, Tilson.
The Vice-Chair: The amendment is defeated. Shall sections 40, 41 and 42 carry? Carried.
Section 43, a Liberal amendment.
Mrs Caplan: I move that subsection 43(4) of the bill be struck out.
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The Vice-Chair: Any discussion?
Mrs Caplan: Subsection 43(4)-let me just find the spot here so that I can --
Mr Marchese: Page 24 at the bottom.
Mrs Caplan: Page 24 at the bottom. It says, "in deciding what is in the person's best interests...for the purpose of subsection (3), the guardian shall take into consideration," and 43(4) -- just a second.
Mrs Boyd: That's on page 25.
Mrs Caplan: That's what I thought.
Okay, that's what I was looking for. I didn't have my note here.
The part that we think should come out is that "the guardian shall not use confinement or monitoring devices or restrain the person physically or by means of drugs and shall not give consent on the person's behalf to the use of confinement, monitoring devices or use of restraints, unless (a) the practice is essential to prevent serious bodily harm and (b) the practice is consistent with the guardianship plan."
Interjection: What the government's motion does --
Mrs Caplan: -- is takes out --
Interjection: -- clause (b).
Mrs Boyd: The guardianship plan.
Mrs Caplan: Right. I believe the guardianship plan should be in is the point that we're making here, and what I read in, and this is where this legislation gets a little complicated and confusing so I apologize for taking a couple of minutes, but on page 25 your subsection takes out the "and" between the (a) and the (b). The (a) is saying that you can only use restraint and monitoring if it's essential to prevent serious bodily harm, and (b) the practice is consistent with a guardianship plan.
We think that before you use restraints, if you're a guardian, you have to have guardianship plan that gives that authorization. We think that's protection for the vulnerable person, and we don't understand why you removed the coupling "and" between the two. I'd like some clarification from the parliamentary assistant.
The Vice-Chair: We'll get some clarification and then we'll go to Mrs Boyd.
Mr Tilson: This is another one of those sections where we took it out and you're putting it back in. We took "the" out and you're putting it back in. I guess that this is part of the issue with respect to this overall legislation, that in our consultations from day one was that one of the biggest complaints that we found with respect to this type of legislation, although all three parties did support the substitute decisions legislation, but one of the complaints was that things were too bureaucratic. They were too complicated.
We felt, Mrs Caplan, that it was very difficult for the applicant to identify the potential use of restraints before beginning the guardianship. It's very difficult to identify those, and we think that quite frankly there are too many procedural hurdles in the act and we felt this was one of them, and this is why we took it out.
Having to go back to the public guardian and trustee to amend the plan we feel is unreasonable. So for that reason we cannot accept your motion.
Mrs Caplan: As you know, our caucus and our party supported the substitute decision legislation, and we also felt that those things which were overly bureaucratic and overly intrusionary certainly should be streamlined. However, the requirement that a guardianship plan state how restraints are going to used, we think is a protection for vulnerable persons and that you go too far, just as the legislation went too far in many areas previously around bureaucratic intrusion. We don't think that it is bureaucratic to require a guardianship plan to include the intention to restrain someone.
Over the years -- and I'd remind you Mr Tilson and those who've been around for a while the horror stories that have been heard about the abuse in the use of restraints. A guardian has to file a plan, that's a requirement now, so you have that bureaucracy in place. You're not saying you don't have to file a plan; what you're saying is, if you're going to use restraints, the plan doesn't have to include restraints. We don't think it's unreasonable, given the potential for abuse, that a guardianship plan must contain an agreement or an understanding of the intent to use restraints and under what circumstance. We think that's a reasonable protection. We think you go too far when you take it out. And while I hear your argument about streamlining, and I agree with you, in this case this is not streamlining because you already require guardianship plans. If a person's status changes from the time that they are first placed in guardianship to the point where they require restraint, it's not unreasonable to get that approval through the filing of a plan so that the intention is there. It's a little bit of accountability; it's protection for the vulnerable person. And it's not as though all of a sudden you're requiring a new plan; you're just amending a previous plan to say, "Here's the situation." It's some accountability and protection. I hope you'll reconsider.
The Chair: Mrs Boyd, I apologize for not taking it in order.
Mrs Boyd: It's hard when you're switching Chairs, isn't it?
We had many people come in front of us talking about this use of restraints without it being in the guardianship plan as a real concern. Three different local groups of the Canadian Mental Health Association came and talked to us and talked about how serious they thought that was, and the use of restraints, I would remind people, as under 66(10) in the act:
"The guardian shall not use confinement or monitoring devices or restrain the person physically or by means of drugs, and shall not give consent on the person's behalf to the use of confinement, monitoring devices or means of restraint unless,
"(a) the practice is essential to prevent serious bodily harm to the person or to others, or allows the person greater freedom or enjoyment; and
"(b) the practice is consistent with the guardianship plan."
The other groups were Legal Assistance of Windsor; the adult protective services; the Advocacy Centre for the Elderly; the Independent Living Centre. All of these people said to us that the unfettered use of restraints, without it being part of the guardian plan, is not acceptable, that there ought to be a plan, and it is a protection for the vulnerable people, for them to know that if this is not part of a guardianship plan that has already been approved by the public guardian and trustee, they must go back and say: "The circumstances have changed. We have had to change the plan because the person's condition changed and, therefore, we are changing the plan for this reason." There needs to be some way of monitoring and creating some accountability around the issue of restraint.
I would remind the members of the committee, you have read some of the horror stories that the research found for us. Many of you were sceptical about whether abuses really occur in some of these circumstances. We certainly heard you saying that. Maybe now you're convinced that in fact there does need to be a check and balance on the unfettered use of restraint. I would be very, very glad if you would accept the Liberal amendment.
Mrs Johns: I just wanted to remind the committee that there are some accountability measures on restraints in the Nursing Homes Act and the old age act, I believe. It says that there has to be doctor's approval of it, that there has to be monitoring every 12 hours. There's a number of criteria which talked about the use of restraints and how the restraints can be imposed in other acts.
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Mrs Boyd: That may be true. It does not have any effect in home care, which is one of the most serious concerns that I have as we move more and more toward home care. The guardian of the person could well be the caregiver now that we've allowed caregivers to be the guardian of the person, and this is a really serious issue. You don't seem to get the picture here around how vulnerable people are to abuse in these circumstances. They are helpless; that's why they've been declared incapable. They have no way of escaping what is going on, they have no legal means and they have no physical means in most cases. The reality is that it is very tempting, when you are looking after someone, to restrain them, out of the very good reason that you think they'll be safer that way. And the real problem is that needs to be part of a plan of guardianship so that there is a check and balance on that.
The Nursing Homes Act and the Charitable Homes Act, and all of those things, do not deal with what happens to a person in their home when they are being cared for by a family member, or by a private caregiver. You have now given the possibility for that private caregiver to have the guardianship of the person. This is a minimal, please, a minimal protection for those people. I really urge you to understand how important it is.
The Chair: Thank you, Mrs Boyd. Mr Marchese?
Mr Marchese: No, my colleague has said it all.
The Chair: Those in favour of the motion?
Mr Marchese: Recorded.
Ayes
Boyd, Grandmaître, Marchese.
Nays
Doyle, Guzzo, Johns, Klees, Parker, Tilson.
The Chair: The amendment is defeated. Shall section 43 pass, unamended? Carried.
Shall sections 44 to 52, inclusive, pass? Agreed.
Moving on to section 53, Mrs Boyd.
Mrs Boyd: I move that section 53 of the bill be amended by adding the following section to the Substitute Decisions Act, 1992:
"Register
"77.1(1) The public guardian and trustee shall establish and maintain a register of,
"(a) guardians of property;
"(b) guardians of the person;
"(c) attorneys under continuing powers of attorney; and
"(d) attorneys under powers of attorney for personal care.
"File to be opened in register
"(2) The public guardian and trustee shall open a file relating to a person and shall incorporate the file in the register when the first of the following events occurs:
"1. The public guardian and trustee becomes the person's statutory guardian of property.
"2. The court appoints someone as the person's guardian of property or guardian of the person.
"3. The person advises the public guardian and trustee that he/she has executed a continuing power of attorney or power of attorney for personal care and wishes the power of attorney to be recorded on the register.
"Contents of file
"(3) A file in the register relating to a person shall contain the following information that is in the possession of the public guardian and trustee:
"1. The name and address of the person.
"2. The name, address and telephone number of the person's,
"i. guardian of property, if any,
"ii. guardian of the person, if any,
"iii. attorney under a continuing power of attorney, if any,
"iv. attorney under a power of attorney for personal care, if any.
"3. For each person referred to in subparagraphs i to iv of paragraph 2, information concerning,
"i. how the person acquired his or her authority,
"ii. the nature and extent of the person's authority, and
"iii. the date that the person's authority took effect, terminated, or changed.
"Updating of register
"(4) The public guardian and trustee shall update the information contained in the register whenever he or she receives new information referred to in subsection (3).
"Access to register
"(5) The public guardian and trustee shall, in accordance with the regulations, provide information contained in the register under subsection (3) to a person who, by telephone or otherwise, requests the information."
The reason for this was brought to us by many of the health professionals, particularly those in emergency departments, whose real concern about all of this issue around substitute decision-making was how they are supposed to know someone has a continuing power of attorney for personal care.
But it is probably equally important in terms of property in some instances, because it would mean that if you had a suspicion that perhaps someone was in a situation where they were attempting to do something with someone's property and didn't have the authority to do it, you'd have a way of checking. It's particularly important in the guardianship issues so that people can easily check to see whether or not someone who purports to be a guardian is a guardian. There's very little way, for example, for a real estate agent necessarily; they might not know that sort of thing.
What we've done in this is to arrange this so that it does not put a great burden on the public guardian and trustee's office to update the information. Our section says very clearly that the updating of the registry is when the public guardian and trustee receives the information, not that they need to go out and get it and they wouldn't be held liable if they hadn't updated it and something had changed, but just that when people do update it, it happens. One would assume that official guardianship issues would not be at stake here; it is the powers of attorney that would be the ones people would register if they were wise and not register if they weren't wise.
We would sincerely hope the government would agree that this would be a very good way of meeting some of the concerns that were raised with us about how we know if a person has a continuing power of attorney for property or for personal care.
The Chair: Mr Tilson, is the government supporting this amendment?
Mr Tilson: No, it's not, Mr Chairman. We have maintained all along, even during the debates on the existing legislation, that we had trouble with the registration system that was put forward by the government. We've maintained from the very outset, even during the last election, that we would be doing away with that.
At present, the Substitute Decisions Act requires the official guardian and public trustee to maintain a register of validated or registered powers of attorney for personal care and all guardianships as a public record. The purpose of this, as I understand it, is to assist third parties to locate designated substitute decision-makers.
This legislation has been criticized on the types of documents which can be registered. It has been criticized as being unnecessarily narrow. For example, there has been some interest expressed in a voluntary registration system allowing people to record their powers of attorney or living wills so information will be accessible in the event of capacity.
As we have promised from the outset, the register provisions are being removed from the statute, so we clearly have a philosophical difference between this government and the NDP government. We have replaced this with a regulation-making authority governing the maintenance of the register because this will allow the necessary flexibility to explore options and make changes where warranted. There are many issues, technology, resources, liability etc, which we believe must be addressed before further steps can be taken.
As of proclamation of the current legislation, it was intended that the present legislation, as it stands now, would be limited to guardianship appointments and we will be looking at other options over time.
Mr Chairman, subject to the request of the committee, I'm going to ask Ms Spinks to elaborate on some of the things that I've said.
The Chair: It's up to you, Mr Tilson. I'm in your hands. We have one hour and 15 minutes to attempt in a best efforts --
Mr Tilson: This is an important issue, Mr Chairman.
The Chair: Fine. I'm just reminding you of the time element. Please proceed.
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Ms Spinks: I'm not sure, and Mrs Boyd can clarify this for me, whether or not it's the placing of this in regulations that causes you concern, that perhaps there will not be a register. Is this your concern?
Mrs Boyd: Exactly.
Ms Spinks: It certainly isn't the intention of that change to do away with a register. In fact, what happened during the implementation of the Substitute Decisions Act, as I think you pointed out, was that there was interest expressed in having the register serve a wider purpose than it does now, and I think the government is interested in looking at that as the previous government was interested in looking at that as well.
But having discussed with -- for example, the province of British Columbia is currently looking at the issue of the creation of a register for powers of attorney and there are numerous complications that need to be settled before going ahead with that, which is why the regulations will allow that to be done over time, but that wouldn't be the case if it was placed in the statute immediately, because there are concerns. BC has run into a lot of issues around liability of the party holding the information, what it is you give out, how you give it out, how it's accessed, how health practitioners get it on a 24-hour-a-day, seven-day-a-week basis and numerous other things of that nature that need to be explored, how the documents get verified. When it's registered, is it saying it's a valid document, which may not be the case? It could be forged. It could have been made with lack of capacity.
There are a lot of issues to consider, which is why it's being done through regulation, but the intent upon proclamation of this would be that what's there now would continue, at least for the interim.
Mrs Boyd: I wonder if we could have that repeated into the record. What is there now will be continued until the new regulation is put in place, even though there's no legislative authority to do it now?
Ms Spinks: There is regulation-making authority to create the register, and those regulations, it's proposed, will basically contain what is currently in section 78 of the statute, subject of course to validated powers of attorney not being there because they're not applicable any more, in order that over time the issue of enlarging it can be explored.
Mrs Boyd: Both counsel and the parliamentary assistant are well aware that the other option for them to maintain their flexibility would be not to proclaim this section until they had ironed out all those problems, proclaim the rest of the bill and not proclaim this section, and then it would be a requirement in the legislation rather than simply being regulation-making power.
Our concern, as it is with all these other regulation situations, is that regulations are made by the government in power, whoever that may be, over time, and can be changed at will by the government in power, often are changed to deal with resource issues as opposed to issues around protection of the public, and I really urge the government to change its mind.
The Chair: Thank you, Mrs Boyd. Shall the amendment carry? Oh, sorry, Mr Brown.
Mr Michael Brown: I just want to be clear. What you're talking about is that the reason you do not want to accept Mrs Boyd's amendment is the fact that you are looking at ways to expand the information provided and not delete information, and that is your undertaking to us today?
Ms Spinks: Correct.
Mr Michael Brown: We will not be supporting the NDP motion on that basis, as long as that's the understanding, because --
Mrs Boyd: Your faith is touching.
Mr Michael Brown: It's more than faith in this case.
The Chair: Shall the amendment pass? Recorded.
Ayes
Boyd, Marchese.
Nays
Michael Brown, Doyle, Grandmaître, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: The motion is defeated. I'd ask whether section 53 passes. Carried.
Section 54, Mr Tilson.
Mr Tilson: I move that section 78 of the Substitute Decisions Act, 1992, as set out in section 54 of the bill, be amended by adding the following subsection:
"Use of prescribed form
"(3.1) An assessor who performs an assessment of a person's capacity shall use the prescribed form in performing the assessment."
The Chair: Agreed? Carried.
Mrs Boyd: I move that section 78 of the Substitute Decisions Act, 1992, as set out in section 54 of the bill, be amended by adding the following subsection:
"Confidentiality
"(5) An assessor shall not disclose any information acquired by the assessor in performing an assessment, except as authorized or required by this act."
The purpose here is to answer the concerns that were raised by people who came in front of us that while there were requirements of others around confidentiality, there were not requirements around assessors, and that it is essential that people be sure their confidential information cannot be released.
Mr Tilson: We will not be supporting this resolution. We don't believe this supports anything. If you look at 90(e.5), this will create rules governing confidentiality. In fact, if you look at a later government motion on page 48, we believe that must be enacted by virtue of that motion, assuming the committee gives support to that motion.
We have committed to consult with the Information and Privacy Commissioner. I might add, we had earlier discussion, in the first week at least when the commissioner came here, and he's indicated to the Attorney General that he's satisfied with the amendment I'm referring to on page 48.
The Chair: Shall the amendment carry?
Ayes
Boyd, Michael Brown, Grandmaître, Marchese.
Nays
Doyle, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: The motion is defeated.
Shall section 54, as amended, pass? Carried.
Shall sections 55, 56, 57 and 58 pass? Carried.
We're moving on to section 59, and Mr Tilson.
Mr Tilson: I move that section 59 of the bill be amended by adding the following subsection:
"(3) Section 89 of the act is amended by adding the following subsection:
"Offence: personal information
"(7) A person who obtains personal information under the authority of a regulation made under subclause 90(1)(e.4)(ii) and who contravenes a regulation made under clause 90(1)(e.5) is guilty of an offence and is liable, on conviction, to a fine not exceeding $10,000."
This is a part of a series of amendments relating to the regulation authority for the disclosure of information. This particular aspect was suggested by the privacy commissioner and enables a breach of this section to be considered as an offence.
Mrs Boyd: I understand that subclause 90(1)(e.4)(ii) does not include assessors, and that was the purpose of our previous motion. If this subclause included assessors, we would not have a concern. Mr Tilson encouraged us all to believe that in fact these regulations would cover confidentiality from assessors. They do not.
Mr Tilson: As indicated, we will have regulations, which the commissioner has been satisfied we will put forward, to satisfy that concern.
The Chair: Mr Brown, the clerk has advised that you must move your amendment, which is on 41a, before we deal with the motion of Mr Tilson. On page 41a, ladies and gentlemen, is an amendment by Mr Brown to the amendment on the floor.
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Mr Michael Brown: I move that the government motion on page 41 be amended by striking out "subclause 90(1)(e.4)(ii) in the second line and substituting "subclause 90(1)(e.4)(i)."
The reason for that is to address the concern that Mrs Boyd has just put forward, and that would be to include assessors in this definition. I really think the reasoning is self-evident, Mr Tilson. One of the things I think you would want to note is that our concern is, you have under your regulation a power, the ability to broaden the class of people that would be qualified to be assessors. Those people would not necessarily be in a regulated health profession and, because of that, we think this is extremely important to put in the legislation.
The Chair: Mr Tilson, does the government support the amendment we're speaking to now?
Mr Tilson: I can only respond that generally they are, and I refer to the Code of Ethics and Standards of Conduct of the capacity assessment office dated June 30, 1995, page 3, which deals with the issue of confidentiality: "Capacity assessors shall (1) keep in confidence any information revealed during the course of an assessment relationship and release it only with the written consent of the person or the person's guardian or attorney, or when ordered to do so by a court or authorized by law; (2) not to be considered to be in breach of this code and standards when reporting an allegation to the public guardian and trustee that a person is incapable of managing property or personal care and that serious adverse effects are occurring or may occur as a result; (3) avoid indiscreet conversations, even with a spouse, friend or family, about persons or requesters even when not named or otherwise identified; (4) obtain written consent from the person or the person's guardian or attorney in the capacity assessment office for any recording or filming of a person's assessment for research, evaluation or evidential purposes and the subsequent use of any such record or film."
So we don't believe that we need to create an offence for assessors. They are professionals, governed by the confidentiality rules at large, which I just read to you, and we believe that under those circumstances that's adequate. I don't think I can add anything further to that, Mr Chairman.
The Chair: If there is no other comment, shall the --
Mr Michael Brown: Mr Chair, we're having some difficulty over here. The education and training of assessors is no longer something that's required. What objection can you possibly have to including them in this section?
Mr Tilson: I don't know why you'd do that, because doctors don't have an offence provision.
Mr Michael Brown: But there's a regulated body.
Mr Tilson: It only creates a different standard, so we really don't think it's necessary.
The Chair: Shall the motion of Mr Brown to amend the motion of Mr Tilson pass?
Ayes
Boyd, Michael Brown, Grandmaître, Marchese.
Nays
Doyle, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: The motion is defeated.
Shall the motion of Mr Tilson, unamended, pass? Carried.
Shall section 59, as amended, pass? Carried.
We are moving to section 60, which is on page 42. Mrs Boyd.
Mrs Boyd: It's withdrawn, sir. It's consequent.
The Chair: Page 42 is withdrawn.
Mr Tilson, you are next.
Mr Tilson: I move that clause 90(e.3) of the Substitute Decisions Act, 1992, as set out in subsection 60(3) of the bill, be struck out and the following substituted:
"(e.3) for the purpose of sections 38 and 39 of the Freedom of Information and Protection of Privacy Act, authorizing the public guardian and trustee or an institution that has responsibilities related to assessments of capacity to collect personal information, directly or indirectly, for a purpose relating to this act;"
This was reviewed with the Information and Privacy Commissioner and he indicated that he was satisfied with this.
The Chair: Is there any comment in regard to the proposed motion? All those in favour of the motion? Carried. Mrs Boyd.
Mrs Boyd: I move that subclause 90(e.4)(i) of the Substitute Decisions Act, 1992, as set out in subsection 60(3) of the bill, is repealed and the following substituted:
"(i) to an assessor, if the information is relevant to an assessment of capacity being performed by the assessor and the disclosure of the information is consented to by,
"(A) the person being assessed, if the person is capable of consenting,
"(B) the guardian of property or guardian of the person of the person being assessed, or the person's attorney under a continuing power of attorney or power of attorney for personal care, if the person is not capable of consenting and has a guardian or attorney, or
"(C) the court, on application, if sub-subclauses (A) and (B) do not apply,"
The purpose of this is to assure that assessors should only be given access to private information that is relevant to the assessment, if they are authorized by the appropriate person: obviously, the person if they're capable; the guardian or power of attorney if not; and the court if none of those apply.
The Chair: Mr Tilson, does the government support this motion?
Mr Tilson: No, Mr Chairman, we're not supporting this motion. We believe that this is overly cumbersome and bureaucratic. It was not required by the Information and Privacy Commissioner, so we'll not be supporting it.
The Chair: If there's no other comment, shall the motion pass?
Ayes
Boyd, Michael Brown, Grandmaître, Marchese.
NAYS
Doyle, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: The motion is defeated.
Proceeding to the government motion regarding 60(3) -- I'm sorry, is that the government or is that Mrs Boyd?
Mrs Boyd: Number 45 is government.
The Chair: Yes, I was right. Mr Tilson.
Mr Tilson: I move that subclause 90(e.4)(ii) of the Substitute Decisions Act, 1992, as set out in subsection 60(3) of the bill, be struck out and the following substituted:
"(ii) to a person who makes a statement in the prescribed form indicating that the person has made or intends to make an application to appoint a guardian of property or guardian of the person, if the information is relevant to the application, or"
This makes it an offence to breach this section. This has been discussed with the Information and Privacy Commissioner and he has indicated that he supports it.
The Chair: Shall this motion carry? Carried.
Mrs Boyd, page 46.
Mrs Boyd: I believe that this motion is then out of order, since we just carried the government motion.
The Chair: It's withdrawn?
Mrs Boyd: Yes.
The Chair: Thank you. Mr Tilson.
Mr Tilson: I think the Liberal motion is the next one. Something happened to it.
The Chair: Yes, there is a Liberal motion inserted here, 46a. I would think that would be out of order at this stage. Mr Brown?
Mr Michael Brown: I was looking at it carefully and would agree.
The Chair: Thank you. Mr Tilson, you have two matters.
Mr Tilson: This is on page 47. I move that clause 90(e.5) of the Substitute Decisions Act, 1992, as set out in subsection 60(3) of the bill, be amended by striking out "use and disclosure" in the first line and substituting "use, disclosure and retention."
This is a technical change and it is being made to satisfy concerns of the Information and Privacy Commissioner.
The Chair: Shall it carry? Carried.
Page 48, Mr Tilson.
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Mr Tilson: I move that section 60 of the bill be amended by adding the following subsection:
"(4) Section 90 of the act is amended by adding the following subsection:
"Regulations under clause (1)(e.4)
"(2) A regulation may not be made under clause (1)(e.4) unless a regulation has been made under clause (1)(e.5)."
I challenge anyone watching this thing to understand what I just said. However, the purpose of this amendment is to prevent any disclosure regulation being made in the absence of a confidentiality regulation.
The Chair: Shall the motion carry? Carried.
Mr Brown, your motion deals with an issue that we have discussed at length. Would you please proceed.
Mr Michael Brown: I move that section 60 of the bill be amended by adding the following subsection:
"(4) Section 90 of the act is amended by adding the following subsection:
"When regulations come into force
"(2) A regulation comes into force on the day that is the later of the day that is four weeks after the day it is published in the Ontario Gazette and the day it would come into force absent this subsection."
The explanation and reason for that amendment has, as you say, been canvassed widely in this committee. That is to say that people have no ability to know what regulations are made. By doing this, it essentially gives the four-week time period for people to see what that regulation is, what effect it might have, and if they have some objection, they at least have some opportunity to bring that forward.
If the law of unintended consequences comes into effect and the government hasn't thoroughly considered something, they have the opportunity to bring it to the government's attention. We think it's just good public policy for the government to let people know what it has done before they require people to do it. I think it's as clear as that. We can see absolutely no reason that the committee would not assent to this.
Mr Marchese: Are you going to change your mind? No? Okay, then.
Mr Tilson: Mr Chairman --
The Chair: Yes, Mr Tilson? I assume you're not in favour of this.
Mr Tilson: No.
The Chair: And we've heard that argument before. We know the reasons.
Mr Tilson: We've heard it for about half an hour before.
Mr Marchese: And you're going to add to that.
Mr Tilson: No.
The Chair: Okay, those in favour of the amendment? Recorded?
Ayes
Boyd, Michael Brown, Marchese.
NAYS
Doyle, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: That's the completion of the amendments. Shall section 60, as amended, pass? Carried.
Sixty-one, Mr Tilson.
Clerk of the Committee: Section 61, page 50.
Mr Tilson: I've run out of paper. There was a motion that was set down by the NDP, I think.
The Chair: I meant section 61, sorry.
Mrs Boyd: No, section 61 is the charitable institutions. We're going back to the consequent amendments. I think we need to go back to section 14 of the Substitute Decisions Act for the section that was set down.
Interjection: What page?
Mrs Boyd: It was page 20, replacement.
The Chair: Is there unanimous consent to vary the order of business?
Mrs Johns: Unanimous consent.
Clerk of the Committee: You'll need unanimous consent to go back. What we can do is postpone the section and then, when we go back to the postponed sections, take them in order.
Mr Tilson: Mr Chair, on a point of order: To be fair, this was set down by the NDP; we agreed to that. Perhaps it would be appropriate to deal with that now.
Mr Marchese: Yes. Let's just do it, as long as we agree.
Mrs Boyd: Could we deal with it so that substitute decisions is finished?
The Chair: Okay. What are we dealing with, Mrs Boyd?
Mrs Boyd: I move that section 14 of the bill be amended by adding the following subsection:
"(2.1) Paragraph 1 of subsection 24(2) of the act is repealed."
That means that --
Mr Tilson: Agreed.
Mrs Boyd: Could we tell people what it means? This is the issue around the person being guardian of property and also being guardian of care. We agreed.
The Chair: Thank you. Could you withdraw the previous motion and on page 20?
Mrs Boyd: I withdraw the previous motion.
The Chair: Mr Tilson.
Mrs Johns: Are we on section 61, page 50?
The Chair: Page 20, I thought.
Mrs Boyd: We did page 20. Unanimity, Mr Chair; you're not used to seeing it.
Mr Tilson: It's been a long day, Mr Chairman.
Clerk of the Committee: We're on section 14 right now. We need section 14.
The Chair: The amendment carried on section 14.
Shall section 14, as amended, carry? Carried.
Now we're back to page 50, are we, section 61?
Mrs Johns: I move that the definition of "substitute decision-maker" in section 1 of the Charitable Institutions Act, as set out in subsection 61(1) of the bill, be struck out and the following substituted:
"`substitute decision-maker,' in relation to a resident of an approved charitable home for the aged, means,
"(a) the person who would be authorized under the Health Care Consent Act, 1995, to give or refuse consent to a treatment on behalf of the resident if the resident were incapable with respect to the treatment under that act, or
"(b) the person who would be authorized under the Health Care Consent Act, 1995, to make a decision concerning a personal assistance service on behalf of the resident if the resident were incapable with respect to the personal assistance service under that act."
What we're doing here is we're recognizing that in some instances the involvement of both types of substitutes is necessary. This was suggested by the Advocacy Centre for the Elderly.
The Chair: Shall this amendment pass? It's carried.
Mrs Johns: On page 51, I move that clause 9.15(d) of the Charitable Institutions Act, as set out in subsection 61(2) of the bill, be struck out and the following substituted:
"(d) an opportunity to participate fully in the development and revision of the resident's plan of care is provided to,
"(i) the resident,
"(ii) if the resident is mentally incapable, his or her substitute decision-maker described in clause (a) of the definition of `substitute decision-maker' in section 1 and, unless it is the same person, his or her substitute decision-maker described in clause (b) of the definition of `substitute decision-maker' in section 1, and
"(iii) such other person as the persons mentioned in subclauses (i) and (ii) may direct; and"
We're recognizing here that plans of care may involve either treatment or personal assistance services.
The Chair: Any comments on the proposed amendment? Shall this amendment pass? Carried.
Mrs Johns: Page 52. I move that subsection 9.17(1.1) of the Charitable Institutions Act, as set out in subsection 61(5) of the bill, be struck out and the following substituted:
"Same
"(1.1) The notice must be given to,
"(a) each resident of the approved charitable home for the aged;
"(b) if the resident is mentally incapable, his or her substitute decision-maker described in clause (a) of the definition of `substitute decision-maker' in section 1 and, unless it is the same person, his or her substitute decision-maker described in clause (b) of the definition of `substitute decision-maker' in section 1, and
"(c) such other person as the persons mentioned in clauses (a) and (b) may direct."
We're giving notice of rights to people in this specific time frame and we're taking into effect substitute decision-makers who may have the decision-making for treatment or personal assistance services.
The Chair: Shall the motion carry? Carried.
Mrs Johns: Page 53. I move that paragraph 2 of subsection 9.19(2) of the Charitable Institutions Act, as set out in subsection 61(6) of the bill, be struck out and the following substituted:
"2. If a resident of the home is mentally incapable, any of his or her substitute decision-makers."
This allows either substitute decision-maker to request a residents' council in a charitable home.
The Chair: Shall the motion carry? Carried.
Mrs Johns: Page 54. I move that paragraphs 2 and 3 of subsection 9.19(3) of the Charitable Institutions Act, as set out in subsection 61(7) of the bill, be struck out and the following substituted:
"2. If a resident of the home is mentally incapable, any of his or her substitute decision-makers.
"3. A person selected by the resident or, if the resident is mentally incapable, by any of his or her substitute decision-makers."
This section is talking about who may be a member of the residents' council, and it can be either substitute decision-maker.
The Chair: Shall the amendment carry? Carried.
Shall section 61, as amended, carry? Carried.
Shall sections 62 to 67, inclusive, carry? Carried.
Section 68.
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Mrs Johns: I'm on page 55. I move that the definition of "substitute decision-maker" in section 1 of the Homes for the Aged and Rest Homes Act, as set out in subsection 68(1) of the bill, be struck out and the following substituted:
"`substitute decision-maker,' in relation to a resident, means,
"(a) the person who would be authorized under the Health Care Consent Act, 1995, to give or refuse consent to a treatment on behalf of the resident if the resident were incapable with respect to the treatment under that act, or
"(b) the person who would be authorized under the Health Care Consent Act, 1995, to make a decision concerning a personal assistance service on behalf of the resident if the resident were incapable with respect to the personal assistance service under that act."
We're talking about substitute decision-makers under the homes for the aged, and we're recognizing that a person may have two substitute decision-makers, one for treatment and one for personal assistance. This was supported by the Advocacy Centre for the Elderly.
The Chair: Shall the amendment carry? Carried.
Mrs Johns: Page 56. I move that clause 19.5(d) of the Homes for the Aged and Rest Homes Act, as set out in subsection 68(2) of the bill, be struck out and the following substituted:
"(d) an opportunity to participate fully in the development and revision of the resident's plan of care is provided to,
"(i) the resident,
"(ii) if the resident is mentally incapable, his or her substitute decision-maker described in clause (a) of the definition of `substitute decision-maker' in section 1 and, unless it is the same person, his or her substitute decision-maker described in clause (b) of the definition of `substitute decision-maker' in section 1, and
"(iii) such other person as the persons mentioned in subclauses (i) and (ii) may direct; and"
This motion gives attention to the plan of care and it says that there may be two substitute decision-makers who have to receive the plan of care, the one for treatment or personal assistance services.
The Chair: Shall the amendment carry? Carried.
Mrs Johns: Page 57. I move that subsection 30.4(1.1) of the Homes for the Aged and Rest Homes Act, as set out in subsection 68(5) of the bill, be struck out and the following substituted:
"Same
"(1.1) The notice must be given to,
"(a) each resident of the home or joint home, as the case may be;
"(b) if the resident is mentally incapable, his or her substitute decision-maker described in clause (a) of the definition of `substitute decision-maker' in section 1 and, unless it is the same person, his or her substitute decision-maker described in clause (b) of the definition of `substitute decision-maker' in section 1; and
"(c) such other person as the persons mentioned in clauses (a) and (b) may direct."
This is the notice of rights for both substitute decision-makers.
The Chair: Shall the amendment carry? Carried.
Mrs Johns: Page 58. I move that paragraph 2 of subsection 30.6(2) of the Homes for the Aged and Rest Homes Act, as set out in subsection 68(6) of the bill, be struck out and the following substituted:
"2. If a resident of the home or joint home, as the case may be, is mentally incapable, any of his or her substitute decision-makers."
This is a request to have a residents' council, and either of the individual substitute decision-makers can request that.
The Chair: Shall the amendment carry? Carried.
Mrs Johns: Page 59. I move that paragraphs 2 and 3 of subsection 30.6(3) of the Homes for the Aged and Rest Homes Act, as set out in subsection 68(7) of the bill, be struck out and the following substituted:
"2. If a resident of the home or joint home, as the case may be, is mentally incapable, any of his or her substitute decision-makers.
"3. A person selected by the resident or, if the resident is mentally incapable, by any of his or her substitute decision-makers."
Who can be a member of the residents' council? Either the resident or either of his substitute decision-makers.
The Chair: Shall the amendment carry? Carried.
Shall section 68, as amended, carry? Carried.
Shall sections 69 and 70 carry? Carried.
Proceeding to 71.
Mrs Johns: Page 60.
The Chair: If I may suggest, so you don't lose your voice, I don't know whether the comment is necessary, simply because they've reread it. If they have an objection, I'm sure they'll raise it. Proceed, please.
Mrs Johns: Okay, I'll go without the comment for a little while if you'd like.
Mr Marchese: Oh, no, no. We like the comment. If it doesn't affect your voice, we think you should continue.
Mrs Johns: He's giving me training. I need that kind of direction.
Mr Marchese: We'll be finished in 15 minutes. Don't worry.
The Chair: I leave it up to you.
Mrs Johns: We'll have lots of time to be finished by 5, I think. I'm on page 60.
I move that the definition of "substitute decision-maker" in subsection 2(1) of the Long-Term Care Act, 1994, as set out in subsection 71(1) of the bill, be struck out and the following substituted:
"`substitute decision-maker,' in relation to a person to whom a record, information or an approved agency's decision relates, means,
"(a) the person who would be authorized under the Health Care Consent Act, 1995, to give or refuse consent to a treatment on behalf of the person to whom the record, information or approved agency's decision relates, if that person were incapable with respect to the treatment under that act, or
"(b) any other person who is lawfully authorized to make a decision concerning a community service on behalf of the person to whom the record, information or approved agency's decision relates."
This relates to the substitute decision-maker in the Long-Term Care Act, and we need to allow for the expansion of personal assistance services for community service recipients.
The Chair: Shall the amendment carry? Carried.
Mrs Johns: On page 61, I move that subsection 71 of the bill be amended by adding the following subsection:
"(1.1) Clause 22(4)(b) of the act is repealed and the following substituted:
"(b) if the person who is the subject of the plan of service is mentally incapable, the person or persons who are lawfully authorized to make a decision on his or her behalf concerning the community services in the plan of service; and"
This is the plan of care. This was recommended by the Ontario Nursing Home Association, the College of Nurses and the ad hoc commission, and we're giving an expansion of the role for personal assistance services.
The Chair: Shall the amendment carry? Carried.
Mrs Johns: I'm on page 62. I move that section 71 of the bill be amended by adding the following subsection:
"(2.1) Clause 25(1)(b) of the act is repealed and the following substituted:
"(b) if the person receiving the community service is mentally incapable, the person who is lawfully authorized to make a decision on his or her behalf concerning the community service; and"
This is about notice of rights, and we're trying to make the changes to be consistent with the definitions of substitute, which may include personal assistance services.
The Chair: Shall the amendment carry? Carried.
Mrs Johns: I move that clause 32(2)(g.2) of the Long-Term Care Act, 1994, as set out in subsection 71(6) of the bill, be amended by striking out "plan" in the sixth line and substituting "service."
The Chair: Shall the amendment carry? Carried.
Mrs Johns: Page 64. I move that subsection 39(4) of the Long-Term Care Act, 1994, as set out in subsection 71(17) of the bill, be struck out and the following substituted:
"Who must be given notice
"(4) A notice under clause (3)(a) or (b) or a copy of a decision under clause (3)(c) shall be given,
"(a) to the person to whom the decision relates; and
"(b) if the person to whom the decision relates is mentally incapable, to the person who is lawfully authorized to make a decision on his or her behalf concerning the community service."
This talks about a notice of decision regarding a complaint to a board, and this change is to be flexible for the extension of a personal assistance scheme in the community.
The Chair: Shall this amendment pass? Carried.
Shall section 71, as amended, carry? Carried.
Section 72.
Mrs Johns: Page 65. I move that the definition of "rights adviser" in subsection 1(1) of the Mental Health Act, as set out in subsection 72(4) of the bill, be amended by adding "but does not include a person involved in the direct clinical care of the patient to whom the rights advice is to be given" after "facility" in the fifth line.
This had strong support throughout the hearings. We heard about concerns of conflict of interest from the Ontario Advocacy Commission, the Advocacy Centre for the Elderly, the Family Mental Health Alliance, the Kingston AIDS Project, the Family Association for Mental Health Everywhere and the Queen Street Patients Council.
The Chair: Shall this amendment carry? Carried.
Mrs Johns: Page 66. I move that clause 35(3)(e.4) of the Mental Health Act, as set out in subsection 72(11) of the bill, be amended by striking out "plan" in the last line and substituting "service."
The Chair: Shall this amendment carry? Carried.
Mrs Johns: Page 67. I move that subsections 72(22) and (23) of the bill be struck out.
This talks about the appointment of representatives for records under the Mental Health Act, and this was supported by ARCH, ACE and the PPAO. It permits the Consent and Capacity Board to appoint someone else as the representative for records and allows for conditions to imposed by the board only with the approval of the incapable person.
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The Chair: Shall this amendment carry? Mr Marchese.
Mr Marchese: I just have a brief comment to that motion. The effect of this is that it restores "if the patient approves" rather than "if the patient does not object" and we support the language that speaks of "if the patient does not object."
I want to refer to what the Canadian Mental Health Association from Ottawa-Carleton said about this, and the Canadian Mental Health Association from Waterloo, where they say, "Substituting the words `does not object' for the words `if the patient approves' turns this provision from one requiring explicit approval to one requiring only implicit approval. This change could result in the disclosure of records that would not be in the best interests of the patient." We support that particular argument, so if the effect of this motion is to restore the language "if the patient approves" rather than "if the patient does not object," then we disagree with this.
Ms Perun: The purpose of the motion is to go back to what the Mental Health Act used to say --
Mr Marchese: Which was "if the patient approves."
Ms Perun: Yes, that's right.
Mr Marchese: Right. And I just read out --
Mr Tilson: So what's your point?
Mr Marchese: I'm sorry. The two associations that I read, did I misunderstand this? In what I read to you, did I say something that says something different?
Mrs Johns: I'm confused. Can you read that again to us?
Mr Marchese: The two organizations have said the following: "Substituting the words `does not object' for the words `if the patient approves'" -- which is what you're doing with this motion, is it not? -- "turns this provision from one requiring explicit approval to one requiring only implicit approval. This change could result in the disclosure of records that would not be in the best interests of patients." So they are saying they would prefer language that says "if the patient approves."
Ms Perun: That's right. They would prefer the harder onus, to have actual approval and what Bill 19 did was change it to simply "does not object," which is a lesser obligation. This motion to amend simply goes back to what it was under the Mental Health Act.
The Chair: Shall the amendment carry? Carried. Mrs Johns.
Mrs Johns: This is government motion 67a. It needs unanimous consent because I'm touching a section of the act that we didn't open up previously. This is in response to --
The Chair: Do you want to read it into the record, please?
Mrs Johns: Yes, but I just want to tell them so I can get unanimous consent that this is in response to something Mrs Caplan wanted to have happen.
Mr Michael Brown: Then we're all ears.
Mrs Johns: I move that section 72 of the bill be amended by adding the following subsection:
"(28.1) The act is amended by adding the following section:
"Counsel for patients under 16
"43. If a patient who is less than 16 years old is a party to a proceeding before the board under section 13 or 39 and does not have legal representation,
"(a) the board may direct the children's lawyer to arrange for legal representation to be provided for the patient; and
"(b) the patient shall be deemed to have capacity to retain and instruct counsel."
Under the sections that are quoted that talk about parent consent for a child and involuntary admission, what we're doing here is giving the opportunity that the board may direct the children's lawyer to arrange legal counsel for the child.
The Chair: The amendment is out of order as section 43 of the Mental Health Act is not opened in Bill 19. It will take unanimous consent. Is there such consent? Shall the motion pass? Agreed. Proceed, Mrs Johns.
Mrs Johns: Page 68.
I move that clause 81(1)(h) of the Mental Health Act, as set out in subsection 72(33) of the bill, be struck out and the following substituted:
"(h) governing designations by psychiatric facilities or the minister of persons or categories of persons to perform the functions of a rights adviser under this act and governing the revocation of such designations, including,
"(i) requiring, permitting or prohibiting designations and revocations,
"(ii) prescribing who may make designations and revocations on behalf of a psychiatric facility,
"(iii) prescribing qualifications or requirements that a person must meet before he or she may be designated by a psychiatric facility and qualifications or requirements that a person must meet before he or she may be designated by the minister, and
"(iv) prescribing obligations in relation to the provision of information about designations and revocations that have been made."
The new wording more clearly sets out the powers the government has to direct the designation, qualifications and training of rights advisers.
The Chair: Shall this amendment pass? Carried. Mrs Johns.
Mrs Johns: It's Mrs Caplan, but I'd like to make one suggestion before you go ahead. I don't know if I can make a friendly amendment, but we're prepared to accept the next one and we're also prepared to have (e.3) in there, if you'd like to look at that and see if you'd like to have that in there also.
The Chair: This is page 68a we're talking about?
Mrs Johns: Yes.
Mrs Caplan: Because I've been at the Board of Internal Economy, and around here it's kind of interesting to be in two places at once, could you just give me a minute to find my spot in the act? What page in the act are we on? Page 48. That helps.
Mrs Johns: We want (e.3) included also.
Mrs Caplan: I accept that. Shall I read it in now?
The Chair: Mrs Caplan, are you going to read it into the record with the change?
Mrs Caplan: Yes.
I move that subsection 72(33) of the bill be amended by adding the following clause to subsection 81(1) of the Mental Health Act:
"(k.3) governing the use, disclosure and retention of personal information obtained from the disclosure, transmission or examination of a clinical record under clause 35(3)(e.3), (e.4) or (e.5)."
This amendment puts the same regulation-making power regarding the protection of personal information as it did under the Substitute Decisions Act. It's consistent, it's important, and we think it was probably just an oversight. I hope it was just an oversight. I am delighted that the government is supporting us, because we think that the protection of personal privacy of medical records is something that we can't be too careful about. It's an obligation that we all have, and I'm pleased the government can support this one.
The Chair: Shall the amendment carry? Carried.
Shall section 72, as amended, and section 73 carry? Carried.
Moving up to section 74, Mrs Johns.
Mrs Johns: I'm on page 69.
I move that the definition of "substitute decision-maker" in subsection 1(1) of the Nursing Homes Act, as set out in subsection 74(1) of the bill, be struck out and the following substituted:
"`substitute decision-maker,' in relation to a resident, means,
"(a) the person who would be authorized under the Health Care Consent Act, 1995 to give or refuse consent to a treatment on behalf of the resident if the resident were incapable with respect to the treatment under that act, or
"(b) the person who would be authorized under the Health Care Consent Act, 1995 to make a decision concerning a personal assistance service on behalf of the resident if the resident were incapable with respect to the personal assistance service under that act."
Under the Nursing Homes Act we're suggesting that a person may have two substitute decision-makers, one for treatment and one for personal assistance services.
The Chair: Shall the amendment pass? Carried.
Mrs Johns: I'm on page 70.
I move that clause 20.10(d) of the Nursing Homes Act, as set out in subsection 74(2) of the bill, be struck out and the following substituted:
"(d) an opportunity to participate fully in the development and revision of the resident's plan of care is provided to,
"(i) the resident,
"(ii) if the resident is mentally incapable, his or her substitute decision-maker described in clause (a) of the definition of `substitute decision-maker' in subsection 1(1) and, unless it is the same person, his or her substitute decision-maker described in clause (b) of the definition of `substitute decision-maker' in subsection 1(1), and
"(iii) such other person as the persons mentioned in subclauses (i) and (ii) may direct; and"
This talks about the plan of care and takes into effect that a person may have two substitute decision-makers and that they plus the resident could see the plan of care.
The Chair: Shall the amendment pass? Carried.
Mrs Johns: I'm on page 71.
I move that subsection 20.16(1.1) of the Nursing Homes Act, as set out in subsection 74(5) of the bill, be struck out and the following substituted:
"Same
"(1.1) The notice must be given to,
"(a) each resident of the nursing home;
"(b) if the resident is mentally incapable, his or her substitute decision-maker described in clause (a) of the definition of `substitute decision-maker' in subsection 1(1) and, unless it is the same person, his or her substitute decision-maker described in clause (b) of the definition of `substitute decision-maker' in subsection 1(1); and
"(c) such other person as the persons mentioned in clauses (a) and (b) may direct."
This talks about the notice of rights in the Nursing Homes Act, and it takes into effect the resident and the possibility of two substitute decision-makers.
The Chair: Shall the amendment carry? Carried.
Mrs Johns: On page 72.
I move that paragraph 2 of subsection 29(2) of the Nursing Homes Act, as set out in subsection 74(6) of the bill, be struck out and the following substituted:
"2. If a resident of the nursing home is mentally incapable, any of his or her substitute decision-makers."
This is talking about who can request a residents' council in a nursing home and it's the resident or his substitute decision-maker, either one.
The Chair: Shall the amendment carry? Carried.
Mrs Johns: On page 73.
I move that paragraphs 2 and 3 of subsection 29(3) of the Nursing Homes Act, as set out in subsection 74(7) of the bill, be struck out and the following substituted:
"2. If a resident of the nursing home is mentally incapable, any of his or her substitute decision-makers.
"3. A person selected by the resident or, if the resident is mentally incapable, by any of his or her substitute decision-makers."
This talks about who can be a member of the residents' council in a nursing home.
The Chair: Carried? Agreed.
Shall sections 75 to 79, inclusive, carry? Carried.
Mrs Johns: The amended section has to be carried also.
The Chair: I'm sorry. I didn't ask, shall section 74, as amended, carry? Carried.
Shall the long title of the bill carry?
Mrs Caplan: No, I'd like to have some debate on this.
The Chair: We have some time, Mrs Caplan.
Mrs Caplan: That's for Mr Tilson, who seemed worried that we weren't going to get --
Mr Tilson: I was sceptical.
Mrs Caplan: That's right. He was so worried that we weren't going to get through this legislation by 5 o'clock, and we have half an hour to go. So I wanted to give him an opportunity to apologize to committee members for cutting our lunchtime by the half-hour that is remaining on the clock, because of his scepticism that we weren't going to get through the bill. Is there anything you'd like to say?
Mr Tilson: Let's put it this way. I'm just amazed.
Interjections: Agreed.
The Chair: That's carried?
Shall the long title of the bill carry? Carried.
Shall the bill, as amended, carry? Carried.
Shall I report the bill, as amended, to the House? Agreed.
It is ordered that the Chair report Bill 19, as amended, to the House. I don't believe it. You surprise me indeed.
I'd like to thank all the staff involved and the technicians for their assistance. I'd like to thank each member of the committee for their patience and invariable good humour. I'd especially like, on behalf of the Vice-Chairman and myself, to thank the opposition, all distinguished and experienced parliamentarians, who did not take advantage of the two novice chairmen making their first voyage on this bill. I thank you very much.
The committee adjourned at 1634.