Brian's Law (Mental
Health Legislative Reform), 2000, Bill 68, Mrs
Witmer / Loi Brian de 2000 sur la réforme
législative concernant la santé mentale,
projet de loi 68, Mme Witmer
STANDING COMMITTEE ON
GENERAL GOVERNMENT
Chair /
Président
Mr Steve Gilchrist (Scarborough East / -Est PC)
Vice-Chair / Vice-Présidente
Mrs Julia Munro (York North / -Nord PC)
Mr Toby Barrett (Norfolk PC)
Mrs Marie Bountrogianni (Hamilton Mountain L)
Mr Ted Chudleigh (Halton PC)
Mr Garfield Dunlop (Simcoe North / -Nord PC)
Mr Steve Gilchrist (Scarborough East / -Est PC)
Mr Dave Levac (Brant L)
Mr Rosario Marchese (Trinity-Spadina ND)
Mrs Julia Munro (York North / -Nord PC)
Substitutions / Membres remplaçants
Mr Brad Clark (Stoney Creek PC)
Ms Frances Lankin (Beaches-East York ND)
Mrs Tina R. Molinari (Thornhill PC)
Mr Richard Patten (Ottawa Centre / -Centre L)
Also taking part / Autres participants et
participantes
Mrs Lyn McLeod (Thunder Bay-Atikokan L)
Mr Gilbert Sharpe, director, legal services branch,
Ministry of Health and Long-Term Care
Ms Diana Schell, legal counsel,
Ministry of Health and Long-Term Care
Clerk / Greffier
Mr Viktor Kaczkowski
Staff /Personnel
Ms Laura Hopkins, research officer
Research and Information Services
The committee met at 1648 in committee room
1.
BRIAN'S LAW (MENTAL HEALTH LEGISLATIVE REFORM), 2000
/ LOI BRIAN DE 2000 SUR LA RÉFORME LÉGISLATIVE
CONCERNANT LA SANTÉ MENTALE
Consideration of Bill 68, An
Act, in memory of Brian Smith, to amend the Mental Health Act and
the Health Care Consent Act, 1996 / Projet de loi 68, Loi à
la mémoire de Brian Smith modifiant la Loi sur la santé
mentale et la Loi de 1996 sur le consentement aux soins de
santé.
The Chair (Mr Steve
Gilchrist): Good afternoon. I'd like to call the
committee to order. Before I announce the nature, I guess I
should report that we had a subcommittee meeting earlier this
afternoon. The subcommittee has recommended that the committee
meet to conduct clause-by-clause consideration of Bill 68,
commencing at 4:45 pm on Monday, June 12, 2000, and at the
committee's regularly scheduled meeting time on Wednesday, June
14, 2000. I think, if I could, I'll ask someone to move the
adoption of the subcommittee report.
Mrs Julia Munro (York
North): I move the adoption of the subcommittee
report.
Mr
Gilchrist: Thank you. Any debate?
Ms Frances Lankin
(Beaches-East York): I just want to indicate on the
record that one of the reasons we are commencing at 4:45 is to
give an opportunity to committee members to take a look at the
amendments. I, in particular, had requested that. The entire
package of 82 amendments was only compiled and made available to
committee members sometime during the process of the time in
question period, due to absolutely no fault of the clerk's
office, which did heroic yeoman's duty in getting these
reproduced, collated and sent around, but as a matter of the
tight time frame we're on and the amount of time it took to go
through legislative drafting.
I simply want it recorded
that while there's been a tremendous amount of co-operation on
all parties' parts, the Chair, the committee and the clerk's
office to facilitate the best work we can do as legislators on
this, the time frames that have been imposed on us for working
are totally unacceptable in terms of an appropriate review of
complex and significant legislation.
Having said that, I spent the
45 minutes that the subcommittee graciously accorded us and am as
prepared as I can be in that time frame to proceed with at least
the first part of the amendments here this afternoon.
The Chair:
Any further debate? Seeing none, I'll put the question. All those
in favour of adopting the subcommittee report? Opposed? It's
adopted.
That takes us to
clause-by-clause consideration of Bill 68, An Act in memory of
Brian Smith, to amend the Mental Health Act and the Health Care
Consent Act, 1996.
You should all have an
amendment packet in front of you, including one change the clerk
has drawn to the attention of all members. With that, we'll start
with page 1, government motions.
Perhaps, if I can help, Mr
Clark, it's my understanding that the first amendment is
withdrawn and will be replaced by amendment 3A, if members can
put that in the proper position. It's six of one, half a dozen of
the other which of us makes that announcement.
Mrs Lyn McLeod
(Thunder Bay-Atikokan): Perhaps if I can help just
quickly, the changes were to change words like "repealed" and
"struck out," to substitute the words. It's really just a wording
difference as opposed to a substantive change.
The Chair:
Correct. Which would then beg the question, any further
amendments to section 1 of the bill?
Mrs McLeod:
I just want to raise the issue because this all falls around the
whole question of whether or not you should have a psychiatrist
in order to issue community treatment orders. I see the reference
here is to "qualifications prescribed in the regulations." Is it
considered that the regulations would specify that there has to
be a psychiatrist issuing the treatment order and that would be
what constitutes a legally qualified medical practitioner?
Mr Brad Clark (Stoney
Creek): It would be a qualified physician or
psychiatrist, as I understand it.
Mrs McLeod:
So it will be "or" psychiatrist. One of the discussion points
that we've had along the way was that there should be, at the
very least, a psychiatric consultation before community treatment
orders could be issued.
Mr Clark: I
think the difficulty that we find ourselves in is the number of
communities in northern Ontario that don't necessarily have a
psychiatrist, and there are physicians who can also do the same
duty but they have to be qualified in order to provide that care.
So in terms of the community
treatment order, it would be a qualified physician or
psychiatrist.
Mrs McLeod:
Do you anticipate that the regulations would specify some
specific training beyond the family practitioner's licence, some
specific training in psychiatry?
Mr Clark:
That was my understanding, yes.
Ms Lankin:
One of the issues that I've raised on a number of occasions
during the hearings was concern that the community treatment
order provision was being supervised by a general practitioner.
In this case now, a qualified practitioner with qualifications
prescribed in the legislation need only determine that an
individual has met the requirement for a referral to assessment,
not necessarily met the requirement for involuntary admission.
The concern rests in that section and we'll address it with the
amendments there. But if the government is unwilling to address
those amendments and to make a change there, saying that they
have to meet the involuntary admission criteria, you leave us in
a situation where an individual may not for some period of time
have been seen by a qualified psychiatrist and/or have had any
consideration given as to whether or not the community treatment
order is in fact a less restrictive option to what else might be
out there. So if the person doesn't meet the involuntary
admission criteria, it's very hard to make a case that this is a
less restrictive option.
I remain concerned and it's
centred in two different sections of the act, and it depends on
how they relate. Could you indicate whether or not you have any
intention of accepting our amendment which would change the
wording under the community treatment criteria, which references
that they have met the criteria under subsection 15(1)?
Mr Clark:
Which amendment was it?
Ms Lankin:
It's a long way in. I believe it's number 42: as opposed to
"having met the criteria for the completion of an application for
psychiatric assessment under subsection 15(1) or (1.1),"
substituting "having met the criteria for involuntary admission
under section 20(1.1)." It was clear in the documents that I
supplied to the government last week that we would be
recommending that kind of a change.
Mr Clark:
Your question is with specific regard to involuntary
admission?
Ms Lankin:
Yes, because that helps give some shape to what we're doing,
whether it's just a qualified practitioner under the regulations
or whether it's a psychiatrist who has to be involved in the
issuing of a community treatment order.
Mr Clark:
Would you not think that restricting CTO criteria to involuntary
admissions would exclude patients who meet the committal criteria
but agree to voluntary admission?
Ms Lankin:
No. Right now the bill as it's currently drafted doesn't require
that an individual even meet involuntary committal criteria,
simply that they meet the criteria to be referred for an
assessment. This change would insist that in the opinion of the
physician-in this case you're now defining who that physician can
be-they would meet the involuntary admission criteria.
Mr Clark: So
they have to meet the involuntary committal criteria, but an
individual dealing with their physician voluntarily wouldn't meet
the requirements for a CTO, based on what you're suggesting. Is
that what you're saying?
Ms Lankin: I
don't understand your question. No one would stop anyone dealing
with a doctor voluntarily entering into any kind of agreement
that they wanted to.
Mr Clark:
The difficulty with substituting "involuntary admission"-in my
mind what I'm trying to wrestle with is when you have someone who
has voluntary admissions previously. I'm having some difficulty
really understanding what you're trying to suggest here; I really
am. Can you help me out, Lyn?
Mrs McLeod:
When that amendment comes, we'll want to discuss it as well, but
I'm not sure you want to get into that debate now. I think the
concern is that as this amendment that we're considering right
now is written, there's no guarantee that somebody who is being
issued a community treatment order would actually have the
psychiatric examination by a psychiatrist. I think what Frances
is suggesting is, if you have a history of involuntary
admissions, then you would have had a psychiatric examination.
But as this is written, and if you can get a community treatment
order with only voluntary admissions, which is currently the way
the bill is written, then potentially you could be under an order
without having had a psychiatric exam.
Ms Lankin:
If you need, Brad, I can make the case at greater length when we
get to that section.
Mr Clark:
Why don't we do that.
Ms Lankin:
I'm simply trying to understand what your intentions were,
whether you had reviewed the submissions that were made and what
you were going to do with that to help give me guidance with
respect to this section and what is being proposed here.
Mr Richard Patten
(Ottawa Centre): I'm not sure what it is, but it's
symbolic that in calling the bill Brian's Law, Mr Arenburg's
assessment was represented by a person who was not a
psychiatrist, and this was even in a psychiatric facility. So you
could imagine, if people get a little nervous in places where you
don't even have psychiatrists, the importance of training. I
think we need to clarify that. It would seem to me that, surely
to God, in a psychiatric facility it's a psychiatrist who is
trained to do these and it is not a general practitioner-nothing
personal about the general practitioner. Obviously, in this
particular instance they have some training. But you can see the
reaction to this just in that instance-and that's now-to a new
category of custody to a medium-security arrangement. It's a
highly serious forensic case.
Mr Clark:
Can I ask a question of legal staff? Under the Mental Health Act
currently, Gilbert, can general practitioners and physicians not
act currently?
1700
Mr Gilbert
Sharpe: There has never been any obligation that there
be a psychiatrist, because of the concerns about remote areas of the province. You'd have
people who met the criteria who then would not be committable.
Issues, though, of the voluntary admission question that was
raised just now-anyone, of course, who is admitted to a facility,
even as a voluntary patient, would still have had a psychiatric
assessment at some point, because the Mental Health Act requires
that psychiatrists be in charge of the facility and be available.
So there would be the psychiatric expertise that they would have
had available to them at some point in their admission, whether
voluntary or involuntary.
Ms Lankin:
The last thing I would ever want to do is get into a debate with
Gilbert-something I've never done in my life. Actually, that's
not true, is it? I guess we've done it a few times.
Coming back to this, however,
we have a situation where, when you put all the criteria
cumulatively together, you're looking at someone who has had past
admissions to the hospital-I argue that they should be
involuntary, not voluntary, but currently under the proposed
language of the bill they're voluntary admissions to
hospital-over a period of time extending back three years. It
could be a considerable period of time since the last time the
person had any contact with the psychiatric facility and/or a
psychiatrist. You have a regime where a physician-and you have
not in the legislation told us what the qualifications are going
to be; it's not clear that the ministry at this point in time
knows what qualifications and/or training will be acceptable.
That physician is going to again meet a whole lot of criteria,
but one of them being a finding that the individual patient meets
the criteria, in the opinion of the doctor, to be sent for an
assessment only. That's the evidentiary-based stuff; it's not the
actual assessment.
So it is not correct, in my
humble view-as it always is-to imply that an individual would
have necessarily had recent assessment and/or support and/or
treatment from a psychiatrist. For all of what we've talked about
in terms of the patient population that this is supposed to be
designed to help, to intercede on their part and keep them in a
less restrictive, more supportive setting than a psychiatric
facility, it is beyond me how we can create a regime where there
isn't a contact with a psychiatric assessment of some sort
created, or at least a finding by a physician, specially trained,
as you're suggesting, but the person would meet those criteria if
a psychiatrist saw them. It's a threshold question for me.
There's just too big a gap from what the law says and what we
heard is intended.
Mr Sharpe:
Mr Chair, if I could respond briefly, Mr Clark asked the question
about what the act currently says. Of course, it says any
physician, without any stipulation as to the criteria or special
qualifications, any GP, could commit and make decisions under the
statute. What's being proposed is that there will be very special
and limited criteria.
I realize they're not
available now to demonstrate what the regulation would appear
like, but in concert with OPA and other experts there will be
criteria developed that would create a very special rule to make
sure that the qualifications, although not strictly speaking
those of a qualified psychiatrist-that these folks would be very
well qualified, much better qualified than the average GP who
makes decisions now under the act. I think that was the
intention.
Ms Lankin:
If I may, if you're suggesting, then, that the GP-in reality,
most GPs in this province who aren't related to a psychiatric
facility don't make decisions about committals. They make
decisions about referrals for assessment, but not committals, in
real practice, in real life out there. But we're going to have
better-trained folks, and that will get worked out.
If you're saying they are
capable of making a decision about committal, then what I put to
you is when we get to that section of the act, that should be the
criteria; it's incumbent upon them to believe that the person
meets that criteria, as opposed to simply the evidentiary
criteria for referral for assessment.
But all of that is because
they're related; we're not quite at that section. I guess I can
leave it to reiterate then, but I'll ask you to consider, in
conjunction with what you're doing now, to set out qualifications
and training, that there's an even stronger case that these
doctors should be able to make that assessment.
Mrs McLeod:
I just wanted to note, because I think it's going to come up
frequently so I might as well note it at the beginning-and I will
keep noting it-a number of places where we still have some
lingering questions and concerns about how this will actually
work and what some of the risks are in undertaking something new.
I would feel much more comfortable with some of the ambiguity
around it, which I think is inevitable at this point, if the
review process were built in. I stress the fact that we're
talking about a review process and not a sunset clause. I
understand there was, I guess understandably, a negative reaction
to the idea of a sunset clause. It's not intended to see this act
disappear at the end of two years, but I do think a review is
important, to examine who is issuing orders, for example. I just
make the point now that a lot of our concerns could be at least
addressed by saying that we'll review the whole thing in two
years and see how it has worked.
The Chair: I
remind the committee members that technically speaking we don't
even have a motion before us, but I didn't want to truncate
debate, given the rules. We're not under a time allocation
motion. You're going to get your points on the record one way or
another. Given that amendment 1 was withdrawn and will be
renumbered as 3A, that would take us to amendment 2. Mr Patten or
Ms McLeod, do you wish to actually get something on the record so
we can debate that?
Mrs McLeod:
Just briefly, I think the committee members are aware that this
was a recommendation-
The Chair:
Excuse me, you have to read it into the record first.
Mrs McLeod:
I'm sorry. I'm so used to getting to the point where all we can
do is vote.
I move that section l of the bill be amended by
adding the following subsection:
"(4.1) The definition of
`mental disorder' in subsection 1(1) of the act is repealed and
the following substituted:
"`mental disorder' means a
disorder of thought, perception, feelings or behaviour that
seriously impairs a person's judgment, capacity to recognize
reality, ability to associate with others or ability to meet the
ordinary demands of life, in respect of which treatment is
advisable."
I recognize that this does
amend the act. It's a recommendation which was brought to us by
the Ontario Hospital Association, the Ontario Medical Association
and the Ontario Psychiatric Association, all with identical
wording. I believe it's an important clarification of what the
Mental Health Act is about. As the wording is presently contained
in the Mental Health Act-this is the first time the act has been
opened in over 20 years so I think it's appropriate that we look
at something as significant as this-I really think the definition
is so broad that it implies, for example, somebody with a
developmental or learning disability, potentially. I think we
want to make it very clear that this act is intended to deal with
people who have a serious mental illness that needs to be
addressed.
Ms Lankin:
You will notice that the next amendment from the New Democratic
Party is virtually identical, except for a couple of words in a
bracketed add-on. I have no idea why they are there, to tell you
the truth. So I am supportive of the Liberal motion and will, if
this is passed, withdraw our motion.
I think much of what we heard
during the discussions, both from those who are absolutely
supportive of moving to a broader involuntary committal criteria
and the creation of a system of community treatment orders, and
from those who are opposed to those two things, was an agreement
that who the government intended it to apply to-both the general
provisions of the Mental Health Act and the specific new
provisions that are being introduced-are people with serious
mental disorders. In particular-and later on in the legislation
for the community treatment orders we have more specific language
to deal with-there are suggestions that we should look at
clinical narrowing. I think this section, because it applies to
the whole act and not just the community treatment order act, is
appropriate in the wording that is here, that we not go further
and try to do the clinical narrowing per se in this section.
This language does exist, for
example, in Saskatchewan. In fact, this is word for word from the
Saskatchewan law. That is law that has been pointed to often by
the government in support of the measures that are being
introduced in other parts of the bill. I think it has had support
from people, and it's been noted by Ms McLeod during the
committee presentations. There are others who heard those
presentations and who have indicated in the discussions that they
are in agreement with that. So we would put forward our intent at
this point in time to support this motion.
1710
Mr Clark: We
don't support the amending of the definition. It actually came
about through the hearings here. I think it was the OPA that was
in here and they stated that they were no longer pursuing the
change of the definition.
The difficulty we have in the
definition that's being proposed is that there are mentally ill
people who may be a danger and have a mental illness but they're
not treatable-for example, a psychopath. How would they fall into
the definition that's being proposed?
Mrs McLeod:
You're saying a psychopath could be caught in this definition or
would be excluded in this definition?
Mr Clark:
Would be excluded. That was one of the concerns that was raised
by the OPA.
Mrs McLeod:
Obviously, my concern is in the original act where the definition
of "mental disorder" is "any disease or disability of the mind."
I think we've advanced in our understanding of mental illness
beyond that in the last 25 years. There is no ulterior motive
here. I don't see this as in any way challenging the balance of
the act. If that's a concern-and I'm not sure a psychopath is
treatable under this anyway-I would be happy to accept-
Mr Clark:
It's one issue that we raised.
Mrs McLeod:
I'd be pleased to entertain, with my colleague's approval, a
friendly amendment that would strike "in respect of which
treatment is advisable," just to get a narrowing of the
definition, or to hold the vote on this amendment until the
government has a chance to look at that.
Mr Clark:
Can I ask, Gilbert, did you follow up with the OPA when they
stated they were no longer pursuing the change in the
definition?
Mrs McLeod:
I did ask, I think it was the OMA, whether or not they were still
supportive of that and they said yes, they were. They just hadn't
pursued it in their presentation.
Mr Sharpe:
It's an advance in the definition. You're right, the old
definition of "disease or disability of the mind" does go back a
long way.
As a lawyer, I was involved
years ago in trying to amend the McNaughton test in the Criminal
Code for insanity. I was impressed at that time that any time you
make even a word change and you get into jurisprudence, you're
never really sure what the impact is going to be. The concern
that this definition may or may not capture the full breadth of
folks who are now committable-I don't believe that the way our
system operates, there's abuse in looking particularly at the
"disability of the mind" side. Even without the part that refers
to treatment, there has been concern expressed in some quarters
about the rest of the definition and whether or not it would
capture the full breadth of folks who are committed today to
hospitals for quite appropriate reasons, with review board
sanctions and courts and so on.
I believe the primary concern
was that we don't know for certain what road we're going down.
Recognize that other
jurisdictions, other provinces, have embarked on this as well.
But as part of the amendment to the act that's looking just at
the community treatment order side of it, this would be more
properly the subject matter of a complete overhaul of the Mental
Health Act itself and how a new definition, the triggering point,
would apply to the rest of the act as a whole. I believe that was
the thinking.
Mrs McLeod:
Mr Chair, I wouldn't want to argue with Gilbert either, but in
all honesty, if we take out "in respect of which treatment is
advisable"-I hear what Mr Clark is saying in terms of, what does
that exclude, I appreciate that-but if then you have "a disorder
of thought, perception, feelings or behaviour that seriously
impairs a person's judgment, capacity to recognize reality ... or
ability to meet the ordinary demands of life," it's hard to
imagine who you would be excluding with that definition, apart
from somebody, for example, with a developmental disability or
somebody with a learning disability, which is a disability of the
mind, but who certainly are not the intent of any part of the
Mental Health Act.
Mr Sharpe:
Again, for what it's worth, over the years I've been part of
discussions about the dual diagnosis category of
individuals-you're right-those with a developmental handicap and
a mental illness.
Mrs McLeod:
There are two diagnoses there.
Mr Sharpe: I
think you're right, there is that other dimension. I'm not
suggesting that the act any longer is targeted at the
developmentally handicapped, by any means, but might that be a
category that, where dangerous, those folks would not be
committable because, as we know, the Developmental Services Act
does not have detention powers in it?
Mrs McLeod:
If you're talking about dual diagnosis, they also have a
psychiatric diagnosis, so they would fall under this definition
for all purposes of the act, because of the dual diagnosis
itself. The second part of the diagnosis wouldn't count towards
that, nor should it, but the psychiatric assessment diagnosis
would.
Mr Sharpe: I
understand what you're saying, and I understand the debate. I
think it's just a matter of, in the time that was given to
develop the amendments aimed at community treatment orders, the
impact of developing a new standard, a new test for mental
disorder, was not fully pursued. This, again in the context of an
overhaul of the Mental Health Act itself, in my experience
dealing at the federal level with the insanity laws, is a much,
much bigger task to do.
The sense was that we've got
to-
Mrs McLeod:
I won't be here 25 years from now.
Mr Sharpe: I
think the sense was that, in fairness, the test has stood for a
long, long time, and should we be tampering with it now when
we're really seeking to do something quite limited to the
legislation?
Mr Clark: In
fairness also, when the OMA and the OPA came out with this
definition early on in my consultations when I was dealing with
the next steps, it wasn't included as a part of the document that
we were asking people to comment on. As I was touring the
province, asking for comments on a number of changes that we were
proposing to the Mental Health Act, I did not ask for comments on
the change to the definition of "mental disorder" under the
Mental Health Act.
I do have concerns from that
standpoint, that there hasn't been consultation on it. I would
rather err on the side of caution and not amend that particular
section at this particular time.
The Chair:
Any further debate? Seeing none, I'll put the question.
All those in favour of Ms
McLeod's motion? Opposed? The amendment is defeated.
Ms Lankin, with the exception
of the clause and the French definition at the end, the wording
for amendment 3 in our packet is identical.
Ms Lankin:
Yes, it is.
The Chair:
I'll rule that one is out of order, which takes us back to the
former amendment 1, now renumbered amendment 3A in your
packet.
Mr Clark: It
looks like subsection 1(5.1)-am I reading that correctly?-or
section 5.1. They've got me all over the place here.
I move that section 1 of the
bill be amended by adding the following subsection:
"(5.1) The definition of
`physician' in subsection 1(1) of the act is repealed and the
following substituted:
"`physician' means a legally
qualified medical practitioner and, when referring to a community
treatment order, means a legally qualified medical practitioner
who meets the qualifications prescribed in the regulations for
the issuing or renewing of a community treatment order.
(`médecin')"
The Chair:
Debate? Seeing none, all those in favour of the amendment?
Opposed?
The amendment carries.
Mr Patten or Ms McLeod.
Mrs
McLeod: This is an amendment that follows a
recommendation of the Canadian Mental Health Association. They
were concerned that there was not a provision-
The Chair:
Again, Ms McLeod, sorry; we have to read it.
Mrs
McLeod: I move that section 1 of the bill be amended by
adding the following subsection:
"(7.1) Subsection 1(1) of
the act is amended by adding the following definitions:
"`qualified health
practitioner' means, when referring to a community treatment
plan, a legally qualified health practitioner who meets the
qualifications prescribed in the regulations for providing
services as a qualified health practitioner under a community
treatment plan;
"`qualified service
provider' means, when referring to a community treatment plan, a
service provider who meets the qualifications prescribed in the
regulations for providing services as a qualified service
provider under a community treatment plan."
Just to follow up with a
discussion, if I may, this follows on a recommendation by the
Canadian Mental Health
Association, recognizing the fact that we have specified
"qualified physician" and will define that further under the
regulations, based on the amendment we just passed, that the same
should be taken into consideration for other health practitioners
and service providers, and that the qualifications would in fact
be set out in regulations.
There was a concern that
with the breadth of the community treatment plans, there could be
unqualified health practitioners and service providers involved
in care and treatment, and that would not be appropriate.
1720
Mr Clark:
We don't support the amendment. The concern we have about it is
you're identifying "qualified health practitioner." This in
essence takes us back to where we were with the previous motion,
"qualified family physician" or "physician."
Perhaps I need more from
you, Lyn-sorry to do this to you. The second section, "qualified
service provider": Can you enlighten me a little bit more,
please?
Mrs
McLeod: In terms of the breadth of a community treatment
plan, there will be a number of people involved in providing
service, either as health practitioners or service providers. I
think it's no different than having regulations that will set out
the qualifications for a physician who can act under this
act-that there should also be regulatory provision for who
qualifies as health practitioners or service providers. I just
again go back to the Canadian Mental Health Association, who
acknowledged that they don't have a specific suggestion as to the
qualifications that should be provided; that's more appropriately
determined by the professional regulatory bodies:
"The bill allows
regulations to be passed in respect of governing community
treatment orders, including the qualifications of those who issue
orders, but there's no obligation to develop those standards.
"It's important that people
who are seriously mentally ill receive appropriate treatment from
knowledgeable care providers. Inappropriate medication or failure
to provide"-this gets more into the physician issue. So it's
really just an extension of the physician qualifications to
further define under regulations any health providers or service
providers who might be involved in community treatments.
Ms Lankin:
Mr Clark, I think later on in the legislation you have specific
references to regulated health professionals, and that is the
language that we normally are accustomed to with respect to those
professions. As I understand the proposal that Ms McLeod has put
forward-and I'm supportive of it-it's to indicate that even
within the regulated health professions, similar to within the
practice of medicine and the qualified doctor, there are
expectations of the type of training people will have to give
this particular clientele and the particular structure of
community treatment plans. I think it's trying build the most
supportive group of people out there.
With respect to service
providers, there are currently no regulations out there that
detail qualifications, at least. There are certainly ethical
standards, there are organizational expectations, there are
accountability measures if they're part of a transfer agency, so
there certainly are some other mechanisms out there, but again,
nothing to apply a test of whether or not they are appropriate to
the regime that we're asking them to take part in.
Similar to what you have
done for the issue of a medical practitioner indicating that
there will be a current set of criteria described in legislation
that we have expectations that we're going to meet, other aspects
of the community treatment plan rests in the hands of various
people up there.
I would point out to you
that in the community treatment order section, as I've just gone
through that set of amendments, there are a large number of
amendments from the government which change the language from
"treatment" to "treatment or care and supervision." That implies,
in and of itself-we'll talk about that when we get there in
discussion; I have questions about that-the range and variety of
people who would be involved in a comprehensive community-based
treatment plan, and that it's not simply medical treatment. So I
think some of these physicians, while it might take them a while
to get through the regulations that would be applicable, can be
very important safeguards to help make this an effective,
comprehensive community program.
Mr Clark:
Can I ask, through clarification, also about "qualified health
practitioner" and "qualified service provider"? I know what I'm
talking about when we're talking about a physician or a
psychiatrist. Who are you talking about as qualified health
practitioners? Who are they?
Mr Patten:
They could be nurses, they could be social workers.
Ms Lankin:
My assumption is that these health practitioners are people who
come under the Regulated Health Professions Act, and we're saying
that for the purpose of this legislation they meet the
qualifications prescribed. For all others who are not regulated
health professionals, I believe the service provider provision is
intended to apply to them.
Mrs
McLeod: Just to follow up on that, if we think of
supportive housing settings as being a component of a community
treatment plan for some individuals, the people who are providing
support in that setting would not necessarily be health
providers-they likely wouldn't be health providers-but would be
service providers.
Mr Clark:
A question to legal counsel: Gilbert, how does the Regulated
Health Professions Act deal with this situation that we're
talking about right now?
Mr Sharpe:
The RHPA of course sets the basic standards and criteria for
licensure by regulatory colleges for each of the professions. So
they would initially determine whether or not an individual
applicant met the criteria to be a nurse, a doctor or whatever,
and then would, through its committee complaints process and so
on, determine whether or not they maintain the standards of practice in their profession.
That would simply be an identification of basic qualifications to
practise the profession. It wouldn't really necessarily have any
direct bearing on whether they were qualified under any
particular statute to take on measures that might go beyond the
general qualifications required to practise.
For example, in the
situation where the government has dealt with a physician and
said, "If you're going to be involved in community treatment
orders, one must hold special qualifications set out in the
regulations for the very limited purpose of those community
treatment orders because they have certain consequences and
implications for individuals, special criteria are going to be
established." It's then a bit of a step to say, are we going to
establish special qualifications for all of those health
practitioners and others involved in caring and treating persons
involved in community treatment orders? Arguably, if you're going
to do that, then you should take the next step and do it for all
of those patients who are under the Mental Health Act, not just
for those under community treatment orders.
The intent of the
government in proposing the limitation on physicians who issue
community treatment orders as being subject to special
qualifications was simply because that is a new, important
accountability obligation that was being assumed. It's just those
physicians who are taking on that responsibility for whom the
government would ultimately set qualifications. But, as I say, I
think it is quite a stretch to say we're now going to look at
adopting qualifications for all of those health professionals and
service providers who are involved in the mental health system
under the legislation.
Mr Clark:
Are qualified service providers under any act?
Mr Sharpe:
No. As far as I know, the important legislation is the health
practitioner reference, and that's the Regulated Health
Professions Act. Whether there's any specific legislation
regulating others who are not health professionals-there is some
legislation now for social workers and there may be some
legislation for others, but I don't know of anything as
comprehensive as the RHPA. If there were, again I think it would
be basic meeting-the-qualifications-type legislation.
Mr Clark:
Can I make a suggestion that we stand this one down? I need some
clarification on the qualified service provider because I can't
find something that it matches to. It's not clicking in. If we
can leave this until Wednesday, then I can check a few things out
and come back on Wednesday.
Mrs
McLeod: I would certainly be happy with that. I think
the concern that underlies this is that it may be a challenge to
define the qualifications, although clearly this is not directive
because it's open to whatever regulations the government thinks
are appropriate. I don't think you need to make the stretch to
say that therefore you would have to extend this to everybody. It
might be a good idea, but I don't think this necessitates it
because we are dealing with, as I've said over and over again, 5%
of the population of people with serious mental illness to whom
the broad act would apply. Because this is involuntary still-I
recognize the element of consent, but it's not necessarily the
consent of the individual-there does need to be a particular
sensitivity to know how to deal with these people if the
community treatment order itself is going to actually be
effective. One of the concerns that was expressed by a number of
groups was that the community treatment order may deter people
from seeking care, that it may be seen to be coercive, it may
create a lack of trust. I think that's why there's a need for
real sensitivity on the part of anybody who is involved in care,
treatment or supervision of an individual under that community
treatment order. It's broad enough to give the government the
chance to say what's actually workable here, but still draws
attention to the need to be really careful about who interacts
with these very sensitive individuals.
1730
Ms Lankin:
I also agree with the suggestion to stand this down to Wednesday.
I just want to make a suggestion that if the government finds its
way to supporting this, we may want to just do a little
rewording. I would offer, I hope as a helpful suggestion, that in
referring to "qualified health practitioner" it would be helpful
to make reference to the existing terminology of "regulated
health professional," thus, "`qualified regulated health
professional' means, when referring to a community treatment
plan, a member of a regulated health profession other than a
physician who meets the qualifications prescribed in the
regulations...." This accords it both with the RHPA as well as
with the clause that you've just passed with respect to
physician.
I urge you in particular to
take a look at the issue of service provider. It's the very fact
that there is nothing out there which regulates that section or
sets out a structure that lends credibility to the argument Mrs
McLeod has put forward that for this very sensitive project to
try and make successful the implementation of community treatment
orders, we should have some mechanism of testing an individual's
qualifications against some expectations that we have.
The Chair:
Do we have agreement to defer this till Wednesday? Thank you.
Further amendments to
section 1, Mr Clark.
Mr Clark:
I move that the definition of "rights adviser" in subsection 1(1)
of the Mental Health Act, as set out in subsection 1(8) of the
bill, be struck out and the following substituted:
"`rights adviser' means a
person, or a member of a category of persons, qualified to
perform the functions of a rights adviser under this act and
designated by a psychiatric facility, the minister or by the
regulations to perform those functions but does not include,
"(a) a person involved in
the direct clinical care of the person to whom the rights advice
is to be given, or
"(b) a person providing
treatment or care and supervision under a community treatment
plan." My French is terrible.
The Chair:
"Conseiller en matière de droits."
Mr Clark: Merci beaucoup.
The Chair:
I'm advised you don't need to read the French in future.
Did you wish to comment on
that?
Mr Clark:
We've discussed this at length through the committee hearings a
number of times. I feel it just tightens things up a little bit
for us.
Ms Lankin:
Committee members may note that this motion on page 5 and the
Liberal motion on page 7 and the NDP motion on page 8 are all
very similar. One of the things that's contained in Ms McLeod's
motion is the concept of a person who is certified in accordance
with regulations. It comes back again to the arguments that have
just been made. One of the things we have to recognize as health
care changes is where in fact it is performed. As we move out
into the community in new and different ways, some of the
mechanisms and safeguards that have been put in place in
facilities-based or institutional-based or hospital-based don't
always follow easily out into the community. In the past, the
concept of rights advice was something that was primarily
hospital-based. We had mechanisms through the Psychiatric Patient
Advocate Office and through other developments over time within
the Ministry of Health to ensure that there was a pool of
trained, qualified people to provide that kind of rights
advice.
We're now talking about
moving out into a community. I'll reiterate briefly the comment I
was making about a physician, not necessarily a psychiatrist, out
in a community who sees someone who doesn't necessarily have an
immediate past relationship with a psychiatric facility and sets
them on an order for a community treatment plan. That section's
full of references to the individual having access to rights
advice. The availability of that rights advice and the quality of
that rights advice really needs to be a concern.
The language that is
proposed in the amendment that is actually before us talks about
a person who is "qualified to perform the functions," and the
minister sets out the regulations or sets out who is qualified to
perform those functions. What's not set out is the nature of the
qualifications, and that's what we've done with "physician." I'm
assuming that the language in Ms McLeod's motion, which talks
about being "certified, in accordance with the regulations,"
presumes that the qualifications actually have to be set out in
regulations. Although we're all trying to get to the same place,
there is a difference in the way these two are worded.
My question, Mr Clark,
would be, is the government amenable to not simply having those
people who are deemed qualified to be set out in regulation, but
the expectations of what qualifications they're going to meet
being set out in regulations, and/or do you feel that the
amendment you've put forward already achieves that?
Mr Clark:
I was under the impression, and I could be wrong, that the
qualifications for the rights adviser are already set out by
regulation, are they not?
Ms Lankin:
That's a good question.
Mr Clark:
Someone who's an expert?
Ms Diana
Schell: I believe they are. They're set out in, I think,
the Mental Health Act. Just bear with me a moment.
Ms Lankin:
It's one of the things that we haven't had time from receiving
these amendments at 2 o'clock today till now to be able to look
at. This is the point I was trying to make earlier.
Ms Schell:
I'm not sure if everybody has a copy of the Mental Health Act
with them, but section 14 of regulation 741, under the heading
"Designation of Rights Advisers," if I could take you down to
subsection (5), it says:
"14(5) Only persons who
meet the following requirements may be designated by a
psychiatric facility to perform the functions of a rights adviser
under the act in the facility." Then it goes on to say:
"1. The person must be
knowledgeable about the rights to apply to the board provided
under the act and the Health Care Consent Act, 1996.
"2. The person must be
knowledgeable about the workings of the board, how to contact the
board and how to make applications to the board.
"3. The person must be
knowledgeable about how to obtain legal services.
"4. The person must have
the communication skills necessary to perform effectively the
functions of a rights adviser under the act."
If I might draw your
attention to the current definition of "rights adviser," I
believe it only flags in the statute that the person has to be
designated. It doesn't specifically say, I don't think at least,
that they have to be qualified.
Mr Patten:
It says they must meet "the following requirements set out under
regulation 741," and then it lists, "must be knowledgeable about
the rights to apply to the board" and all that sort of thing.
Ms Schell:
That's in the regulations, sir, but the statutory provision says,
"`rights adviser' means a person, or a member of a category of
persons, designated by a psychiatric facility or by the minister
to perform the functions of a rights adviser under this act," and
then it goes on to say it doesn't include a person involved in
the patient's direct clinical care. What I'm trying to point out
as a matter of law is that the statute doesn't flag the
requirement to meet the qualifications. There's a lot of
reg-making power about that, but the definition of rights adviser
doesn't set that out. So that's added to the present government
motion that Mr Clark has introduced, along with paragraph (c)
that excludes people involved in the implementation of a CTO from
the rights advisers.
Ms Lankin:
Diana, could you help me understand? You're suggesting that the
language as proposed here draws a closer connection between the
rights adviser, their qualifications and those functions set out
in regulations?
1740
Ms Schell:
What I'm saying is that it specifically requires that the person
must be qualified by the regulations, where the definition
presently doesn't say that. It would flag up front that the people
appointed by psychiatric facilities, and when the regulations are
in place in respect of CTOs, have to meet the qualifications for
the regulation. The fact that there are regulations that set out
the qualifications would suggest that's the case, but in fact I
think the problem we heard being addressed was a concern that
facilities don't necessarily always meet the regulatory
requirements in their appointments.
Mrs
McLeod: I guess my concern with the definition is that
the qualifications are set out but there's no test of how you've
met the qualifications. I won't pretend to have made up the
amendment that we've proposed; it's an amendment that was
proposed by the Psychiatric Patient Advocate Office. I don't know
whether there is some form of certification that would provide a
test of those qualifications that you've just read out, but it
seems to me that if there isn't, that's a significant gap, that
the qualifications are set out but there's nobody to determine
whether the person meets the qualifications. I think as you've
read it out, just listening to it-and I didn't reference it in
the original act-it doesn't sound as though even that set of
qualifications necessarily transfers to the application of a
community treatment order because it's specifically a psychiatric
facility. There might not be a psychiatric facility involved in a
CTO.
Ms Schell:
That's quite correct, Mrs McLeod, but I think the point is that
the legislation we have now is facility-based and we do have to
put in regulations that will address this problem. I don't know
that it makes much difference to say "certified" or "qualified,"
although since I don't really understand the certification
concept, I'd have some difficulty with that.
Mrs
McLeod: I appreciate that. I'm wondering if the
government would consider a friendly amendment to its own
amendment, so that it would be "qualified under regulations,"
because there's no indication here, your amendment doesn't refer
to anything except "qualified to perform the functions of a
rights adviser under this act," but there's actually nothing in
the act that sets out those qualifications for community
treatment orders. Secondly, there is no regulation we're aware of
that sets a test for the qualifications.
Ms Lankin:
Could I ask a technical question just before we proceed, Mr
Clark? Regulation 741 in the explanation by rights advisers, the
definition that's set out there in terms of the-I guess it's not
the right section, but the qualifications or the functions. Could
you tell me what that regulation is subject to in terms of what
section of the act itself?
Ms Schell:
I'm sorry, which part? Are you referring to all of the
rights-
Ms Lankin:
Regulation 741, the section that you read out, which is part
13(6), I guess.
Ms Schell:
The rights advice provisions under the Mental Health Act deal
primarily with respect to providing rights advice for people who
have been found incapable of treatment of a mental disorder in a
psychiatric facility.
Ms Lankin:
I'm just wondering if you could actually give me the section in
the act so I can see what the wording is that creates the power
to develop this regulation.
Ms Schell:
You're looking for the regulatory authority for these rights
advisers?
Ms Lankin:
Yes.
Ms Schell:
I think Ms Hopkins is providing that to you.
Ms Lankin:
In fact, as I read this, the explanation you gave that there is
nothing that dictated an individual had to meet these
qualifications before they were being designated, what the
regulation-making power says is that there's a regulation-making
power "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 ... including"-and
there are a number of things-"(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...." That section would still prevail
in relationship to the amendment that you're proposing now.
Ms Schell:
I agree with you, Ms Lankin. The only point I was making is that
it's not flagged up front in the definition of "rights adviser."
I think I was careful to say that and to say that there was
regulation-making authority to set the qualifications.
Ms Lankin:
That wasn't a critical comment; it was a question I was asking.
Never mind, I got my answer. Thank you.
Mr Clark:
Lyn has suggested, "`rights adviser' means a person, or a member
of the category of persons, qualified under the regulation to
perform the functions ... " Is that correct?
Mrs
McLeod: This is an amendment ensuring that we can
reference back to the regulations.
Mr Clark:
We'd be willing to accept that. That's fine, a friendly
amendment.
Mrs
McLeod: I realize we can't go back and change basic
definitions.
Ms Lankin:
What is the difference between being qualified under the act and
qualified under the regulations, in technical terms?
Mr Clark:
It's both.
Mrs
McLeod: Given the clarification that you read, it may
not be necessary.
Ms Lankin:
Yes, that's what I'm thinking. When it says under the act that
now-
Mrs
McLeod: Is that a quorum call?
The Chair:
We have a 10-minute bell for a vote. If at all possible, we can
just complete the debate on this item.
Mrs
McLeod: Surely.
The Chair:
Did I take from that, Ms McLeod-
Ms Lankin:
I am more than comfortable in proceeding with the government
amendment the way it is, but I defer to Mrs McLeod and her
concern.
Mrs McLeod: If the reference that
was just offered satisfies counsel that it does reference the
regulations. Could I just ask why it's still designated by a
psychiatric facility? Is it assumed that's the only route to
qualify and therefore a psychiatric facility will continue to be
the designator of rights advisers, and does this make it
impossible to broaden that?
Mr Clark:
No, it's opened up. It's "designated by the psychiatric facility,
the minister or by the regulations." So it is broader.
Mrs
McLeod: So, "or by the regulations." OK, I'm satisfied
with that.
Mr Clark:
As originally written then.
The Chair:
Any further debate? Seeing none, all those in favour of the
amendment? Opposed? The amendment carries.
Just if I may, amendment 7
has been withdrawn.
Mr Patten:
Yes.
Ms Lankin:
I withdraw number 8.
The Chair:
Thank you.
I think in respect of the
fact that a vote has been called, the committee will recess until
3:30 next Wednesday for further consideration of clause-by-clause
on Bill 68. Thank you all.
Mr Patten:
May I ask, Mr Chair, if that precludes any other option, like
squeezing other time in?
The Chair:
Let's say that barring any other announcements or agreement by
the three House leaders, we will return here at 3:30 on
Wednesday.
