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
Ontario Review
Board
Dr Richard Schneider
Ontario Hospital
Association
Mr Bob Muir
Ms Rita Notarandrea
Ms Jean Trimnell
Penetanguishene Mental
Health Centre
Dr Russel Fleming
Ontario Federation of
Community Mental Health and Addiction Programs
Mr Harry Spindel
Mr Chris Higgins
Ms Erin
Fitzpatrick
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 Lyn McLeod (Thunder Bay-Atikokan L)
Mr Richard Patten (Ottawa Centre / -Centre L)
Clerk / Greffier
Mr Viktor Kaczkowski
Staff /Personnel
Ms Lorraine Luski, research officer, Research and Information
Services
Mr Christopher Wernham, legislative counsel, Ministry of the
Attorney General
The committee met at 1547 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 call the committee to
order on this, the final day of hearings for Bill 68, An Act, in
memory of Brian Smith, to amend the Mental Health Act and the
Health Care Consent Act, 1996. I should say it's the last day of
hearings after first reading. After these hearings conclude, we
are going to refer the bill back to the Legislature, where it
will have further debate and an opportunity for the amendments
that have been developed so far as a result of the presentations
that have been made to us to be debated, and then to go back to
committee to actually be voted on. The representatives of all
three parties have been actively developing those amendments and
trying to find areas of common interest, and I congratulate you
on your efforts to date and encourage you to keep doing more
so.
ONTARIO REVIEW BOARD
The Chair:
Our first presentation today will be Dr Richard Schneider. Let me
just allow the doctor to get seated. Dr Schneider, we have 15
minutes for your presentation, and we appreciate your coming
forward.
Mr Peter Kormos
(Niagara Centre): I just want to explain briefly that Ms
Lankin, who as you know has been with this committee since it
began considering this proposed bill, was called away abruptly on
an urgent matter. She regrets that and has asked me to apologize.
She has asked me to sit in and monitor the matters this
afternoon, and I appreciate the committee's indulgence in that
respect.
The Chair:
Thank you, Mr Kormos. You're certainly welcome at the proceedings
here today.
Dr Schneider, it's up to you
to take the whole time for a presentation or leave time for
questions if you see fit.
Dr Richard
Schneider: I was told that I had seven and a half
minutes to speak and seven and a half minutes for questions, so
I've arranged things according to those instructions.
I'll keep my comments very
broad and very general with respect to the proposed legislation
and how it affects the Ontario Review Board.
First of all, with respect to
background, the Ontario Review Board is an adjudicative tribunal
established pursuant to the provisions of the Criminal Code of
Canada. Every province and every territory must, by the Criminal
Code, have a board like the Ontario Review Board.
We are, from an historical
perspective, the new incarnation of the Lieutenant Governor's
Board of Review, and we have jurisdiction over all mentally
disordered accused from the criminal justice system; that is,
those accused who have been found on account of mental disorder
to be either unfit to stand trial, that is, incapable or
incompetent to stand trial, and those who have been, as a final
verdict, determined to be not criminally responsible on account
of mental disorder. The old terminology was, "not guilty by
reason of insanity."
At present the Ontario Review
Board holds in excess of 1,200 hearings a year throughout the
province in respect of close to 1,000 mentally disordered
accused. In the past 10 years our numbers have been increasing by
an alarming minimum of 10% per year. This is juxtaposed to, over
the same period of time, the number of criminal prosecutions
actually decreasing. A large proportion of this increased volume
is made up of accused who have committed relatively minor
offences. Most of these people, from our perspective, are best
thought of as having primarily mental health problems rather than
criminal proclivities. Most have extensive psychiatric histories
by the time they come to the Ontario Review Board.
Boiling that all down, what
you might say is that we as a society have been, in other words,
criminalizing the mentally ill. The review board believes that
mental illness should be treated civilly and by mental health
care facilities rather than criminally and by jails and the likes
of the ORB. We are not looking for more business.
The ORB applauds Bill 68 in
that it is seen as an improvement to the mental health
legislation. The changes
will make the legislation more effective and more flexible. It is
anticipated that fewer mentally disordered accused will end up
leaking out of the civil system and into the criminal courts as a
result of this more comprehensive legislation. Apprehension can
now be based upon reasonable and probable grounds rather than
observation. That had been a primary stumbling block with present
legislation in that unless a police officer had actually observed
the mentally disordered person behaving in a way that was
disorderly, apprehension could not be made and as a result the
police would resort to the less desirable option of arresting the
individual and charging them often with a very minor criminal
offence, bringing them through the gates of the criminal justice
system and potentially into the jurisdiction of the Ontario
Review Board.
With respect to community
treatment orders, we believe community treatment orders will
simply add another tool to the clinician's array of treatment
options. They will allow for the treatment of an individual in
the community who would otherwise require hospitalization. From
our perspective, CTOs should be embraced by civil libertarians,
not rejected. The CTOs should be available, from our perspective,
as well to first-time customers.
Once in the criminal justice
system, it is expected that community treatment orders will allow
more of our accused to be placed into the community rather than
detained in valuable forensic hospital beds. Once an accused is
subject to our jurisdiction, we have an option to discharge an
accused subject to conditions from hospital or detain them in the
custody of a hospital. With the availability of a complementary
CTO regime, it's anticipated that more of the people who are
presently occupying hospital beds could be placed into and
monitored in the community.
Very briefly and very
generally, those are the submissions of the Ontario Review Board
with respect to the proposed legislation.
The Chair:
Thank you very much. Our leadoff question will come from the
Liberals.
Mr Richard Patten
(Ottawa Centre): Thank you, Dr Schneider, for being here
today. My question has two parts to it. First, given that you are
suggesting that the greatest increase in the volume is made up
with-you used the term-minor offences, I wonder if there is a
solution that you might have to propose. Second, given that this
bill primarily deals with a new mechanism called a CTO or a CTA,
whatever you want to call it, and there is a role for the board
in that which may add additional pressure to what you are saying
is a fairly heavy workload, what is your response to that in
terms of the role, and as you read the legislation, what is the
reception of the pressures that that will add to your
workload?
Dr
Schneider: If you could take me back to the first
question, I'm sorry.
Mr Patten:
The first question was, is there a way of dealing with the minor
offences? That seems to be where the increase is.
Dr
Schneider: This problem is being attacked on a number of
fronts. The primary example that has been put into place in the
last few years is the diversion program, which is part of the
crown policy manual on the Attorney General's side of things.
That's an attempt to divert out of the criminal justice system at
first instance accused who have been charged with relatively
minor offences. While that is obviously helpful, there are still
a large number of people coming into the Ontario Review Board
system having been found unfit to stand trial or not criminally
responsible in respect of relatively minor matters. We don't see
that the CTO legislation will add anything to the business of the
Ontario Review Board. What one might expect is that it could add
business to the Consent and Capacity Board on the civil side,
which would assume carriage of this legislation if it were to be
proclaimed.
Mrs Lyn McLeod
(Thunder Bay-Atikokan): One of our concerns around the
committee table has been the extent to which we criminalize the
mentally ill because we just don't have appropriate treatment
resources for them, either in the community or in terms of beds
so they could be admitted to a facility if that's needed. So we
would share your hope that this is going to make a difference in
terms of getting appropriate treatment for those whose primary
problem is mental illness.
The community treatment order
is new ground for us. One of the things we're struggling with a
little bit is the population we can reach and be most helpful to
with community treatment orders. There is a very significant onus
of responsibility on the physician who signs a community
treatment order to ensure that the appropriate treatments are in
place. My question for you would be, given the experience you
have on the Ontario Review Board, would you have any concerns
that there could be inappropriate use made of community treatment
orders in the sense of even having people who were not amenable
to this kind of community treatment and who could potentially be
dangerous having this offered to them as an alternative to being
in a psychiatric facility?
Dr
Schneider: I guess what you're asking is two things.
One, would the implementation or the proclamation of the CTO
provisions somehow expand the sorts of people who would be
gathered up under the legislation? With respect to that aspect of
your question, I don't think so. The certification criteria will
remain static. From our perspective, this simply equips the
physician with another tool with which he might respond to the
same problem that under the present regime he would really have
to hospitalize.
The second part of your
question I take to be, would the CTO scheme invite physicians to
put into the community people who really should be in hospital?
Again, I really can't speak to that too well other than to assume
that the physicians who are going to be using this legislation
will be approaching it in a bona fide way. I wouldn't like to
think that's a possibility, but I understand why you would ask
it.
Mr Kormos:
The Ontario Review Board operates under the auspices-I appreciate
the jurisdiction is from the code-of the Ministry of Health?
Dr Schneider: That's right. In
other words, the board, within each province and territory, has
to be provincially funded. In Ontario, it's funded by the
Ministry of Health; in other jurisdictions, it's the Ministry of
the Attorney General. I can't think of whether there's another
ministry that might have picked it up in other jurisdictions, but
that varies from province to province. It is a Ministry of Health
tribunal.
Mr Kormos:
Is it fair to call it a quasi-judicial function?
Dr
Schneider: Yes.
Mr Kormos: I
don't quarrel with your right to be here, but how is it that the
review board, funded by the Ministry of Health, with its
jurisdiction coming from the Criminal Code, performing a
quasi-judicial function, how is it that you're here-and again,
I'm not disputing your right to be here-speaking for the Ontario
Review Board with respect to clearly a legislative endeavour and
a new policy direction? How did that come about?
Dr
Schneider: The Ontario Review Board sees, as a major
contributor to its increased volume, leakage out of the civil
mental health system. The proposed changes to the legislation are
viewed by the review board as measures that will tighten the net
or make the legislation more effective so that people will be
dealt with as they should be on the civil side of things by
mental health facilities and there is less chance that they will
end up, through misadventure or whatever, getting caught up in
the criminal justice system. So our interest is that this is
legislation that could hopefully reduce our numbers.
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Mr Kormos:
Fair enough. You're speaking for the collective now, is that
correct?
Dr
Schneider: The collective?
Mr Kormos:
Well, the review board.
Dr
Schneider: I'm speaking actually technically, I suppose,
for myself and the chair of the Ontario Review Board. The review
board itself, besides the administrative offices, is a bunch of
psychiatrists, lawyers and retired judges who contribute time on
a part-time basis.
Mr Kormos:
Again, I'm not being argumentative, I just want to make that
clear. So you're here on behalf of yourself and the-
Dr
Schneider: The chairman of the Ontario Review Board.
Mr Kormos:
So the various people who sit on these adjudicative panels
weren't party to this proposal?
Dr
Schneider: They haven't been formally canvassed, no,
although I can tell you that if they were to be polled, their
sympathies would be very much in accord with what I'm relating
today.
Mr Kormos: I
suppose maybe they should have been polled.
Dr
Schneider: Perhaps.
Mr Kormos:
Thank you very much. I appreciate your time.
Mrs Julia Munro (York
North): Thank you very much, Dr Schneider, for coming
here today. I want to follow up on one of the comments you made
towards the end of your presentation where you referred to the
community treatment orders as simply another tool. I'd like to
focus on that, because many of the people who have made
presentations to us have indicated a concern about the potential
power of that tool. Given the experience you have in sitting on
the review board, it seemed to me that you might be able to offer
us some kind of comment or suggestion with regard to allaying
those fears.
Dr
Schneider: I understand the other perspective. I've
heard it, of course, many times before and I understand it. It's
just that I think in order to have those fears, you have to
ascribe quite malevolent intentions to the people managing this
legislation. The certification criteria will remain static
whether you're in hospital or out of hospital. The question is,
can a person be managed on an out-of-hospital basis? From that
perspective, it seems to me to be a vehicle to take an individual
who under the present scheme would have to be hospitalized and
allow that individual to be treated in the community. So from a
disturbance perspective, it's the least intrusive method of
accomplishing the objectives of the legislation.
The Chair:
Thank you, Dr Schneider. We appreciate your bringing the unique
perspective of the review board before us here today.
ONTARIO HOSPITAL ASSOCIATION
The Chair:
Our next presentation will be from the Ontario Hospital
Association. Would the representatives come forward. Good
afternoon and welcome to the committee. We have 20 minutes for
your presentation. It's up to you to divide that and allow time
for questions and answers if you see fit.
Mr Bob Muir:
Good afternoon. My name is Bob Muir, and I'm the Ontario Hospital
Association vice-president and chief operating officer. With me
today is Rita Notarandrea, who is the assistant executive
director of the Royal Ottawa Hospital in Ottawa, and Jean
Trimnell, who is a consultant who works with us and a member of
our mental health working group. I'll just say a few things and
then answer questions if there are any.
The OHA, which represents the
province's hospitals and actually has as members all of the
psychiatric hospitals, even though they are still provincial, has
prepared a written submission based on the expertise of Rita and
other members of our mental health working group. That document
has been provided to the members of this committee, along with my
remarks. My comments will be brief because there may be other
technical issues in the document, if you read through it quickly,
which you may want to ask us about.
We understand that the intent
of this bill is certainly to enhance the protection under law for
people with serious mental illness, as well as for the protection
of the public.
The OHA believes that
broadening the criteria for detaining and assessing individuals
who appear to be at risk of harming themselves or others and
broadening the criteria for involuntary committal will facilitate
earlier intervention and,
we believe, better outcomes for individuals with a history of
severe mental illness.
We also believe that the
bill, of course, introduces community treatment orders to
Ontario's mental health system so that individuals can receive
treatment in the least restrictive setting. We believe that CTOs
are intended primarily for use with a small, well-defined
population. Severe mental illness affects about 75,000 people in
this province, about three quarters of 1% of the residents. Much
of Bill 68 is geared to meeting the needs of this population, and
OHA supports that goal. However, at the same time, in no way
should this be construed as any endorsement-obviously, it
wouldn't be-of some broad instrument of social control.
OHA is broadly supportive of
this legislation. It is always difficult, we understand, to
balance individual and collective rights. We've been at this for
some time now, even before the charter. I can remember when I was
in Manitoba, almost 30 years ago now, the legislation we
introduced that dealt with the delicate balance between
collective and individual rights and the whole issue of what
constituted an imminent danger. Thirty years later we're still
dealing with this, and maybe 30 years from now we'll still be
dealing with it, but we have to make some progress.
The bill itself endeavours to
ensure that a person with serious mental illness receives
psychiatric treatment in a less restrictive setting than a
psychiatric hospital or a schedule 1 service of a public hospital
when practical, and we support this intent.
The implementation and
application of legislation is obviously spelled out in
regulations, and this won't be any exception, so we want to
participate in the development of those regulations. However,
there are some elements which I want to talk about that should be
enshrined in the actual law itself. This, for us, is particularly
important.
The issue of accountability
for individuals who come under the jurisdiction of CTOs is
paramount to the effectiveness, we believe, of this legislation.
CTOs, as you know, can be initiated either by physicians in the
community or in the hospital. When initiated from the hospital
setting, the current wording of Bill 68 is ambiguous as to
whether a person under a CTO is technically a hospital patient or
not, and in our view this point should be clarified before third
reading. It may be that the answer to this question varies
according to the concept of the "most responsible agency," a
concept similar to that of the "most responsible physician."
It is unclear whether a
person under a CTO should be considered a hospital outpatient or
a consumer obtaining services in the community. The answers to
these questions will vary, but in the hospital context there are
serious implications for us in terms of liability,
confidentiality of patient records, and other issues.
Bill 68 does not delineate a
clear process for moving a person who is assessed in a hospital
to receiving treatment in the community under a CTO. Such a
process should be clarified before the bill becomes law.
Therefore, the most important issue from a hospital perspective
is the relationship of a person getting treatment under a CTO to
the hospital. This is important for a variety of reasons,
including establishing responsibility and accountability for the
vulnerable populations with serious mental illness.
Most of my comments from now
on will be fairly technical and dealing with specific sections
and clauses of the bill.
We would like to see the
definition of "mental disorder" refined, and we discuss that in
our presentation.
We see a greater demand for
the services of rights advisers under the proposed amendments,
and a new role for them in the community as opposed to strictly
in institutional settings. We stress that rights advisers must be
given adequate resources to meet the challenges they will face
with this population.
We would also like to see
evidence used as criteria in the decision-making process related
to assessment and involuntary admission. We believe the criteria
for CTOs should explicitly include previous non-compliance with
treatment regimes.
We would like clarification
of when it is appropriate to use institutional leaves of absence,
which are available under current legislation, as opposed to
CTOs, which are introduced through this legislation.
Details of this discussion
are available in our written submission.
In conclusion, Bill 68
appears to offer certainly the potential for earlier intervention
and treatment of people with serious mental illness. While we
support this direction, we caution that there are details which
must be, as I'm sure you know from other presentations, resolved
before the legislation is practical.
1610
I have not raised the
fundamental issue for hospitals, which I think goes without
saying, that none of this should be introduced without some base
understanding of the financial condition of hospitals and their
capacity to deal with the impact. This isn't to say that it has
to be exact, but hospitals in this province are dealing with a
whole range of issues these days and I think we have to ensure,
not only for hospitals but for the rest of the system, that the
resources will be there to make sure the legislation can truly be
effective.
We look forward to dealing
with the rest of the legislation and advising on regulations.
Thank you.
The Chair:
Thank you very much. You've allowed us about four minutes per
caucus for questioning. This time, we'll start off with Mr
Kormos.
Mr Kormos:
Thank you very much. I read the OHA written submission, which I
trust is joining with you. I'm interested in the aspect of rights
adviser. We used to have an advocacy office in the province of
Ontario, until around five years ago, that advocated for people
who were being confronted by institutions. You talk about that as
an important element, the rights adviser. Are you also saying
that there should be access to a rights adviser at the very outset, for instance on
apprehension by a police officer?
Ms Rita
Notarandrea: Two issues related to that. First of all, I
think you're referring to the Advocacy Office, the PPAO system,
which is still in place and primarily associated with the PPHs.
Other hospitals with psychiatric services also have rights
advisers, which means that when people do come in on involuntary
committal, a rights adviser goes to them and tells them what
their rights are. Therefore, they could be seen by a review board
if they disagree with the committal. So that exists already. Both
of those are associated with hospitals. Community treatment
orders are for people who are in the community, and therefore
what we're suggesting is that rights advisers should also be
available to those in the community, not just to those in
hospitals.
Mr Kormos:
I'm trying to identify with this. I'm thinking about being picked
up by a police officer and taken to a hospital because the police
officer uses "reasonable and probable grounds." Wouldn't you
extend my right to an advocate to that stage of the process as
well?
Ms
Notarandrea: Are you saying, should we not be
recommending that, or is that what currently exists? Right now,
what exists in terms of rights advice under this legislation is
only if you do not consent to treatment and if there is an
involuntary committal.
Mr Kormos:
But you're talking about merely an adviser as compared to an
advocate?
Ms Jean
Trimnell: The other thing to add is that this
legislation directs that people who are going to be put on a
community treatment order would have access to rights advice and
there's the situation where that could be occurring in the
community. Currently, there are not rights advisers in the
community setting. We were just highlighting the point that that
would need to be well resourced, that we couldn't be looking to
the existing system to take on this additional expectation. But
we support the intent that people would have access to rights
advice.
Mr Kormos:
I'm coming from the perspective-the last submission was the
reference to being picked up by the police and being thrown into
the criminal justice system. But at least there I have a right to
a lawyer-do you know what I mean?-who can advocate for me from
minute one, from the minute I'm apprehended. I'm concerned-and
maybe I'm dead wrong; tell me-that here there's a rights adviser
but if I don't have somebody to advocate for me, those rights are
unenforceable. It's rights without a remedy. That's my
problem.
Mr Muir:
Aside from that issue, I think all we're saying is that those
people who are in the community under some sort of treatment
order have all the rights and privileges that patients do when
they are detained involuntarily in a hospital.
The other issue is with
respect to whether individuals have rights advisers at the point
at which they're detained by police. They don't now; they're
simply detained. That's a separate issue and I guess it's
debatable, but probably impractical.
Mr Kormos:
Thank you, folks.
Mrs Munro:
Thank you very much for coming here today. I want to ask you
about a suggestion you make on page 8, where you ask that you'd
like to see the definition of "mental disorder" refined. Perhaps
it's in the package you've provided for us, the specifics?
Mr Muir:
There's a section in the package that deals with exclusions and
so on.
Ms
Notarandrea: There's a section in the package on page 2
that elaborates on exactly what we're suggesting for that. It
says, "any disease or disability of the mind," which is what you
have, and then we elaborate, "that results in ... " and we
describe the type of patient this Mental Health Act is referring
to and therefore excludes others; for example, those suffering
from Alzheimer's and acquired brain injury with no behavioural
issues being displayed. We were trying to refine this Mental
Health Act and what population it refers to.
Mrs Munro:
If I could squeeze in another one, because you raised acquired
brain injury, we heard the argument earlier in our public
hearings that leaving that group out created some problems. I
wonder if you could comment on that for us.
Ms
Notarandrea: My understanding when they presented was
that they said they are acquired brain injury and they certainly
wouldn't expect every single brain-injured client to be
represented by this act but those clients who are presenting with
serious behavioural issues. We're not excluding that population;
we just didn't want to be over-inclusive in terms of the Mental
Health Act.
Mrs Munro: I
certainly appreciate that, because from my point of view as a
member of this committee, that has been an area of concern, that
it be the right group of people, obviously. I was particularly
caught by the fact that that group came and talked about problems
they had experienced within their community, so I appreciate your
comments on that issue.
Mrs
McLeod: I have two very different questions, and I'll
just place them and ask you to respond. The first is one that Mr
Muir began to allude to at the end of his remarks, and that's the
facilities in hospitals, the adequacy of resources in hospitals.
The OMA expressed the hope when they were here that the CTOs
would reduce the need for mental health beds in hospitals. The
community psychiatrists were very concerned that this legislation
may increase the demand on community hospitals for psychiatric
beds, and said they couldn't meet the need now.
I guess my extended concern
then is that after six of nine psychiatric hospitals are closed,
the only beds for people who are acutely psychotic and have to be
admitted will be in community hospitals where there isn't a
psychiatric facility remaining, because there are forensic beds,
there are psychogeriatric beds and then there are the beds in
community hospitals. One of the concerns we've heard is that if
you're in an acute psychotic state and have to be admitted or readmitted, it could
typically be for as long as three to five months. My concern is,
is that even an appropriate place for that individual to be?
That's one question.
The second is more
technical and it's the fact that on page 3 of your package you've
raised concern about the need for reissuing a CTO or issuing a
CTO, that the individual should have shown evidence of
non-compliance with prescribed treatment. I guess I thought that
was inherent in the criteria for the CTOs, and I'm wondering who
you felt might be inappropriately given a community treatment
order without that further clarification.
Mr Muir:
Maybe I can answer the first question, and that is to say that
not all psychiatric hospitals in the province-I'm sure you know
this-are being closed. There will be Whitby and a number of them
that will remain open. Aside from that, we're in negotiations
right now. We have a provincial table between the government and
ourselves in seven receiving hospitals that will receive the
patients from all of the psychiatric hospitals that are
closing.
We have not settled on the
number of beds, but I can tell you that if we follow the
commission's directions we will reduce beds, and that is an issue
of some debate right now. So the issue of the sizing of the
system hasn't been completed, and the transfer of beds from the
receiving hospitals, which are the new psychiatric hospitals with
a higher level of psychiatric facility, to schedule 1 services
hasn't been worked out at all.
I'm not criticizing; I'm
just saying we're going through an extremely complex process that
other provinces have taken years to do, and we're trying to do it
in a very short time period and we haven't figured it out yet.
That's the system within which we're putting these other pieces.
So the answer to your question, I think the honest one, is we
don't know. If anybody says they know, they don't know, because
the fact is that we have the system in some flux at the
moment.
1620
Mrs
McLeod: I guess my plea is that it's not just a sizing
issue, it's an appropriateness issue; in the northwest, for
example, where there will be no facilities.
Mr Muir:
Absolutely. With or without CTOs, mental health beds in the
province are under huge pressure because in many cases hospitals
are balancing their budgets and beds are being reduced. We don't
encourage that but that is a fact, and we have to be cognizant of
what's happening in mental health. To give the government credit,
they have been putting more money into the system, but it is a
system that at the moment is pretty fragile and under a huge
amount of change. I guess that's really all I can say, because
that's the type of system within which we are introducing these
changes. I'm not saying you shouldn't introduce them, but you
have to be very careful that you understand that and, secondly,
that you resource it appropriately to meet your objectives.
Ms
Notarandrea: It's also a system that's very much
dependent on the increases in community services. As those PPHs
are closing, there is, you may have heard, a comprehensive
assessment project that occurs and that assesses all the patients
within those PPHs and makes recommendations as to what the
services ought to be in the community before any of those beds
are closed. So the assumption within the system is that those
community services will be put in place before the PPH is
closed.
Ms
Trimnell: Perhaps I will answer your last question. I
agree. I think it's implicit that the group that is being
targeted is likely those persons with serious mental illness with
a history who have not complied with their medication. We felt it
might be helpful to simply make that explicit in the legislation,
because otherwise it's just implicit, it's not up there front and
centre. That would also maybe assist with some of the concern
around ensuring that the targeted population is quite narrowly
defined.
The Chair:
Thank you very much for taking the time to come and join us and
making your presentation. We appreciate it very much.
PENETANGUISHENE MENTAL HEALTH CENTRE
The Chair:
The next presentation will be from the Penetanguishene Mental
Health Centre, Dr Fleming. Good afternoon and welcome to the
committee. We have 20 minutes for your presentation, sir.
Dr Russel
Fleming: Good afternoon. It's particularly helpful to be
invited here on a day when the Blue Jays are in town for an
evening game.
I have two documents that I
think you have. One is more or less an outline of what I'm going
to say. The second one is a copy of a publication from the
American Journal of Psychiatry of December 1999 which pertains
directly to research in relation to the benefits of community
treatment orders and what makes them work and not work. I'll get
to that shortly.
I'm a psychiatrist and I
will be one of the clinicians attempting to make use of this new
tool if it comes to pass. I hadn't thought of it as a tool
exactly, but I suppose it is in a sense. I'm also one of the
clinicians who looks after some of the people subject to Criminal
Code disposition orders that Richard Schneider was referring to a
few minutes ago. So I have a sense of how both parts of this
system work, or perhaps in some ways, as he was suggesting, don't
work too well at the moment.
There seem to me to be two
major aspects to this proposed legislation. The community
treatment orders seem to be getting the most attention, but I
think the expansion of the civil commitment criteria is equally
important, perhaps even more important, although it may be
overshadowed by the community treatment order discussion. I don't
intend to say much about the civil commitment issue. I happen to
be entirely in agreement and supportive of that part.
My initial reaction to the
community treatment orders, however, was that it's quite
complicated and I wonder what will actually motivate clinicians
to attempt to make use
of it, particularly if it appears to require additional effort to
organize and carry out. There will of course be additional
hearings before the Consent and Capacity Board, in addition to
those that we all attend virtually every week.
On closer examination,
though, I think the legislation is well thought out to fit in
with our historic approach to mental health legislation in this
province, and I think it could work for certain kinds of clients
in certain circumstances, which I'll speak to in a minute.
I was a little distressed
when I first read this thing, as I've described in the next
paragraph, on page 2. I read the criteria where it said you have
to have three admissions in two years. Well, I've got a short
list of people who have been continuously hospitalized for more
than three years, and some of them considerably longer, and my
first reading of that was that, by a quirk of wording, my list of
guys wouldn't have an opportunity to take advantage of this. But
then I read it again, and I think it's disjunctive. I think
there's an "or" in there which separates off the two admissions
from the other part. Anyway, lawyers have a way with words that
sometimes confuses those of us who look at the world from other
perspectives.
Turning now to more
important things, in reference to this paper of the American
Journal of Psychiatry: This publication reports on a study in
which involuntarily hospitalized patients were assigned randomly
to two groups and were treated on an in-patient basis, one group
simply discharged in the normal way and the other group
subjected, I guess you'd say, to the community treatment order
provisions. The results were that to be clearly effective, the
outpatient commitment had to be sustained beyond the original
time limit. It has to go on for a while, I think is the message;
six months to a year is not unreasonable to think of, just as a
starting point. However, it did result in fewer readmissions, by
a fairly substantial margin, and fewer hospital days,
particularly for people who have what they refer to as
"non-affective psychiatric disorders," and I think what they mean
by that is largely people with a diagnosis of schizophrenia.
More importantly, and I put
this in bold type because I think this is one of the main issues
here, their other conclusion was "that sustained outpatient
commitment reduced hospital admission only when combined with a
higher intensity of outpatient treatment."
That shouldn't be a
surprise, I suppose, in a way, but it does beg the question of
whether the orders themselves were the issue, whether they
actually made the difference, or whether it was simply due to the
additional effort and attention that the order mandated or
brought about; and then a new question, whether we could achieve
basically the same thing if we just upped the level of
appropriate support and attention that we provide to people in
the community.
As an aside, those people
Mr Schneider was referring to, who are held under Criminal Code
disposition orders, when they make it to the community, they do
receive that additional level of support and extra treatment
because it is mandated in terms of a disposition order. They, for
the most part, do passingly well, even though they have, in large
part, exactly the same kinds of disorders and problems that the
other group, who have never found their way into that system,
have as well.
I think all of that remains
to be seen. However, the importance of the resource issue, in
order to even give this a try, is crucial. In our own situation,
and this may or may not be typical across the province, some of
our in-patient programs at the moment, particularly acute care
where most of these people would be or pass through, and forensic
care have been occupied at above 100% capacity now-particularly
in the case of the forensic service, for more than two years we
have not been below 100% capacity in that program. Well, how do
we do that? We add one more and then another one and then another
one, and we add nursing staff, if we can find them, as needed. We
survive with 23 and sometimes 24 patients in a 20-bed unit.
In our outpatient service,
our case managers in that program have individual caseloads above
30 clients at the moment, when around 20 as a maximum is thought
to be a reasonable caseload.
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This isn't meant to be a
whine for resources, but I'm wondering, in terms of the community
treatment orders, who is going to have the time and energy to
undertake the organization of community treatment orders, and who
is going to provide the higher intensity of treatment involvement
that the research paper I am quoting from says is going to be
necessary for it to make any difference? On the other hand, if
community treatment orders fail in individual cases-and they may;
they don't necessarily always succeed-if readmission is required,
how will that be accomplished in in-patient programs that are
already chronically full? Based on what we know so far, I don't
think community treatment orders will suddenly produce an
emptying of in-patient beds. They may, in time, produce some
softening of the situation, because our readmission rate should
go down in the first year or two once we undertake this process,
but there will be that kind of time lag, at a minimum, before we
begin to realize that benefit.
Since I had the opportunity
to come here, I have a couple of other suggestions about how we
might save some time. Some of the clinicians, when they knew I
was coming here, made sure I mentioned this one, and this is in
regard to the use of form 1s by some of our sister facilities,
particularly non-schedule general hospitals. They tend to see
that word "forthwith" in the legislation, in clause 15(5)(a), as
a licence to send people in 20 minutes over to our doorstep, no
matter what their condition, whether we have a bed or not. It's
convenient for them to take the position that they have no other
choice legally but to do that.
It would be helpful to us,
when our acute care unit is already three over count on a
Saturday night or a Sunday morning, if the law allowed a little
bit more specifically for some degree of negotiation, maybe by
taking out the word
"forthwith" and stipulating that a short period of detention in
the referring facility is reasonable and legal while arrangements
for the transfer are actually negotiated. The current law in fact
does say that an application has a life of seven days from the
day it is signed, but when convenient, people in the general
hospitals who are sending people to us look right by that phrase
to the word "forthwith" and the ambulance is on the way.
The second suggestion I
have, for what it's worth, pertains to the duration of form 4s
under the Mental Health Act. At an earlier time in history, form
4s could actually cover a period of time of up to six months, and
then up to a year, for people who were obviously going to be in
hospital for quite a long stretch. I think that was a result of
changes back in the 1970s and 1980s, but I wonder if it's time to
recognize what an enormous waste of resource this is for us. I
think the current record holder at our hospital has had 80
consecutive form 4 renewals and about the same number of Consent
and Capacity Board hearings, which require two hours of the
clinician's time and all the members of the C and C board to show
up, when everyone in the room knows exactly what the result is
going to be because it's been the same result the previous 79
times. If we had a slightly longer interval to work with, we
could save an enormous amount of that resource. That's one of the
places we could get resource to actually focus on something like
community treatment orders. I just mention that in passing as
something we might want to consider.
Finally, about the civil
commitment test: The much-maligned word "imminent" appears to be
on the way out. There's been more debate about the meaning of
that word inside C and C board hearings and outside than you can
imagine. It will help if it goes. More importantly, I think
section 15(1.1) is a creative compromise in terms of broadening
the civil commitment test just enough to allow for the admission
and the management of some people who might have otherwise been
questionable in terms of meeting the former civil commitment
test.
On a positive note, in the
last five years or so we now actually have some treatments that
are sufficiently improved over times prior that we can say to
people who are candidates for community treatment orders, "We
have some medication for you that won't do what medications
always traditionally did," that is, make your vision blurred and
make you stiff and make you feel drowsy and doped and all those
things. Some of the newer medications do allow a much higher
level of comfort and, at the same time, effective control of
symptoms as well. That is a hopeful development, the most hopeful
development certainly in the time of my career.
I'm going to stop there
because I'm running a little bit over the time.
The Chair:
Thank you, Doctor. That leaves us about eight minutes in total
for questions. We'll divide it among the three parties, leading
off with Mr Clark.
Mr Brad Clark
(Stoney Creek): I appreciate your coming today,
Doctor.
There was a study, An
Exploration of Outpatient Commitment's Impact on Vicitimization
of Persons with Severe Mental Illness. That paper was published
by the American Psychology and Law Society. There was a quote in
there: "A North Carolina study of 184 subjects in a randomized
controlled trial of persons with diagnoses of schizophrenia,
schizoaffective disorder, other psychosis, or a major affective
disorder found that increased days on outpatient commitment
significantly reduces the odds of victimization."
Victimization of the
mentally ill is something I've raised a number of times in the
hearings and in the consultations. It's a concern of mine. This
study would purport that community commitment, or in this case
community treatment orders as being proposed under Brian's Law,
drastically reduces the odds of victimization. Do you share that
opinion, or do you have concerns about that statement?
Dr
Fleming: I wonder if you can clarify what you mean by
"victimization."
Mr Clark:
Victimization of the mentally ill out in society, on the streets,
whether they're assaulted-they become victims themselves as a
result of being mentally ill.
Dr
Fleming: It probably does, because when people would be
in the community on community treatment orders, they're more
likely to be stable and doing well in terms of symptoms. When the
mentally ill get victimized in the community, it's often because
their symptoms are not, at that moment, under control, and
they're saying and they're doing kind of bizarre things, at the
least, or perhaps they're behaving more aggressively, so that
other people retaliate in their direction. That's one of the
criteria that we've often used under the third part of the
current civil commitment test to keep people in hospital: that
they're so intrusive with their illness that they're going to go
out into the community and irritate people to the extent that
they themselves will be assaulted.
Mr Patten:
Thank you, Dr Fleming. I think most of the committee members have
identified, and we've heard from numerous witnesses, that this is
not going to work unless you've got the adequate resources
available; and, of course, the worry that if, as you suggest, the
literature shows that it can be effective in reducing some
hospital admissions, but only with intense outpatient treatment,
that ups the ante in terms of resources, as well. When you
identify, albeit you're in an acute care hospital, that your
outpatient case managers have 50% higher caseloads than what they
should to be effective, then I guess you're saying, "Listen, if
you don't have the resources, you'd better think twice about
this."
But given that the
resources indeed are there, and there is a commitment by the
government to do this, this might answer the question of the
previous delegation, and that was, where does the ultimate
accountability lie? It seems to me that it does lie with the
hospital, the attending physician in a hospital, by and large.
Would you read it that way?
Dr Fleming: I think these orders
will largely begin in in-patient settings. I'm already thinking
about our own hospital, in terms of how I think we'll tie our
in-patient service even more closely with the community support
team. They're going to start in hospital with an in-house doc
that signs the order, as I read it, but it's going to be an
outpatient follow-up team that's going to be named in the
community treatment plan which has to carry it out, which has the
responsibility for that. Those people are going to have to not
only talk to each other, they're going to have to be very much on
the same page in terms of how people are doing. We do some of
that to a certain extent now, but I think it's going to have to
be a joint effort between the in-patient origins and the
outpatient support team for sure, or it has very little
likelihood of succeeding.
Mr Patten:
In your case, of course, you receive a number of forensic cases.
One idea that the committee is examining, and there are probably
some amendments that will be proposed, is the term itself.
Whereas the roots of the history of CTOs is a court-legal system,
this is really a medical plan, albeit it does have some
accountability and some teeth to it. But it is a medical plan,
maximizing the opportunity for it to be consensual, so our
discussion is to look at a change of the term, because "order"
seems to imply a correctional kind of forensic arrangement, which
certainly scares off a number of people, externally and maybe
patients likewise. We're looking at the term "community treatment
plan" or "community treatment agreement." What would your
response be to that?
1640
Dr
Fleming: I don't have a problem with that. I think where
this kind of thing may be most useful is in fact in cases where
the patient is not capable of consenting and a substitute
consenter is consenting to the community treatment plan or order.
That's where I think it'll be most useful.
As I've said, I have a list
of people who I think can be in the community with that kind of
arrangement, who haven't been in the community in the last three
years at all, notwithstanding the other candidates who may-we
know we have a small group of revolving-door people who have on
average about three admissions a year, every time their bipolar
disorder relapses. I think it'll be useful for that small group
of folk as well. They may be a little more problematic in that
many of them when they are well are perfectly capable-at least on
the surface of things-of making the right judgments about their
treatment, until the day they decide not to and then things may
go downhill.
I don't care what it's
called. In its present form, it's not really an order, not in any
sense an order like a Criminal Code disposition order is a very
powerful order. People often complain about the open-endedness
and the ongoing intrusion of that in their lives.
Mr Kormos:
I hope I'm not using inappropriate language, but you mentioned
new treatments-and I presumed you were talking about
schizophrenia, perhaps other disorders as well-over the course of
the last five years. I wonder if you could elaborate for us a
little bit on what you were speaking of.
Dr
Fleming: I'm speaking mainly about the atypical
neuroleptics. We have medications now that are vastly superior in
terms of the side-effect profiles. They are comfortable for
people to take. If anything, some of them are more effective in
terms of simple control because they deal, at least a little bit,
with negative symptoms as opposed to just acute symptoms, say, of
schizophrenia. We have people living in the community on some of
these new medications who haven't been in the community for a
long time because they never could get comfortable or never were
successfully treated with some of the older medications. More of
those medications are coming in the future. There's some fairly
intense interest on the part of drug manufacturers in a race to
provide the nest generation of this kind of treatment.
Mr Kormos:
You were speaking, I think, of bipolar disorders when you talked
about the treatment being effective until the day comes when the
person decides to stop taking their medication.
Dr
Fleming: Yes.
Mr Kormos:
Is there anything about the nature of the medication? Does it
create a disincentive to take it? I'm not being as clear as I
want to be.
Dr
Fleming: Certainly some of the old medications did,
because they were uncomfortable. Almost no one escaped side
effects with some of the older neuroleptics. Some of the new ones
are much more reliable in terms of people continuing to take
them. But in certain disorders, people just get feeling so well
that they don't see the point any longer in medication or they
like to think they can live their lives without the medication;
or in the case of affective disorders, sometimes when people's
moods start to run a little bit high, that's actually something
they really like. They want to recapture the natural high of a
mania and so they may stop the medication for that sort of
purpose, and then they do get high.
The Chair:
Thank you very much, Doctor, for coming before us here today. We
very much appreciate your taking the time to make a
presentation.
ONTARIO FEDERATION OF COMMUNITY MENTAL HEALTH AND
ADDICTION PROGRAMS
The Chair:
Our next presentation will be from the Ontario Federation of
Community Mental Health and Addiction Programs, if they could
come forward, please.
Good afternoon and welcome
to the committee. We have 20 minutes for your presentation. If
you so desire, you can leave time for questions as part of
that.
Mr Harry
Spindel: Thank you for giving us this opportunity to
provide some input into this very critical legislation.
The Ontario Federation of
Community Mental Health and Addiction Programs, the federation,
is a non-profit organization representing 230 community mental
health and addiction programs across Ontario. Its members
represent the majority
of all community mental health service providers in the province
from Kenora to Cornwall.
The federation acknowledges
the efforts of this government to improve mental health services
in Ontario. This has taken the form of additional funding for
housing for homeless people who have a mental illness, additional
funding of the highly specialized assertive community treatment
teams and this legislative initiative.
The federation also
acknowledges the difficulty of the matters embodied in the
legislation proposed. The many unmet needs of people with mental
illness are undeniable. The distress of families and their desire
that their family members with mental illness are well cared for
must be respected. The safety of people with mental illness and
our communities is a matter of legitimate concern. We wish to
assure the committee that Federation members have, both
professionally and personally, the earnest and sincere desire to
meet these unmet needs, expand our ability to provide
high-quality care and provide for the safety of all concerned.
The Ontario Federation of Community Mental Health and Addiction
Programs strongly believes that the best way to accomplish these
goals is to improve the community mental health system. We do not
support the enactment of Bill 68 as it is currently
constituted.
The Ontario Federation of
Community Mental Health and Addiction Programs believes that the
current Mental Health Act achieves a reasonable balance between
the rights of the individual and the rights of the community.
Specifically, we do not support changes to the grounds for
involuntary committal, the enabling of community treatment
orders, the conditions regarding when involuntary treatment may
and may not be provided and changes to the law of consent.
We recognize that the act
has often been misunderstood and misapplied-as it is today-which
speaks to the need for increased education in the application of
the current act rather than changes. We recognize that there are
administrative impediments to proper utilization which should be
addressed. We note that the act has provisions not currently
being applied or utilized on a systemic basis whereby people who
are involuntarily committed may receive treatment and
rehabilitation in the community via a leave-of-absence
provision.
Bill 68 perpetuates and
deepens the stigma associated with mental illness. It is premised
on the view that citizens who have a mental illness are a risk to
self and/or others such that exceptional changes to their
fundamental rights regarding treatment and consent are
warranted.
Bill 68 was announced by
government with specific reference to dangerousness. The news
release read: "Health and Long-Term Care Minister Elizabeth
Witmer today introduced new, stronger mental health laws to
ensure that people with serious mental illness who pose a danger
to themselves or others get the care they need.... Brian's Law
will save lives and prevent other tragedies." This bill strongly
associates mental health legislative change to a tragic, but
rare, instance of violence.
This position is not
supported by research regarding the propensity toward violence by
people with mental illness, which has found that people with
mental illness are no more violent than other citizens. Despite
these findings, the stigma of mental illness continues to include
the false notion that people with mental illness are dangerous.
This stigma is perpetuated by the media, and sadly now this
stigma is supported by Brian's Law. People with mental illness
report hurt, sadness and discouragement as a consequence of
stigma.
Paradoxically, the
increased stigma associated with Bill 68 and the powers it
proposes to confer upon doctors may well deter people from
seeking care when they first experience mental health problems.
The consequences may well be similar for people who have
experienced such care in the past, who may avoid the mental
health system in the future, disappearing into the subculture of
the marginalized.
Many people who experience
mental illness have already retreated from the mental health
system that they do not perceive as helpful, respectful of them
and their rights. In a California study of people with mental
illness, 47% reported avoiding any traditional mental health
services for fear of involuntary committal.
1650
The Ontario Federation of
Community Mental Health and Addiction Programs respectfully
requests that this bill be tabled for consideration of major
revisions in the context of a broader legislative and service
capacity review. The need to conduct such a review is even more
necessary due to the wide divergence of understanding about the
actual effect of Bill 68, suggesting that the bill will not
clarify or make more effective the law as it relates to mental
health. We note that the Saskatchewan legislation was developed
over a two-year period, not a two-month period, which we regard
as inadequate to deal with the complex issues related to matters
pertaining to this type of legislation.
Our general policy position
notwithstanding, the federation is committed to contributing to
the development of the best possible new legislation for Ontario.
If the government moves ahead with Bill 68, the federation will
offer its input.
Chris will give some
details about our recommendations if this legislation goes
ahead.
Mr Chris
Higgins: There is a range of very serious and powerful
changes being proposed and I certainly can't address them all in
detail. I'm going to whip through this as quickly as I may so
that we have time for questions.
In the US, civil commitment
has been termed a "massive curtailment of liberty," and in that
jurisdiction this is only possible by due process of law and not
by the opinion of a physician. Recognizing we have a different
system here in Canada, the federation would nevertheless suggest
that Bill 68 should stipulate the second physician is required to
confirm an involuntary committal decision within 24 hours. That
at least allows for some protection by two opinions being
required.
Bill 68 entails a whole range of terms that are at
least as hard to understand as "imminent." "Ongoing or recurring
mental disorder": Should that include brain damage? Should it
include only major psychosis? "Deterioration": Is that very
broadly held? Deterioration occurs when you smoke. "Clinical
improvement": In whose opinion and how many opinions?
"Substantial need for treatment": What does "substantial" mean?
"Responded well to treatment in the past": What's the context?
Has anything changed? "Apparently incapable": Well, "apparently
incapable" sounds like guesswork to me.
We suggest that the
additional time that we've asked for be dedicated to, among other
things, clarifying these terms in such a way that we won't
exchange "imminent" for seven or eight terms that are even harder
to figure out. That would require a provincial consultation
process that would honour the views of all the stakeholders.
Failing that, we suggest
specifically that we return to language including the word
"imminent," replace "deterioration" with "impairment," because at
least "impairment" is understood because we've been working on it
for many years, and finally set a limit on impairment to three
months.
Regarding police powers,
police are not gifted with special ability to perceive what's
going on. They're good folks doing a good job. They're not mental
health professionals, and if they're confronted with unsworn and
uncorroborated evidence about the state of somebody's well-being
they have no way to know if that's true or false. So we suggest
that the police need to observe a behaviour which they would
consider disorderly, together with reasonable grounds for
believing that that disorder is due to mental illness.
With regard to consent, we
believe the current consent laws are adequate and should be left
more or less intact. We have a couple of suggestions to add. We
note that in this particular act it is suggested that health
practitioners should be allowed to apply independently of a
person's substitute decision-maker for treatment to be provided
to that person against their will or without their consent. We
don't think that's a good idea. We think that the Substitute
Decisions Act and consent laws are adequate.
Regarding community
treatment orders, rather than try to renovate the existing
language, we would prefer to follow the lead of our colleague
from CMHA Metro, Steve Lourie, and recommend strongly that the
Saskatchewan approach be used. That's noted in detail, naturally,
in the Saskatchewan law, which is accessible to you.
Specifically, I'd like to
add a couple of other points. Not only should services exist in
the community but they should exist in the community the person
is from. It would not be adequate to say that there are services
in Toronto, so we should ship somebody down from North Bay, or
conversely, ship somebody from Toronto to a home in the far
countryside away from their natural communities.
We also suggest that a
community treatment order require the authority of two
physicians. We would require that rights advice and support be
provided to that person directly prior to the enactment of the
order. We would suggest also, as Mr Lourie did, that specific
hospitals and psychiatrists be delegated that authority and that
it not simply be designated to a class of individual across the
province.
In terms of rights advice
and support, we take the following position. Rights advice and
support should be provided to inform a person of their rights and
support them to exercise them. Furthermore, they should be
available to all persons receiving or eligible to receive mental
health care from publicly funded mental health services. That
includes hospitals, community-based programs, individual doctors
and so forth. We believe they must be provided directly to the
person and they may be provided to the substitute decision-maker,
but it would never be adequate, in our view, that they only be
provided to the substitute decision-maker.
We believe that the rights
advice and support should be provided by a disinterested party,
be provided upon involuntary admission and within 24 hours of an
application for a community treatment order and prior to its
implementation and upon any application to the Consent and
Capacity Board to rule on care received by the person.
Finally, such rights advice
should take into account prior existing wishes that the person
made while they were capable.
Regarding community mental
health services, our organization represents the vast majority of
such services in the province, and sadly I'm here to tell you
that since 1990 the base budget of those services has been
reduced 6.5%. Our costs have gone up every year since then and
those services are shrinking, not growing. They will continue to
shrink due to unfunded cost pressures and we estimate that at a
minimum they will shrink an additional 30%.
All the ACT teams that have
been put in place and all the ACT teams that are planned to be
put in place will not nearly come close to the loss in services
that are going to happen simply because these programs have been
left to wither on the vine while new money is invested in new,
very expensive programs. There is no community treatment unless
there is a community mental health system, and it's not just
medication. If the existing system is left to run into the
ground, non-profit boards are now faced with possible
bankruptcies because of unfunded liabilities that they're
carrying on their audited statements. You will not have any
community system and all you'll have is people ordered to take
their medication.
Specifically, we support
the position that standards of care, treatment and psychosocial
rehabilitation should be established in legislation, including
the right to access a full range of such services. Specifically,
the Ministry of Health should fund a full range of such services
in sufficient volume to meet the needs of the people with mental
illness in their own communities, and this includes supported
housing.
Second, the Ministry of
Health should also fund a full range of addiction services for
people with mental illness in sufficient volume to meet their needs,
because many of these folks have more than one problem.
Publicly funded access to a
full range of medication, including the newest generation of
anti-psychotic drugs, should be as of right. People should not
have to work their way through low-cost, ineffective medications,
suffering from many side effects and many adverse experiences and
developing an ongoing antipathy to medication, before they
finally have the privilege of taking the good stuff. No one would
expect that for any other person. Why would we expect it for
these folks?
1700
Finally, we would suggest
that if people can't get to the programs, they will be of no good
even if they exist. Recently we've had the transportation
allowances for people who need to access community mental health
programs cut by the ODSP program. We would recommend that they be
reinstated for all community mental health services funded by the
province of Ontario. You can't get care if you can't get to
care.
Regarding accountability,
this bill proposes to confer upon physicians, possibly designated
facilities, rather enormous powers to curtail the liberty of
somebody, to enforce conditions of medication, to enforce
conditions of treatment. Those things should not be given without
an accountability link. We think that both civil and criminal
accountabilities are required and that no one should be absolved
of their responsibilities.
Although the modern
medications are much better than the old ones, they are still
quite able to cause permanent brain damage, they still can kill
people and they are still frequently overprescribed, that is,
they are prescribed in much larger doses than they need to be. If
people are not accountable for the medication regime that is
forced upon an unwilling client, I don't see that we have real
accountability in our mental health system.
Finally, Bill 68 should not
be enacted until the community mental health system is in place
to receive and serve those folks and until proper education about
the Mental Health Act is provided-we have already learned that a
Mental Health Act that nobody understands does not work well-and
such education should be provided prior to implementation.
Rights advice and support
resources should be deployed and available on a provincial basis,
and a sunset clause should be incorporated into the act which
recommends a specific date for review and amendment according to
what we learn.
Finally, the provincial
government should help redress the issue of stigma by funding a
major anti-stigma campaign that begins one year prior to the
enactment of this act, reaches all citizens of Ontario and is
sustained for two years at minimum. If we have inadvertently,
meaning no harm, linked criminal behaviour and violence to an act
that is intended to provide better care, then it behooves the
government to help us redress the additional stigma which has
perhaps accidentally been created.
Those are our chief
recommendations. Beyond that, we support those of the Canadian
Mental Health Association, Ontario division, which has created a
much more detailed report on a clause-by-clause basis.
Thank you for the
opportunity. We'd be happy to answer questions.
The Chair:
We've got about a minute and a half left, so we'll give all the
time to the next party in rotation, which is the Liberals.
Mr Patten:
Thank you very much. By the way, I would say that many of the
issues you have raised and the recommendations you have posed are
certainly on the table for the committee in terms of amendments
to what is there now.
Mr
Higgins: Excellent.
Mr Patten:
I think you might find that encouraging.
I would like to respond to
one area because it's come up time and time again and I think it
is a little misleading. Here's what I'd like to say, and I almost
fear saying it because I don't want to be misunderstood. It's
that the people who have mental illnesses are no more violent
than the general population. I agree with that statement
generally, except that supposition then goes on to say,
"Therefore, they are no more dangerous." What I'd like to point
out-I think the literature indicates this and I would refer to a
few pieces you might respond to, because you made this statement
as well-is that there are subgroups, however, in some
instances-paranoid schizophrenics, males suffering from
addictions or whatever; you can construct a certain
scenario-where the risk of violence and danger to themselves or
others is 10 times what would be in the normal population and
even the mental illness population as a generalization. I know
there is always the referral to this one example, but in my
opinion it does not face reality.
Dr Arboleda-Flórez,
who heads up the psychiatric department at Queen's University,
provided some statistics, which never come out very often. He
talked about patients and that 25% of patients present
fear-inducing behaviour during the previous two weeks before
admission to a psychiatric hospital; 32% present such behaviour
at the emergency; 13% attack emergency personnel-nurses, what
have you-20% admissions to acute psychiatric units have committed
violent assaults during the previous two weeks before admission;
60% attack relatives. This is an area where there's very little
research, only anecdotal, and surveys and discussions with
parents, because parents do not want to charge their spouse or
their offspring, their son or daughter or whatever it may be.
They don't want them to be criminalized. I find it's an extremely
sensitive issue and I would be the last person, believe me, to
ever want to propagate this image. I say to people when they ask
me about this, "If you have fears about people being dangerous,
yes, but we're talking about a very small subgroup within that
category." But indeed that subgroup does exist. Would you take
issue with what I'm saying?
Mr
Higgins: Let me say that if you select down specifically
enough to a very narrow population, then you might be able to
make that case.
Mr Patten:
Which is what this bill is attempting to do. It's a very small
population.
Mr Higgins: But it is a far
broader bill than that, using words like "deterioration"-not
"impairment" but "deterioration" and so on. It casts the net far
wider than you're suggesting.
I would also say that if
you are going to deprive people of their rights under the law
regarding consent and deprive them of their liberty by
hospitalizing them against their will and so on, on the basis of
an extremely small subset, and you're going to capture a very
large set, then I think something has gone wrong. If you select a
subset of ordinary citizens who happen to be in Kingston
Penitentiary and then say, "Those folks are likely to commit
violence at a higher level, and since most of them come from a
certain socio-economic strata, we will now craft law differently
for that strata," I think you've reached a self-fulfilling
prophecy where you've selected folks to such a degree that you
say, "Now we're justified in limiting the rights of a much larger
set of people on the basis of those exceptional people."
I was just reading research
today that suggested that even those mentally ill who happen to
have gone to jail as a result of some criminal behaviour are
recidivist at a much lower rate than the rest of the jail
population, than the rest of the people who have been in jail. I
wasn't able to print that report for today, but I think the final
analysis is that we believe every citizen of Ontario should have
equal rights under the law regardless of their disability. The
fact that you might be able to predict that some citizens do
violent things does not mandate or does not support the notion of
lifting the rights of all citizens of that class.
Mr Patten:
The bill does not try to do that, in my opinion, but perhaps it
needs to be clarified.
Mr
Higgins: I guess that's part of the dilemma here. I know
in the hearings there have been many different understandings.
Some folks understand it to be narrow; some people think it is as
wide as it can be. My colleague at CMHA suggested that virtually
all of his clients would have been. I know when I did direct
service as a staff member, as an agency manager, virtually every
single person in my agency would have been eligible for a
community treatment order under this act. That's my experience. I
would put it to you that if all the mental health professionals
of Ontario are looking at this act and seeing very different
things, clarification is not well served, nor are the people it's
supposed to be helping.
The Chair:
Now you know, with a minute and a half, why I didn't try to split
it-a long minute and a half. Thank you both. We appreciate your
taking the time to come before us here today.
ERIN FITZPATRICK
The Chair:
Our next presentation will be from Ms Erin Fitzpatrick. Good
afternoon and welcome to the committee.
Ms Erin
Fitzpatrick: Would it be possible to have a
timekeeper?
The Chair:
Sure. What would you like, a one-minute cue, a two-minute
cue?
Ms
Fitzpatrick: Four.
The Chair:
Will do.
Ms
Fitzpatrick: Good evening. For the record, my name is
Erin Elizabeth Fitzpatrick. In my professional life, I function
in various capacities. These include psychiatric social worker,
acting psychiatric patient advocate, formerly affiliated with the
Psychiatric Patient Advocate Office, which is an arm's-length
body of the Ministry of Health; general private practice social
worker; legal researcher; and faculty of medicine, department of
psychiatry lecturer to fourth-year residents in psychiatry.
1710
Also for the record, it is
significant that it be noted that I requested standing to speak
in front of this committee on May 17 at 3:15 in the afternoon. I
was in attendance at all prior Toronto hearings and I was
debating the necessity of my presentation. On this date, May 17,
after consulting with my colleagues, associates and those
involved in various disciplines, endeavours and various degrees
of experience with the members of our collective community who
will be directly and indirectly affected by Bill 68, I felt I
should put my name forward to speak to you here today, and I
thank you for that opportunity.
For the record, that
community of which I was just speaking is really in fact-is it
not?-every single one of us in this room today and every single
person who has also been in attendance at every single one of the
hearings that this committee has determined it is necessary to
hold. As we all know, it's very unusual to hold public hearings
after first reading of a bill, so we are all acutely aware of
the, shall I say, irregular nature of the forum here today.
Further, every member of our collective community is truly every
one of us here, though in very different capacities.
The very esteemed
association, the Canadian Mental Health Association, published an
awareness quiz, and I quote from my submission, which
unfortunately due to some scheduling problems I was not able to
have in front of you but I'll be pleased to provide after: "One
in three Canadians will experience a mental illness some time
during their lives, one in eight serious enough to require
professional care. No one is immune to mental illness."
For the record, I have been
granted 10 minutes in which to testify, in "whatever capacity I
feel appropriate." As many of you are aware, 10 minutes under the
current rules is allotted for either expert testimony or
"testifying as an individual." Owing to the several capacities in
which I have been intimately involved with the issues of Bill
111, then Bill 76 and now Bill 68, I find it difficult to
determine in 10 minutes which of the numerous aspects of Bill 68
I would very much like to bring to your attention and have
enshrined on the very important record that is being created as
we speak. Since I was advised after significant lobbying that I
would be granted permission to testify in front of you here today
at 4:26 this afternoon, I have now had exactly 46 minutes to
prepare this submission.
I apologize if it is not as well prepared as I would have
hoped.
Thus, despite my text, as
you see I have with me, my submission which I had previously
prepared includes various sources of research that I have been
collecting since March 1995 when I began to have a very
significant interest in the area of community treatment orders
and mental health legislation as it affects our collective
community. This is research that I'm very eager to share with you
for a variety of reasons. Clearly, it is impossible for me to
even list the 133 sources that are cited in this text in my 10
minutes, of which I now have used-
The Chair:
Five.
Ms
Fitzpatrick: -five. Thank you.
Thus, I will attempt to be
direct, clear and succinct, owing to the constraints that I am
under. What is this bill all about? If I am correct, I am the
last person to be testifying in Toronto with respect to the bill
as it now stands, Bill 68. As we all know, in clause 48 of Bill
68, it has been given another title. For many reasons, I will
choose not to use that name because so far no one has accurately
used clause 48 in its entirety; rather, it has been abbreviated,
which is contrary to legal standards, as every lawyer is aware if
they have turned their minds to this issue.
Hence, back to my text,
when I now have four minutes to present to you what I feel is the
crux of what really needs to be conveyed, and that is the
following: This bill is about communication and understanding. In
my capacity as a psychiatric social worker, I feel that it is
imperative that we discuss communications and understanding. To
my knowledge, there have been no psychiatric social workers, nor
any general practitioner social workers who have had the
opportunity to speak to this committee thus far in Toronto.
Hence, I feel an ethical obligation to bring the issues that are
extremely pressing to my colleagues in this particular
discipline, as well as those shared by my colleagues who also
practice in community mental health, to the table for
discussion.
Again, this brings me right
back to the issue of communication and understanding. I now have
two and a half minutes to conclude my submission, but I would
like to know, are we communicating, are we understanding? Can
anyone, can all of us communicate and understand what Bill 68
entails and what its implications will be should it pass second
reading and should it be brought into law, as it stands or with
the several amendments that have been proposed by the numerous
well-informed and well-meaning individuals who have also
testified and have also brought their concerns to the attention
of their MPPs, to this committee and to their various other
advocates, associates, colleagues and people to whom them feel
could have an influence with regard to Bill 68?
Again, I return to
communication.
Je suis plus confortable
quand je parle français, et c'est vraiment la
communication ; encore, vraiment. J'ai demandé s'il
était possible d'avoir une conversation dans cette chambre,
et la réponse était que non. Alors, est-ce qu'il y a de
la communication maintenant ? J'espère que non.
So I will return to
speaking in English, because I feel that it is exclusionary for
me to speak in the language of my choice, which is French, today.
Tomorrow might be English again, but today I feel like speaking
French. Further, I could speak in legalese-for going to law
school does teach you one or two things. Speaking in legalese, I
would like to quote to you a passage from my submission. It
pertains to discrimination. I will borrow the words from the
Supreme Court of Canada, as stated in Andrews v Law Society of
BC. Footnote: [1989]1 SCR 357-that is, Supreme Court Reports, for
those of us who are not legally trained-[hereinafter Andrews]. It
states as follows:
1720
"Discrimination is
unacceptable in a democratic society because it epitomizes the
worst effects of the denial of equality, and discrimination
reinforced by law is particularly repugnant. The worst oppression
will result from discrimination measures having the force of law.
It is against this evil that section 15"-for those of us in the
room who are not familiar, that section 15 is from the Charter of
Rights and Freedoms enshrined in our Constitution since 1982,
which was brought into force in full in 1985, which was 15 years
ago if I can count-"provides a guarantee."
I would also speak in the
language and the tone of a social worker.
The Chair:
Perhaps you could conclude in one minute. We're already well over
the time.
Ms
Fitzpatrick: In one minute, then, I will conclude.
Please note how difficult
it was for me, someone who is relatively healthy today, someone
who has been fortunate enough to attain four university degrees,
including a law degree and a master's in social work, both with a
specialization in health care and science. The communication and
understanding has been difficult, has it not? I would like you to
think about this 10 minutes, and please be aware that this is the
approximate amount of time that many of those who are currently
directly affected by the Mental Health Act and the Health Care
Consent Act have to try and communicate if they are lucky enough
to relay their information to someone in the health care
profession in an attempt to attain some sort of help and
understanding.
In closing, I wish to leave
you with two quotes. I feel my microphone is not working so I
will raise my voice.
The first quote is from a
consumer-survivor I encountered while she was having a very
challenging time. She borrowed the words of Anne Morrow Lindbergh
in her attempt to try and convey to those without mental health
problems what it was like to live with a mental disorder. She
said: "It is not the desert island nor the stony wilderness that
cuts you from the people you love. It is the wilderness in the
mind, the desert in the heart through which one wanders lost and
a stranger."
My closing to you today is
the following. I borrow the words from Carl Jung: "The meeting of
two personalities is like the contact of two chemical substances;
if there is any reaction, both are transformed."
It is my sincere hope that there has been a
meaningful reaction here this afternoon and that I have given you
some things to ponder regarding Bill 68.
My support is with the
recommendations of many of those thoughtful presenters who have
appeared before the committee today.
I would like to thank you
sincerely for your time and offer my further services if that can
be of assistance at all to you in your continual review and
appreciation for the struggle of those affected by mental
illness.
The Chair:
Thank you, Ms Fitzpatrick.
With that, we had agreed as
a subcommittee that we would allow a few minutes for each party.
We'll start with you, Mr Patten, if you have any closing thoughts
or comments.
Mr Patten:
The first thing I want to say is that people should know that
this procedure of going to hearings before second reading, which
is when you really get the full reaction of all parties to the
particular bill is, so far, quite encouraging. I think you've
seen fewer partisan shots across the committee table. This tends
to, I hope, help those who are putting forward the bill on the
government side to be perhaps more open, because now you can
incorporate some of the thoughtful recommendations of the
witnesses who have testified before us. Certainly I can speak for
myself and members of the Liberal Party. We have already put a
number of recommendations and amendments to the bill on the
table.
In summary, I will be
speaking on the bill in the House, which will give me much more
time than I have at the moment, except to say that one of the
common denominators throughout all of this was that regardless of
the amendments and which ones are finally adopted by the
government, there is almost universal recognition that there need
to be more resources in the community and that indeed there is no
point in proceeding with the implementation of what I like to
call community treatment agreements unless there are resources
and a provision in the section that deals with community
treatment agreements says so. That is fundamental to
everything.
The other is the strong
identification in all corners about the rights of individuals. I
think everyone has felt that passionately, and there are
amendments to that effect.
I know we will have an
opportunity after second reading to come back and deal with
amendments in legalese. Some have already been put forward for
some consideration. My sincere hope is that all three parties
will have a fundamental basis of agreement on this, because I
truly believe this is a non-partisan issue, and I think we have,
to this stage, operated on that basis. Mr Chair, I would say you
have and I congratulate you for that. But I do believe we will
need to provide some support at this stage for at least a
position of the committee as regards a preamble. I will wait, Mr
Chair, for you perhaps to address that.
I wonder if I might pass
this to my colleague Lyn, who has been through most of this as
well. Would you like to make a few comments?
Mrs
McLeod: I think Mr Patten has covered the ground very
well. I just want to reinforce that if I have a lingering concern
as we go into the second reading, and hopefully the amendment
process, it's that we be very clear. I think one of the
presenters this afternoon identified the fact that as the act
currently stands, there is some confusion about the target
population that could benefit from the community treatment
orders. That's certainly a concern that we tried to focus on in
the amendments that we wanted to support and the amendments that
we are looking at obviously came from the submissions that were
made to us. But that clarification, which is one of the things we
thought could be addressed in the preamble as well as in some of
the specific definitions of the target population, along with the
added safeguards in terms of individual rights' provisions
without it being so cumbersome that the act couldn't work, were
the concerns we wanted see addressed in the amending process.
The Chair:
Thank you both.
Mr Kormos, I know that
you've only substituted in for the day, so it's a bit unfair
perhaps to ask you to play catch-up, but if you have any
comments.
Mr Kormos:
Not at all. I think I'll rise to the occasion, Mr Chair. I'll do
my humble best.
I don't purport to speak
for Ms Lankin. She has followed the submissions and the proposed
amendments that are to be inferred from those submissions and
perhaps the general response of the committee. But I do want to
say on my own behalf-even being here this afternoon and seeing,
for instance, Dr Fleming, and hearing Dr Fleming-his reputation
precedes him. He's well acknowledged in Ontario and beyond as
having great expertise, particularly in the area of
schizophrenia. He brought the American study that appears to be a
one-year study. At the same time, shortly after he left, we hear
from the Ontario Federation of Community Mental Health and
Addiction Programs and their reference to a report by the
International Association of Psychosocial Rehabilitation Services
that talks about the effectiveness of medication, mental health
treatment and rehab depending upon the willing participation of
the consumer.
1730
These are the sort of
contradictions that I trust the committee's been confronted with
on a daily basis as the committee has sat.
I've got to tell you,
Chair, and I tell this committee again-not on behalf of Ms
Lankin; she will undoubtedly speak in her own right-that I am
very concerned about this legislation. Earlier today we heard the
reference to the utilization of the criminal justice system as a
depository, if you will, for persons with mental illness. Yet I
have to tell you, at the end of the day, I'd far sooner be busted
under the Criminal Code, with the right to an advocate, the right
to a lawyer, the right to a speedy appearance before a justice of
the peace, for instance, than I would being apprehended for
purported mental health treatment.
Similarly, we heard from Dr
Fleming and it was unfortunate that we couldn't have expanded
more. He made reference
to the nature of treatments over the course of the last five
years. He very briefly described some of these medications and
indicated that they didn't have the same side-effect
disincentives for people taking the medications to take them.
Well, I saw some heads shake among people in the audience that
suggested to me that there could be a rebuttal to that, that
there could be a response to that.
I'm also discouraged. I
come from down in Niagara, from typical small-town Ontario. We
have got psychiatric services down there that are stretched to
the limit. We've got two psychiatrists serving the community
where all they're doing is crisis intervention. They can't do the
co-operative, ongoing treatment that includes therapies beyond
medications or in addition to medications that, as I understand
it, are critical if you're going to have a complete and
holistic-is that a fair word?-response to mental illness or
various forms of mental disorders. I've got two very skilled
psychiatrists down in my community who are pushed to the limit,
who are stretched, who spend all their time-OK, I'm generalizing,
please-but who spend the vast majority of time-oh heck, all their
time-doing crisis intervention using medications to take people
down from the ultra-hallucinations and delusions and the
ultra-psychotic states.
I am disinclined to support
legislation that does not accord people with illnesses the same
minimal rights as we accord people who are accused of criminal
offences.
Again, understanding the
study produced by Dr Fleming about involuntary treatment and its
effectiveness, in contrast to the statement made, for instance,
by the International Association of Psychosocial Rehab Services,
which appears to say the exact contrary, I'm very troubled by the
approach. It's clear I'm not impressed with the approach. I have
great concerns about the rights of all Ontarians, Canadians;
their right to get treatment.
I'm disturbed by the one
observation, statistics, the material presented today which
talked about the existence of CTOs as a disincentive for people
to voluntarily report themselves when they think they need
psychiatric treatment for fear that will constitute a first mark
against them in terms of building up points, if you will, so as
to lead to a CTO.
I agree with observations,
I'm sure, made by everybody about the de-stigmatization of mental
illness and the fact that we've got to understand the stats-one
in three, one in eight. The fact is that any one of us is as
capable as the other of being personal witnesses to our own
disorders or our own mental illnesses.
I'm concerned, I suppose,
as a civil libertarian, perhaps as a lawyer, as somebody who has
some intimate familiarity with families and individuals with
serious mental illnesses and their struggles, both at the family
level and the individual level and who has witnessed some
incredible successes by people but has never witnessed those in
the context of compulsory treatment.
Thank you kindly,
Chair.
The Chair:
Thank you, Mr Kormos. Mr Clark.
Mr Clark:
Before I get into my closing remarks, I think it's incumbent upon
me to correct the record in terms of the last presenter that we
had. The implication was made that she only had about four to six
minutes, in which time she couldn't do a written response. I
think it's important that everyone understand that the process of
these hearings was set out on the very first day back on May 10,
and it stated very clearly that the deadline for receipt of
written submissions be 5 pm on Monday, May 29. She had ample
knowledge; she had been in touch with the clerk's office on May
17, and since she has colleagues sitting with the mental health
legal committee, she clearly understood the rules of the process.
I don't want it to be left out there that someone didn't get an
opportunity or we somehow cut them short.
The process, as my
colleagues have mentioned, is extremely unusual. I have to say at
the outset, as someone who in the House consistently tries to
argue for non-partisan solutions to policies and issues, I was
really reticent to get into this process because it is new. We're
experimenting as we go. In many cases we're flying by the seat of
our pants. Standing orders-and in some situations we're finding
ourselves at odds and we're trying to make sure we're meeting the
intent of the standing orders doing this after first reading.
The overall philosophy of
everyone who's participated in the hearings as witnesses and all
of the members here on the committee I think has been very clear:
that there's a need to improve the mental health system in the
province. I think there is consensus there.
There is no doubt, as my
colleague from Niagara has stated, there is a wide viewpoint,
from one extreme to the other end and all the way in the middle
and disparate viewpoints therein. Our job as legislators
obviously is therein to find the balance; to protect individual
rights; to provide treatment for patients; to protect the
society. It is a balance that we are trying to achieve.
I've been very pleased with
the process and, I hate to say it to my House leader, but he was
right, we could get this through after first reading and do the
debate now in terms of dealing with the issues.
I'm also very pleased with
how the opposition and the government has worked together in
terms of the amendments. I had an opportunity to meet with the
critics of the opposition party earlier today and it's been a
long day for me. There are a number of amendments that have been
proposed. I wish to advise the opposition members that I have
gone over all of them again. I have not had an opportunity to go
through them with the minister or with my caucus or anyone else.
We will be doing that.
There's at least 10 to 15
of them that I immediately see the merit of and I'm on side.
There are others that I think the government side will be looking
at in terms of tweaking some of the clauses to make them more
clear, to articulate it better. That's the intent, again, of the
legislator.
The issue of the preamble
is something that has come up. Can we just pass them to all the
members please? The preamble has been something very unique-and
I'm cognizant of the
time. Normally, a preamble is done at the very beginning of an
act. Well, we're amending the Mental Health Act and the Health
Care Consent Act and there is no preamble to either one. So the
suggestion has been made that we have a preamble to this bill,
and earlier today the opposition members gave me some suggested
text for the preamble.
The difficulty I then found
myself with was trying to get the text approved by the minister
and everyone else who's involved in my caucus. To be quite frank,
I couldn't get it done because I couldn't get everyone together.
I met with the clerks and I met with the legal people. The issue
for us is, we want to make sure there is an opportunity to have a
preamble. The only way we can do it, because of this bizarre
circumstance we are in in terms of committee hearings right after
first reading, is to move a preamble so that it's on the record
at first reading and that will allow us the opportunity in
clause-by-clause to amend it to deal with some of the issues that
the opposition parties wanted in the preamble and we can debate
those and view it at that time.
I want them to understand
that I'm not trying to pull anything, but the difficulty is I
just could not get everyone together to deal with all of the
different things you were dealing with, because some of the items
you brought forth we're looking at dealing with in clauses. I
would rather deal with them in clauses and have it directly in
the statute as opposed to in the preamble.
My suggestion is the
preamble which I've provided you, and I hope we have consensus to
move it forward so we have an opportunity to deal with it down
the road.
1740
Other than that, I'm
looking forward to dealing with this through the debate. Again, I
want to thank specifically Richard Patten. He has been very
supportive and very non-partisan in our attempts to deal with
this. Frances Lankin also has been tremendous all the way
through; Lyn McLeod, Marie Bountrogianni,
everyone, and my colleagues on this side, Julia and Toby. Chair,
thank you. I didn't know if we'd get through this process, but
you did a spectacular job, and I'm in your hands at this point in
terms of how we proceed.
The Chair:
Thank you, Mr Clark, and I'll add a few-
Ms
Fitzpatrick: Do I get to respond?
The Chair:
No, I'm afraid you don't, Ms Fitzpatrick. We were very generous
with the time. If you have any other comments, please supply-
Interjection.
The Chair:
Your microphone isn't on. It's not being recorded for
Hansard.
I want to thank all the
members. I think it's been only the second time that a committee
has proceeded through after first reading. The first act was the
franchise act. It was very successful. I think this has proved
the merits to the changes to the standing order last year, that
we really can make some progress before the bill has actually
even gone back for agreement in principle.
So without any further ado
and with a reminder to anyone who has not sent in written
presentations that they can still be sent in to the clerk and
they would form part of the deliberations of all the caucuses
before we actually go into second reading debate; it would just
be too late to be part of the considerations here. I want to also
make it clear to the audience that when we do what we're about to
do, we are certainly not suggesting the act move forward without
change. It's just that this isn't the arena in which we make
those changes.
With the final reminder
that when we come to the appropriate section where we normally
deal with the preamble, we'll need unanimous consent to add a
preamble and then we would have the vote. Having said that, I
would ask the committee members, are there any comments,
questions or amendments and, if so, to what section?
Mrs
McLeod: Now you've confused me. My understanding is that
the only specific issue that we would be commenting on in terms
of a potential motion today would be the proposed preamble motion
from the government?
The Chair:
That's normally dealt with after the short title of the bill.
Mrs
McLeod: Are we moving to clause-by-clause now?
The Chair:
Yes, because we have to do that to refer the bill back into the
assembly.
Mr Clark:
We go to clause-by-clause at second reading. After second reading
we go to clause-by-clause to deal with all of the amendments for
the final time. This is just to get the bill-
The Chair:
The clerk advises we have to put the question, but remember, this
is identical to the normal voice vote we would be taking in the
Legislature, just yea or nay to allow something to stand ready
for second reading. So you are not in any way abbreviating or
eliminating your ability to make amendments or comments at the
normal time. This simply gets it back into the assembly in a
manner in which we can then move forward on debate-and if you see
fit, with a preamble.
Mrs
McLeod: So your request for questions or comments is
really on the preamble at this point?
The Chair:
No, if you have any other issues-but it's a formality. I have to
ask that question, as Chair. Yes, Mr Patten?
Mr Patten:
Because this is unusual, and I'm saying this for the benefit for
the witnesses who are here today, the people with us, normally
this would be after second reading, and then we would be actually
going through and dotting the i's and crossing the t's and
arguing about this word should be substituted for that word, and
we'd vote on it etc. But because we haven't had our full debate
yet, but we're still required to go through the motions, as it
were, we do need to acknowledge and vote through something,
knowing we're coming back at it to do the real job after second
reading. That's not the job today, but we have to go through a
pro forma exercise, I gather-
The Chair: Yes.
Mr Patten:
-as we are advised by the clerk, in order to proceed to second
reading, continue to entertain and negotiate and recommend
amendments, and then we come back after second reading to really
do what normally would happen.
The Chair:
That's correct. Thank you. Mr Kormos, you had a question?
Mr Kormos:
I've listened carefully to what the Chair has said and to what Mr
Patten has said, but I applauded the concept of committee after
first reading because I understood that it would allow for there
to be amendments before the bill was returned to the House for
second reading, so that it could be debated on second reading, as
amended. It seems to me that if you're not doing that-just very
briefly-then you're defeating the purpose of having committee
hearings after first reading. I'm simply pointing that out.
That's my concern about the procedure.
I assume the Chair is
directing that that's what the rules require, and that's fair
enough. You've got no control over what the rules say, but that
leaves me very concerned about the process, because if we are
then back at point one or point zero because it doesn't permit
the two kicks at the can, if you will, that committee hearings
after first reading would normally appear to provide, I have
concerns about that.
The Chair:
Mr Kormos, perhaps I can allay those concerns. I am loath to put
words in the mouth of any of my colleagues on either side, but I
can tell you in no uncertain terms, Ms Lankin is fully aware of
the process. The issue will be the format with which amendments
or proposed amendments and areas of common interest move forward.
The clerk has circulated a letter that said we can either do that
as a group separately via a letter to the minister or each caucus
could forward those comments. But the House order itself that
referred the bill to us does not allow for clause-by-clause
deliberation of the amendments. It does allow us to determine
what we would like to see changed in the bill, and the advantage
that gives us is, even when we start second reading debate, we
know the areas that we've reached an accommodation on. There will
be no reason to take any debating time on those matters, and you
can move on to the relatively few, we hope, areas where there
might be a difference of opinion.
So I absolutely guarantee
to all the members here there is absolutely nothing untoward in
this. It is merely that as a new process, we still are caught by
the convention that to order something out of committee, there
are about five questions I have to ask, but I want it clearly on
the record that we are in no way interrupting your ability to
propose amendments and to reflect on what we've heard during
these hearings.
Mrs
McLeod: I fully appreciate that. I will have a question
that I trust can be addressed before we officially adjourn today,
and that question will be the process for understanding which
amendments may not be moving forward with consensus and which we
will want to submit to legislative counsel ourselves and the time
frame that we'll have to do that, which is an issue I raised at
the beginning of the process. So I will look for some direction
on that before we leave.
The reason I asked about
the motion that was to be placed on the preamble was that I
understood this is something out of the ordinary five questions
that you would pose. I was going to ask a question about the
preamble, if that's something we're voting on today, that's all,
fully understanding that the preamble itself can be amended, and
I appreciate that.
The Chair:
Feel free to pose the question.
Mrs
McLeod: My question was really quite a simple one. The
preamble as presented in the government motion is pretty basic
and I just wonder if the parliamentary assistant might give some
comment as to how this enhances the bill, this particular
preamble, what seems a very general statement.
Mr Clark:
With complete respect, the issue for us on this preamble-everyone
agreed that they wanted a preamble in it because of the
shortness-
Bells ringing for a
vote in the House.
Mr Clark:
Is it a five-minute bell?
The Chair:
No, 10 minutes.
Mr Clark:
With the shortness of where we are-and I simply could not get the
items that you had mentioned and Frances had mentioned; I
couldn't deal with it-I wanted to make sure that you didn't lose
the right to have the preamble.
Mrs
McLeod: That's fine
Mr Clark:
So that's why I came up with a generic.
Interjection: We trust you.
The Chair:
There has been a lot of trust built up so far in the hearings. I
think we've got a long time to live with the new standing orders
and I would hate to see us lose the momentum we've developed so
far. Maybe after the franchise act, Bill 68 will be the second
successful use of post-first-reading hearings.
Again, to simply go through
the formalities, if I may, I've asked about any other comments or
questions. Seeing none, shall sections 1 through 47 carry?
Mr Kormos:
Recorded vote?
The Chair:
Recorded vote, absolutely. All those in favour?
Mr Clark:
The agreement was a voice vote. Frances asked for a voice
vote.
Mr Kormos:
I will withdraw my request for a recorded vote.
The Chair:
Thank you, Mr Kormos. Clearly a new era.
Shall sections 1 through 47
carry?
Carried.
Shall section 48, the short
title of the bill, carry?
Carried.
This would be where you
would read the preamble, Mr Clark. Forgive me. Is there unanimous
consent to introduce a preamble? Agreed.
Mr Clark:
I move that the bill be amended by striking out "Her Majesty, by
and with the advice and consent of the Legislative Assembly of the province of
Ontario, enacts as follows:" and substituting the following:
"Preamble
"The government of Ontario
believes that it is essential that all components of the mental
health system, including legislation, support the creation of an
integrated and coordinated system. An important element of this
vision is the striking of a balance between individual rights and
the need to provide mentally ill persons living in the community
with meaningful care and treatment.
"Therefore, Her Majesty, by
and with the advice and consent of the Legislative Assembly of
the province of Ontario, enacts as follows:"
The Chair:
Any questions or comments?
Mr Kormos:
Very briefly, again, this is the first opportunity Ms Lankin
would have had to see this. The prospect of balancing individual
rights with anything else is repugnant to the concept of rights.
With all due respect, you either have rights or you don't, and to
talk about balancing rights or compromising rights is a very
dangerous proposition.
I'm sorry. I will not
support this. I will oppose this because this language of
"balancing" implies that you can violate individual rights to
pursue some other goal. I don't believe that is necessary to have
an effective mental health care treatment system and I think it's
dangerous language in the preamble.
The Chair:
Seeing no other comments, shall the preamble carry?
Mr Kormos:
A recorded vote, Chair.
The Chair:
I had already asked the question, Mr Kormos.
Mr Kormos:
I asked you for a recorded vote.
The Chair:
OK, Mr Kormos wants a recorded vote on the preamble. The clerk
will take the roll.
