ATTORNEY GENERAL MINISTER OF CITIZENSHIP, CULTURE AND RECREATION MINISTER OF HEALTH
MINISTRY OF CITIZENSHIP, CULTURE AND RECREATION
MINISTRY OF THE ATTORNEY GENERAL
CONTENTS
Monday 5 February 1996
Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1995, Bill 19, Mr Harnick /
Loi de 1995 modifiant des lois en ce qui concerne l'intervention, le consentement
et la prise de décisions au nom d'autrui, projet de loi 19, M. Harnick
Attorney General; Minister of Citizenship, Culture and Recreation; Minister of Health
Honourable Charles Harnick
Honourable Marilyn Mushinski
Honourable Jim Wilson
Ministry of Citizenship, Culture and Recreation
Carr, Luby, manager, social and economic policy section
Ministry of Health
Auksi, Juta, senior consultant, legislation policy unit
Perun, Halyna, counsel, legal services branch
Sharpe, Gilbert, director, legal services branch
Ministry of the Attorney General
Chalke, Jay, deputy public guardian and trustee--legal services and legal director, legal services branch
Spinks, Trudy, manager, implementation support and counsel, implementation support unit
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président: Martiniuk, Gerry (Cambridge PC)
Vice-Chair / Vice-Président: Johnson, Ron (Brantford PC)
*Boyd, Marion (London Centre / -Centre ND)
Chiarelli, Robert (Ottawa West / -Ouest L)
Conway, Sean G. (Renfrew North / -Nord L)
*Doyle, Ed (Wentworth East / -Est PC)
*Guzzo, Garry J. (Ottawa-Rideau PC)
Hampton, Howard (Rainy River ND)
Hudak, Tim (Niagara South / -Sud PC)
*Johnson, Ron (Brantford PC)
*Klees, Frank (York-Mackenzie PC)
*Leadston, Gary L. (Kitchener-Wilmot PC)
*Martiniuk, Gerry (Cambridge PC)
*Parker, John L. (York East / -Est PC)
*Ramsay, David (Timiskaming L)
*Tilson, David (Dufferin-Peel PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Caplan, Elinor (Oriole) for Mr Conway
Clement, Tony (Brampton South / -Sud) for Mr Klees
Grandmaître, Bernard (Ottawa East / -Est) for Mr Chiarelli
Johns, Helen (Huron) for Mr Hudak
Marchese, Rosario (Fort York) for Mr Hampton
Clerk / Greffière: Bryce, Donna
Staff / Personnel: McNaught, Andrew, research officer, Legislative Research Service
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The committee met at 1303 in room 151.
ADVOCACY, CONSENT AND SUBSTITUTE DECISIONS STATUTE LAW AMENDMENT ACT, 1995 / LOI DE 1995 MODIFIANT DES LOIS EN CE QUI CONCERNE L'INTERVENTION, LE CONSENTEMENT ET LA PRISE DE DÉCISIONS AU NOM D'AUTRUI
Consideration of Bill 19, An Act to repeal the Advocacy Act, 1992, revise the Consent to Treatment Act, 1992, amend the Substitute Decisions Act, 1992 and amend other Acts in respect of related matters / Projet de loi 19, Loi abrogeant la Loi de 1992 sur l'intervention, révisant la Loi de 1992 sur le consentement au traitement, modifiant la Loi de 1992 sur la prise de décisions au nom d'autrui et modifiant d'autres lois en ce qui concerne des questions connexes.
The Chair (Mr Gerry Martiniuk): I see a quorum. This is the standing committee on administration of justice and the consideration of Bill 19, for the month of February.
I welcome the substitute members that we have present. Helen Johns, the member for Huron, is the parliamentary assistant to the Minister of Health. Tony Clement, Brampton South, is the parliamentary assistant to the Minister of Citizenship, Culture and Recreation. Elinor Caplan, former Minister of Health and member for Oriole, is the opposition Health critic. Bernard Grandmaître is a former Minister of Municipal Affairs and the member for Ottawa East. Rosario Marchese is a former Minister of Culture and Communications.
Other members: Ron Johnson, Vice-Chair of this committee; Garry Guzzo, member for Ottawa-Rideau; David Tilson, parliamentary assistant to the Attorney General and the member for Dufferin-Peel; Marion Boyd, former Attorney General of Ontario and the member for London Centre and now the third party's Justice critic; Gary Leadston, member for Kitchener-Wilmot; David Ramsay, former Solicitor General of Ontario and the member for Timiskaming; Ed Doyle, the member for Wentworth East; John Parker, the member for York East. I think that covers everyone.
ATTORNEY GENERAL MINISTER OF CITIZENSHIP, CULTURE AND RECREATION MINISTER OF HEALTH
The Chair: Today we have on our agenda three ministers: the Honourable James Wilson, Minister of Health; the Honourable Charles Harnick, the Attorney General of Ontario; and the Honourable Marilyn Mushinski, Minister of Citizenship, Culture and Recreation.
It's suggested to the committee, unless there is an objection, that we would hear presentations from all three ministers and then there would be the opportunity for the statements from the opposition and questions to all three ministers. If that is acceptable, we'll proceed in that manner. The Honourable Charles Harnick, I understand that you will make your presentation first.
Mrs Elinor Caplan (Oriole): Are copies of the minister's statement going to be tabled with the committee?
The Chair: Is there a written statement to be filed with the committee, Mr Harnick?
Hon Charles Harnick (Attorney General, minister responsible for native affairs): No.
The Chair: I believe the answer is no, Mrs Caplan.
Hon Mr Harnick: Today, in keeping with the government's promise to the people of Ontario, we are embarking on an important stage in implementing the changes proposed in Bill 19, the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act. Over the next four weeks, you will have an opportunity to hear from members of the public across the province and to provide feedback yourselves on the new law.
This important new law will reduce government interference in the private affairs of individuals. It will also place decision-making where it belongs -- in the hands of individuals and their families. Important features of Bill 19 include repealing the Advocacy Act and abolishing the Advocacy Commission, which interferes in the private lives of vulnerable people and the people who care for them; replacing the Consent to Treatment Act, an unnecessary, bureaucratic and intrusive law, with the Health Care Consent Act, reducing delays in treatment for mentally incapable people; and amending the Substitute Decisions Act to ensure that powers of attorney are protected, to reduce barriers to family members who apply to become statutory guardians, to expand the categories of family members who can apply to be a statutory guardian to include in-laws and extended family, to simplify the rules for making and using powers of attorney, and to ensure that decision-making is in the hands of individuals and their families.
During the past year and a half, many Ontarians have expressed serious concerns that the existing laws are too complicated and bureaucratic and give the government too much power to intervene in the lives of ordinary people. Many of you have previously acknowledged the uneasiness expressed by your constituents over these laws. These amendments respond directly to criticisms heard over and over again across Ontario.
My colleagues the Minister of Health and the Minister of Citizenship, Culture and Recreation will be talking in greater detail about their aspects of the bill. I would like to speak now about the amendments to the Substitute Decisions Act that will be affected by Bill 19. Before I discuss some of the major areas of change, I think it would be useful to describe our fundamental objectives.
These amendments will retain the basic principles of the act -- respect for personal choice and enhancement of the dignity of mentally incapable people. They will respond to the intense public concerns about potential government interference with powers of attorney. They will clarify that private arrangements people make to plan for possible future incapacity will have first priority. They will provide more opportunity and easier processes for family to become substitute decision-makers if advance planning has not occurred. They will streamline procedures, reducing bureaucratic red tape and complexity.
They reflect this government's belief that the majority of family members, service providers and caregivers are acting in good faith and with good intentions. They will eliminate the involvement of the expensive and intrusive professional advocate in the procedures for appointing guardians. The amendments will clarify that the public guardian and trustee will act as guardian only as a last resort, when there is a critical need and there is no other suitable person available or willing to act. The amendments will facilitate the involvement of local community volunteers in providing assistance with guardianship services.
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For these objectives to be meaningful, it is important to understand the law before the Substitute Decisions Act, the underlying purposes of the current Substitute Decisions Act and the reasons why this government has acted to amend the act while preserving its basic principles.
The current Substitute Decisions Act, as I have acknowledged in the past, is a well-intentioned attempt to address the need for a comprehensible and complete set of rules for decision-making for mentally incapable people. There is no doubt that there were serious gaps and defects in this area of the law before the previous government's reform. For example, prior to the current Substitute Decisions Act, individuals could only plan ahead for financial matters.
There has been increasing recognition of the importance of decisions which have a profound effect on health and quality of life. People have come to consider these types of decisions as important as financial decisions. One illustration of this has been the increasing interest in the concept of living wills and increasing demand that government make it clear that these choices will be respected. So in introducing the power of attorney for personal care and confirming the legality of living wills, the legislation was a significant improvement.
However, it also created unnecessarily complicated procedures for using this power of attorney for personal care if the need should arise. The procedures were expensive in that they involved obtaining two capacity assessments. They were also time-consuming in that they required the completion of a detailed guardianship plan to be filed with the office of the public guardian and trustee and then waiting for an advocate to visit the incapable person to give him or her rights advice.
Even after the attorney goes through this process, a person who has already been assessed two times and found incapable is allowed to stop the power of attorney from being used. In reality, this makes a power of attorney for personal care of little use to most people. No one wants that result, least of all the many people who have taken the time over the last few years to make a power of attorney for personal care. That is why the government is amending the Substitute Decisions Act to make it easier for everyone to use powers of attorney for personal care.
Attorneys who wish to act for incapable people will no longer be required to go through elaborate procedures just to get formal acknowledgement of their authority to act on behalf of the incapable person. The power of attorney will speak for itself. The attorney will not be required to file anything with the public guardian and trustee or receive permission from that office before acting as a substitute decision-maker. This is just one example of many instances where Bill 19 is simplifying an improvement to the law that the Substitute Decisions Act makes excessively complicated.
As much as the changes in the area of personal care brought about by the Substitute Decisions Act were a big step forward in principle, this is not true in the area of financial planning. Although I have confidence that the government of the day had the best intentions, the actual results of the changes to financial powers of attorney seriously alarmed the public.
Before the Substitute Decisions Act, financial powers of attorney were paramount. People did not have to be concerned that their private arrangements could be interfered with by the government. The Substitute Decisions Act changed this and increased the possibility of government involvement in these situations. This is simply unacceptable to the public, as I am sure many of you have heard repeatedly from your constituents. Bill 19 will restore the integrity of private planning by introducing barriers to government involvement. It will do this without in any way jeopardizing the validity of powers of attorney which have already been made.
There was one change made to the law by the Substitute Decisions Act that caused considerable public concern. Prior to the Substitute Decisions Act, a continuing power of attorney for property was not terminated when the individual who made it was assessed and found incapable of managing property. The public guardian and trustee would not take over and manage the property of an incapable person who had previously made a continuing power of attorney. The Substitute Decisions Act altered this.
Under the current act, a person who has made a continuing power of attorney might later be formally assessed and found incapable. At this point, the public guardian and trustee is required to step in and take over management of the property. To get permission to manage the property, the attorney has to apply to the public guardian and trustee.
This was not an improvement. It was an unacceptable level of intervention in people's private affairs. In this instance, the law prior to the Substitute Decisions Act was better, and we are amending the act so that a continuing power of attorney will once again not be terminated when a person becomes mentally incapable.
It needs to be acknowledged that even with mechanisms in law to plan ahead, there are some people who do not or cannot take advantage of this opportunity. The existing Substitute Decisions Act improved on earlier laws relating to situations where incapable individuals have not planned ahead and made powers of attorney for property.
Prior to the Substitute Decisions Act, there were only two ways such persons could get a substitute decision-maker. First, the person might be assessed and found incapable under the Mental Health Act. However, this would happen only if the person had entered the province's mental health system, which would not normally happen in the case of someone who became incapable as the result of a stroke or a disease such as Alzheimer's. And in every case it would result in the public guardian and trustee becoming the statutory guardian of the incapable person's property. If someone else wanted to be an incapable person's guardian of property, he or she would have to use the second route and apply to court for permission. This was the rule even if the proposed guardian was the incapable person's spouse or child. This court application was usually expensive and time-consuming.
The current Substitute Decisions Act improved this situation by permitting a spouse or partner, child, parent or sibling to apply directly to the public guardian and trustee to replace it as the statutory guardian. With Bill 19, we are further expanding the opportunities for family members to be appointed as statutory guardians without being required to go to court. We are doing this by opening up the category of family members who can act as statutory guardians to include anyone related to an incapable person by blood, marriage or adoption. As I said at the time of second reading, we know that families do not begin and end with parents, children or siblings. It has been gratifying to hear positive comments from members such as the member for Oriole about the wisdom of this amendment.
Another amendment under Bill 19 that has made it easier for those applying to become statutory guardians is the removal of the mandatory requirement to post security. Under Bill 19 the public guardian now has the discretion to request security.
There is always an option to apply to court to be appointed guardian, and Bill 19 has made this process easier. Amendments to Bill 19 have made many of the procedures that do have to be brought before court cheaper and less time-consuming by allowing certain applications to be brought by way of motion, which is a less complicated, cheaper and quicker court procedure.
Before the Substitute Decisions Act, there were details in the law concerning the powers, duties and accountability of financial guardianship. In contrast, with respect to personal guardianship, none of these issues were addressed. The act now contains detailed provisions regarding both, which is an improvement.
Bill 19 further improves the situation by reducing the complexity of and simplifying these provisions while retaining the essential elements of being responsible for making decisions on behalf of another person. Now the powers, duties and restrictions on substitute decision-makers for personal care have been simplified and in some cases eliminated in order for substitute decision-makers to do their job. For example, substitutes will no longer be required to prepare annual reports; it will be sufficient to keep written records. Further, under Bill 19 there are now fewer limits on the decisions that can be made by substitutes, again making it easier to do what is in the best interests of the person.
Prior to the Substitute Decisions Act, there were only very limited provisions to ensure that people who were affected by guardianship procedures were informed of their legal rights. The act introduced a very rigid, formal and expensive scheme for providing this information that always required meeting with a government-funded advocate. With the elimination of the Advocacy Commission, we need to find better ways of making sure information about legal rights is available.
Under Bill 19, people who are affected by the Substitute Decisions Act will still be informed of the legal avenues that are available to them, but in a less bureaucratic, simpler way that can be made to suit the situation of the individual.
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Section 10 of Bill 19 proposes changes to section 16 of the Substitute Decisions Act which will require the public guardian and trustee to inform incapable people for whom it is appointed as guardian of their legal right to appeal to the Consent and Capacity Review Board. This will be a legal obligation, and compliance by the Office of the Public Guardian and Trustee will be mandatory.
In addition, section 46 of Bill 19 will require that every time a court application is made for guardianship, the person who is applying will have to inform the person who is alleged to be incapable of their rights or give the court an explanation as to why they could not do this. In this way, the judge will ensure that information that is appropriate in the circumstances has been provided.
We have considered the legal issues carefully and we are satisfied that these are appropriate and sufficient safeguards. The rights advice provisions of the Substitute Decisions Act will still, after Bill 19 is enacted, be the most rigorous that any province in Canada requires in similar circumstances.
Our goal throughout our review of the Substitute Decisions Act that led to the introduction of Bill 19 was to improve the act. As I acknowledged earlier, there were many laudable concepts introduced into the law by the Substitute Decisions Act, such as the power of attorney for personal care. Another of these was the recognition in the law of the validity of documents such as living wills. That is why we are not changing this part of the act. After it is amended by Bill 19, the Substitute Decisions Act will continue to provide that living wills and other similar documents are legally binding on an incapable person's substitute decision-maker.
At its core, the Substitute Decisions Act represented an attempt to create a scheme for substitute decision-making on behalf of incapable persons that would facilitate advanced planning for incapacity, address the needs of incapable persons, and give families and government the appropriate means they would each need to assist and protect them. The complexity of the scheme in the current Substitute Decisions Act, as well as some overly intrusive provisions, simply frustrated the good intentions that underlie the act. I believe the amendments introduced by Bill 19 will result in a Substitute Decisions Act that will truly serve the needs of Ontarians.
In closing, I would also like to express my appreciation to the members of this committee for their anticipated hard work and dedication. I am confident that the next four weeks will be extremely productive, providing us with constructive feedback on important laws that affect every one of us. Thank you very much.
The Chair: Thank you, Mr Harnick. My apologies. I did not introduce an additional member of our committee, Mr Frank Klees -- I didn't see you -- who is the member for York-Mackenzie and also the parliamentary assistant to the Minister of Natural Resources.
We will now hear from Marilyn Mushinski, the Minister of Citizenship, Culture and Recreation.
Hon Marilyn Mushinski (Minister of Citizenship, Culture and Recreation): Thank you, Mr Chairman. First of all, let me tell you how pleased I am to appear before this committee today to address an issue of importance to the people of this province.
In Bill 19, which was introduced for first reading by my colleague the Attorney General on November 15, 1995, provision is made to repeal the Advocacy Act and eliminate the Advocacy Commission. This provision will restore common sense where it is most needed. It will allow us to focus on a more community-centred and, frankly, more sensible approach to the provision of advocacy for vulnerable adults.
I know that some of the individuals the Advocacy Act was meant to help are concerned about its repeal. They want to know why we are taking this step and what we intend to do to help protect the interests of vulnerable adults. I would like to address those questions today.
Advocacy is defined in most dictionaries as the act of speaking or pleading on another person's behalf. Families, volunteers, self-help groups, community agencies and members of the caring professions have been doing so for decades, and in most cases very effectively, but the former government believed that it could do better by establishing the Advocacy Commission, an $18-million-a-year bureaucracy that would serve as protector of vulnerable people and oversee the provision of advocacy throughout Ontario.
Under the legislation, the commission could authorize community agencies to provide advocacy services on its behalf. There was an important proviso, however: Community agencies could only be authorized if their sole function was to provide advocacy services. This meant, for example, that an agency would not be authorized if it delivered Meals on Wheels to seniors, because doing so was perceived to be a conflict of interest. The net effect was that many community agencies that were providing necessary and important services to vulnerable adults but were also advocating on behalf of their clients could not be authorized to do advocacy on the commission's behalf or be eligible for commission funding.
Our position is different from that of the former government. We believe that the majority of families, friends, volunteers, community agencies and service providers are both willing and able to advocate effectively for vulnerable adults, and to do so in a way that respects their wishes.
Under the provisions of the act, commission-authorized advocates were given the power to enter virtually any place that vulnerable people lived or received care and treatment. This included institutions, hospitals, nursing homes, boarding-houses, sheltered workshops, day care facilities, schools, and yes, even private homes. If they weren't refused entry, they could go into such places without a warrant and at any reasonable hour. What was reasonable was largely left up to the commission. If advocates were refused entry, they could seek a warrant from a justice of the peace. If the warrant was granted, they could gain entry, if necessary with the assistance of the police. They also had the power to examine records belonging to facilities such as hospitals, in some cases without the consent of the vulnerable person to whom the records related. Commission advocates could use these powers even when they were not responding to an allegation of abuse and there was no evidence that a vulnerable person was in need of protection.
We believe, as do many members of the medical community, many family organizations and other critics of the Advocacy Act, that the powers given to commission advocates were excessive, that the intrusion of strangers into other people's affairs would inevitably create tension and conflict within families and between vulnerable people and members of the medical profession.
We will eliminate this adversarial approach by restoring and strengthening the role that families, volunteers and community-based agencies have always played in the lives of vulnerable adults. We intend to take a different approach to the provision of advocacy by promoting partnerships among the many dedicated individuals and organizations who are already advocating on behalf of vulnerable adults. We will work cooperatively with them to coordinate efforts to make the best use of collective resources and expertise, to develop effective mechanisms for addressing abuse and neglect, and to link vulnerable adults and their families to information, services and other forms of assistance.
In developing a new approach to protecting the interests of vulnerable adults, we are listening to the views of people reflecting the perspectives of community organizations, seniors, people with disabilities, volunteers, medical professionals, service providers and, most important, families. Our approach will reflect this government's commitment to protecting the interests of vulnerable people in a way that is sensitive, responsive and cost-effective.
The Chair: Thank you, Madam Minister. We'll now hear from the Honourable James Wilson, Minister of Health.
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Hon Jim Wilson (Minister of Health): Thank you, Mr Chair. I am pleased to address the committee today and add my strong support for Bill 19, which was tabled by my colleague the Attorney General for second reading last November.
An important part of Bill 19 is the Health Care Consent Act, which replaces the flawed Consent to Treatment Act.
As lawmakers, it is essential that we achieve maximum clarity in directing health care professionals, families and caregivers on how to ensure incapable individuals are treated fairly and compassionately when they are unable to consent to treatment on their own. In providing this direction, we are required to consider whose interests we are trying to protect and the intended social goal or purpose we aim to achieve. We have a responsibility, therefore, to bring forward clear, concise and thoughtful legislation. Confusing legislation leads to an obscuring of policy goals and in the end leaves those we sought to protect unprotected. This has become the fate of the Consent to Treatment Act.
What is required is a realistic and workable framework for health practitioners to obtain consent to treatment, a framework that also permits appropriate substitutes to step in to ensure a loved one receives necessary treatment when required. I believe we have created that framework in the new legislation. By revising the previous government's legislation, this government is responding directly to the very real, very troubling issues that have been raised by families, health care providers and caregivers over the last several years.
I speak to this bill today not only as Minister of Health but also as a member who has met with the concerned families, received the phone calls from the health care professionals, worked with the associations representing some of society's most vulnerable and read the heartbreaking correspondence from caregivers. Each of these groups came to me, desperate for some advice to help them manoeuvre through the legislative maze confronting them. Today, as Minister of Health, I am pleased to tell them that relief is on its way. Let me begin then by addressing up front some of the salient changes that this government is introducing in Bill 19.
The requirement for formal rights advice of the Consent to Treatment Act has been removed. This government has a fundamental belief that health care professionals will act in the best interests and according to the known wishes of a patient. Rights advice can be discussed among health practitioners, individuals and their families in a way that is appropriate in the circumstance. However, I understand that this section of our new act could be somewhat problematic and certainly will be the basis of discussion here at committee. So I'm going to be following with great interest the comments presented to this committee concerning these issues over the next few weeks, including comments made by groups such as health care professionals on how they will ensure that patients found to be incapable of consenting will receive basic information about the consequences.
There will continue to be an exception for psychiatric inpatients. Psychiatric facilities are a special case, partially since many patients are admitted against their will by civil committal.
This legislation will hold the advance directives of an individual and existing powers of attorney with the highest regard. We recognize the importance of abiding by such wishes. We recognize the importance of keeping government out of personal matters that have been decided by an individual in concert with those central to his or her life. Only in situations where someone has absolutely no such connection will the state be allowed to step in.
Family members will not be required to make a formal statement before consenting to or refusing treatment for a loved one as was the case with the Consent to Treatment Act. We have taken significant steps to revise the previous government's legislation to allow the family to make substitute decisions for a loved one without unnecessary bureaucratic delay.
The new Health Care Consent Act gives family members clearer legal authority to make decisions for their incapable loved ones without the unwarranted interference of the state.
We have made important clarifications to the definition of treatment by exempting routine examinations, simple diagnostics and routine activities that encompass the day-to-day caregiving in facilities. The result is that care can be provided promptly.
Under the new act, a health care professional will be able to make required adjustments to a treatment without seeking repeated consent from a substitute decision-maker. This represents an important streamlining of the current process. The current repetitiveness of the process is frustrating to both families and providers.
As well, the new legislation will allow one health practitioner on behalf of a team of other professionals to propose a plan of treatment and ensure consent is obtained. The current legislation made this sort of process a bureaucratic nightmare.
We have introduced changes to ensure that treatment may begin promptly after the Consent and Capacity Review Board has confirmed that an individual is incapable. Only when an individual wishes to appeal the board's ruling will treatment not ensue directly. This is a significant amendment. It means that the mandatory seven-day waiting period which existed regardless of whether the individual intended to appeal has been eliminated. Again, this requirement of the previous act represented an unwarranted delay in treatment.
We have established a workable, streamlined process for admitting an incapable person into a care facility and for dealing with personal assistance issues that might arise in a facility. Such a process is completely missing from the Consent to Treatment Act, putting some of our most vulnerable citizens in a perilous position. In this way, the valuable principles of the Health Care Consent Act apply to more than just health treatment. This means that families will rarely have to go through lengthy and costly court processes to become guardians of their incapable relatives.
These examples illustrate the problems of the previous legislation that we have addressed, and I am confident that they represent significant and meaningful changes to the act. These changes will more realistically reflect Ontario's health care system. They will continue to honour people's wishes about treatment, such as their living wills and advance directives; keep the government out of family matters and strengthen the family's role; reinforce the positive role of health care providers; eliminate needless delays for treatment of incapable people; and achieve a better balance between individual rights and the need for care and treatment.
Overall, this new approach, along with the changes to the Substitute Decisions Act and the repeal of the Advocacy Act, strikes a better balance between individual rights and the need to provide assistance, care and treatment for mentally incapable people in this province.
The Chair: We had scheduled to go immediately to opposition statements, and I'm going to suggest that we have a question period first and then proceed to the statements. Is that satisfactory? We have all three ministers here and I don't know their schedules. I don't know how long they can be here. If we wish, we could start off that way.
Mrs Caplan: How much time will we have?
The Chair: We've only got 20 minutes left but we do have one extra minister, so possibly there is some flexibility; say, the next half-hour altogether.
Mrs Caplan: So how much time will our caucus have?
The Chair: Ten minutes, including your statement. I don't know how long your statement is.
Mrs Caplan: Do I understand you're saying that we'll have 10 minutes, including all the questions we have to ask the ministers?
The Chair: It depends on how long your statement is. We're obviously going to go over the hour that is allotted here.
Mrs Caplan: Are the ministers leaving at that time or will they be available to answer some questions?
Hon Mr Wilson: We would be happy to answer questions for the next half-hour and then we have to leave.
The Chair: Okay, 10 minutes each, then, and the statements will come after that.
Mrs Caplan: There are a number of questions that this very complex legislation raises. I particularly want to thank the Minister of Health for giving us copies of his statement and thank the other ministers for appearing. It is very frustrating to know that in total, our caucus is going to have just 10 minutes to ask those questions. In the last go-round, the questions that we placed on the record -- I'm talking now about Bill 26 -- were never answered before we got into clause-by-clause deliberations.
I'll just start really with one comment. I was looking very closely at Jim Wilson's face when he read the following words, which I agree with, to see if he was blushing, and he was not and he should have been, when he said how important it was that we have legislation -- "We have a responsibility, therefore, to bring forward clear, concise and thoughtful legislation. Confusing legislation leads to an obscuring of policy goals and, in the end, leaves those we sought to protect unprotected." I would suggest to him that that's a very valid statement. I agree with it completely and it's probably the reason he chose not to appear to discuss Bill 26, which was anything but concise and thoughtful and having defined policy goals.
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I'm going to lead with the very first and most important question that I think this legislation raises. There are several, and I will have questions for each of the ministers. But particularly under the issue of confidentiality, my concern is that we see problems here again, and there are some very specific places where I ask if you share my concerns. More than that, I'd ask if the privacy commissioner was consulted on Bill 19, if you have anything from him in writing where he has expressed his concerns and if you'd like to comment on the fact that when any individual -- I'm going to now ask that you address section 60 of Bill 19, which introduces clauses 90(e.4) and (e.5).
This permits, according to my reading, any member, anyone actually, if they're under the Regulated Health Professions Act -- so that's any and all professionals, anyone subject to the Mental Health Act and anyone subject to the Long-Term Care Act, and as I read it, it goes even further and says notwithstanding any act -- any "person who has made or has stated in writing an intention to make an application to appoint a guardian of property or guardian of the person" -- that is either for financial or for health care decisions -- "if the information is relevant," all of the individual's health records can be disclosed to that unnamed person who doesn't even have to tell the individual that he or she has applied for guardianship. Is that how you read this legislation?
Hon Mr Harnick: Let me just, at this point, go back to your references to the privacy commissioner, because we have spoken to the privacy commissioner about this very issue. There will be regulations pursuant to this act that will deal with this that are being drafted and will be the subject of discussion with the privacy commissioner so that we don't have a difficulty later on.
Specifically, we are addressing that with him, and as the public guardian and trustee deals with these sections, there will be confirmation that our regulations comply with what the privacy commissioner is looking for.
Mrs Caplan: Did you have a discussion with him before the legislation was drafted or after it was already tabled?
Hon Mr Harnick: I believe that those who were drafting the legislation spoke with the privacy commissioner.
Mrs Caplan: Be careful. I spoke to him.
Hon Mr Harnick: Well, I'm telling you I believe that those who were involved with the intimate drafting of the details in the public trustee's office have spoken with the privacy commissioner. That is what I am advised. They will be developing regulations, as I indicated, that will deal with the concerns he has and they will be developed in conjunction with him.
Certainly, if you have recommendations and concerns about this, that's why we're going to be here for the next four weeks, so this doesn't have to begin as an adversarial process. We're very happy to listen to the comments you have. I know that you, as a critic, have been very critical of a lot of the areas that these acts deal with. You were critical of the previous government's legislation; I have no doubt that you will be critical of certain areas in this legislation, and we're interested in hearing what those are.
This is not an exercise in adversarial process, nor is it an exercise to see if we can trip up the draftsman, but what we want to do is produce a piece of legislation that is going to be good for the public.
Mrs Caplan: I'm pleased to hear that. My question is to the Minister of Health. The consent-to-treatment portions are yours. Did your officials meet with the privacy commissioner prior to the tabling of the legislation to discuss concerns about privacy?
Hon Mr Wilson: Privacy has been a topic of a great deal of debate with the privacy commissioner. In the context of an overall health care act, as you'll note that during Bill 26, when the privacy commissioner first came forward, his real plea was, and I gather this plea has been going on for a number of years, that the province enter into and the Ministry of Health in particular enter into a comprehensive privacy act for health records. So within that context, we will be continuing to talk to the privacy commissioner.
Mrs Caplan: So the answer is no. No, you didn't meet with him before the legislation was tabled.
Hon Mr Wilson: Not specifically on section 60, which is disclosure of information, which will go through the debate under Bill 26 again and in the end the privacy commissioner did point out some need for improvement. Also, I made the commitment to work with his office and do a comprehensive health statute, which we probably will need anyway as we move towards a smart information system.
Mrs Caplan: There are many parts of this bill that my caucus and I have some concerns about and there are many parts of this bill that we think are an improvement over what was existing. However, if I could make the following statement to the ministers who are here, as I ask the question -- this is my question; I'd like all three to answer it -- are you willing to table a list of all of the organizations that have an interest in this legislation that you consulted with formally or had your ministry consult with prior to the tabling of the legislation? That would be very helpful, so we can see your formal consultation, who you talked to, who had input to the legislation. Are you willing to table that list? We know there was no consultation on Bill 26. I'm assuming there is on this one.
Hon Mr Wilson: You're wrong on Bill 26 and you were wrong every time you said that in committee.
Mrs Caplan: They all said no, Jim.
Hon Mr Wilson: Secondly, do you want the consultation that goes back over 15 years with respect to this legislation?
Mrs Caplan: No, since you've been Minister of Health.
Hon Mr Wilson: Some 200 groups were consulted in 1992.
Mrs Caplan: Since you've been Minister of Health, before this bill was tabled, who did you talk to?
Hon Mr Wilson: Hundreds of individuals have appeared before committees on this legislation.
Mr David Tilson (Dufferin-Peel): Let's hear the answer.
Mrs Caplan: Okay.
Hon Mr Wilson: We've been spending our time in the last six months talking to many, many of those groups.
Mrs Caplan: Will you table the list of who you met with and talked to about this?
Hon Mr Wilson: No.
Mrs Caplan: I find that strange, because I'm now going to have to ask those who come if they were consulted and ask anyone out there who was a part of the consultation to phone us and let us know.
Hon Mr Wilson: Elinor, you seem to want to make a fight out of every piece of legislation.
Mrs Caplan: I don't want to fight.
Hon Mr Wilson: As the Attorney General said, you're setting up this to be another adversarial committee --
Mrs Caplan: It's a reasonable question.
Hon Mr Wilson: -- when we're dealing with very serious health legislation here.
Mrs Caplan: I agree with you.
Hon Mr Wilson: The intent of all legislators, I hope, including yourself, is to get this right. That's what we're working towards here. Again, you're starting today with the same adversarial approach you took in the past, and it's not that helpful.
Mrs Caplan: Listen, I want to make good law. That's why I'm here.
Hon Mr Wilson: I meet with dozens of people every week, and if you'd like copies of our schedules, I'm sure they're a matter of public record.
Mrs Caplan: If you'd like to stay and answer questions to make this better law, let me tell you something: We would be happy to have you here, just as we would have been happy to have you at Bill 26 to do that, to make it better law. If you want to know if I'm still upset about that, the answer is yes, I am, and so is Mr Ramsay and so is Mr Grandmaître.
Hon Mr Wilson: So am I, with the misrepresentations you made on Bill 26 across this province. I'm quite angry about that too.
Mrs Caplan: Yes, we're angry about the way you do business, but this is important legislation.
Hon Mr Wilson: It would be helpful if we talked about the content of Bill 19 and not the process.
Mrs Caplan: It certainly would.
Hon Mr Wilson: Because you bogged down Bill 26 with process questions which weren't that helpful in terms of trying to improve the content in some cases.
Mrs Caplan: It would have been helpful if you had been willing to come to committee so we could have dealt with some of the contents.
Hon Mr Wilson: I was at committee, as required as a minister of the crown.
Mrs Caplan: Let me tell you something.
Mrs Caplan: I'm going to ask the other ministers if they would be willing to give us a list of the groups and organizations that they consulted with prior to the drafting of this legislation and I would like to ask them, if we place questions that we will not have time to ask you personally, if we place those on the record, will you each give us your commitment that those questions will be answered prior to the clause-by-clause discussions being completed on this bill? I don't think that's unreasonable. Two questions: Who did you consult with? Will you tell us? Second: Will you allow us to have our questions answered before the bill is rammed through?
Hon Mr Harnick: Certainly, I've been here for five years and I don't recall the last government ever coming to tell us who they consulted with when they drafted a bill. I suspect that when you were Minister of Health, you never sat in this chair and talked about who you consulted with when you drafted a bill.
Mrs Caplan: That's not true. Yes, I did.
Hon Mr Harnick: I would like to see it in Hansard and I'd like to see the lists that you laid out. At any rate, I'm not prepared to tell you who we talked to in the drafting of this bill.
Mrs Caplan: That gets off to a good start.
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Hon Mr Harnick: The bill speaks for itself, and the bill some people will like and some people will have some criticisms over. What we're here to deal with is to finalize this bill in a form that's the best bill possible for the people who have to access, at least under my part of it, the substitute-decision-making rules.
This bill, at least from the point of view of the Substitute Decisions Act, is responsive to some very significant criticisms made about the bill when the bill was passed. That's the response. You will hear from people -- because I've seen the list of the people coming -- many of whom have been consulted over a long period of time dealing with this particular legislation, which I think Mrs Boyd will tell you was about 15 years in the making and study. It's a very controversial bill, and for every person who probably says that it's a good bill there's a person who says it could be better. We're going to listen to all of those people and their advice and see if we can come up with a bill that is responsive and good for the people of the province of Ontario.
In terms of other questions you might have, I'm interested to hear what those questions are. Of course, if they're valid questions that don't have a motive that is anything but making this bill better, I'm delighted to answer those questions.
Mrs Caplan: My motives should not be questioned.
Hon Mr Harnick: Let me finish, please. I'm sure that officials in all three --
Mrs Caplan: On a point of order, Mr Chair: He cannot question motives.
Hon Mr Harnick: I'm sure that people in all three ministries --
Interjection: He can do whatever he wants.
Mrs Caplan: He cannot.
Hon Mr Harnick: -- are going to do their very best to answer the technical questions that you have. I know and you know that we're both here for the same reason.
Mrs Caplan: I hope so.
Hon Mr Harnick: We want to create the best bill that we possibly can. I'm interested in your criticisms and your improvements and your amendments, and certainly I hope that if you have questions, if we're able to answer them, we will.
Mrs Caplan: Good legislation comes from talking to people. Why won't you tell us who you talked to before you drafted the bill?
The Chair: I'm sorry, Mrs Caplan, the time is up. We're now moving on to the third party for questions.
Hon Mr Wilson: You can never win this battle because you give an exhaustive list of all the people you talk to and you always miss someone, and we're only human. That's the game Mrs Caplan wants to play again -- a process question.
The Chair: Okay, Mr Wilson. Mr Marchese.
Mr Rosario Marchese (Fort York): My colleague and I will be sharing the 10 minutes; I'll have five and she'll have the other five. I have a statement to make in my time. Because the ministers have had their time to make some statements, I'd like to do that as well. There will be plenty of time for questions as we go along, with all the deputations that will come in front of this committee, so we'll leave that to then.
My beginning comment has to do with the government members talking with respect to the employment equity bill, how it was draconian, how it was intrusive, how it had a quota system that was repulsive to all of you and that's why you changed it. Then you introduced Bill 26, which in my view and the view of many is the most unprecedented draconian bill that we have ever seen, is the most intrusive bill that we have ever seen; and not only that -- it had quotas on where doctors would go. It's incredible how you could on the one hand say, "We're going to get rid of a bill that was intrusive and now we're going to get rid of the Advocacy Act because it's intrusive," and you have the gall and the audacity to introduce Bill 26, which has the worst elements of what is draconian and intrusive that we've ever seen and has quotas.
I want to give that context so that those who are watching understand the contradictions that we have to endure in opposition. I want to say that if we, the NDP, can be faulted for anything, it's that we consulted too much, with too many. The list of the people whom we consulted on a number of bills is lengthy. I think you know that.
Our role as opposition, of course, is to be critical of the positions you put forth, and from time to time we believe we have positive things to say and positive changes to suggest. Then it's up to you as the government to determine whether you thing they're positive or not. But it's our job to listen to the deputations and at the end of it say, after hearing all of that, "What have they said that we can bring to your attention that we believe is correct, and that based on that you should listen to them, you should change your legislation to reflect that"?
With respect to the Advocacy Commission, I believe that you, Ms Mushinski, are wrong, that the cabinet is wrong and that this government is wrong in eliminating the Advocacy Commission. Of course, it's always a matter of opinion. That's why we have hearings and we're going to listen to many deputations that will speak to this and to the other changes to the Substitute Decisions Act and the Consent to Treatment Act.
I believe that when you have a population that's aging -- and we'll have more seniors than ever before in the next 10 to 15 years -- and when governments are under growing pressure, as we've seen through your government, to cut services unlike ever before, and when we're seeing financial assistance being reduced unlike ever before, the need for advocacy has never been greater. What you are now doing is eliminating the very institution, the very commission that could begin the work to give people, vulnerable people, dignity, the autonomy that I think some of you want them to have, and their rights recognized and respected. I believe that flows a great deal from the Advocacy Commission. You obviously don't believe that. You believe that, through the various institutions that have existed in the past, they will deliver the advocacy that is necessary to protect vulnerable people. We don't think so. It was because of the failure of the system that we had in place that we put, as a former government, in place a commission that would deal with some of those problems. So I believe that you're wrong in doing this.
I like Mr Wilson's statement that says, "Yes, there's likely to be some disagreement about one or two things that we may have done, maybe more," and that you will be listening closely to what people have to say. I'm not convinced. We certainly didn't think that was the case through the hearings on Bill 26 in terms of you listening. Yes, you made a few changes, and maybe that's sufficient for the government -- I'm not quite sure -- but I hope that you will do exactly what you said, and that is that you will be listening. I'm assuming that holds for the other ministers in the government. Because there will be many deputations that will come forth that will say many things in disagreement with what you have presented. My hope is that if you see a pattern of disagreement that is great by a number of service providers, you will indeed reflect that through changes in your bill.
Mrs Marion Boyd (London Centre): I would say to you very clearly that with a very serious issue such as the protection of vulnerable people, it really is important for us to dedicate our efforts to making sure we've got the best possible legislation. If indeed there are changes in the processes and the administration of these provisions that in fact make it work better, particularly for vulnerable people, then I think you will find a lot of support from all parties, because I think there were real concerns about the cumbersomeness of some of the provisions that were there, although I would point out to you that the legal advice came from the same people you're getting your legal advice from. That's always a little puzzling. But the cumbersomeness is certainly something that all of us would like to see removed.
I'd like to say to the Attorney General that you and I know very well that your role is a little different from any other minister's, and that primary responsibility to protect the constitutional rights of individuals is a very special part of your job but is different from any other minister's. One of the concerns that I think we will hear from a lot of groups is around constitutional rights and constitutional issues; the lack of due process, for example, because of the assumption that families will always act in the best interests of people, that a family member can, on their own determination, determine that a person is suddenly incapable. I think we should have concern about that, and that really leads to a need for us to examine what the likely outcomes are going to be.
All of you have said, again and again, that the majority of families will act out of care and loving, and the majority of institutions, where people don't have families, will operate out of that altruistic sense as well. It may be that the majority do, but your job, sir, is to protect the rights of those where that does not happen and it's the job of government to make sure that the processes are in place to protect those vulnerable people when their rights are being flouted.
I seems to me that, particularly in the area of incapacity, if we're not explaining to people what their rights are at each stage of the game, if we're not even letting them know -- and this bill would allow someone to be declared incapacitated without their ever knowing. Yes, it would, and you'll hear many examples from people who will come and testify about that. If that can be shown to be true, I hope you will agree that we need to change the wording of the bill to ensure that doesn't happen.
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Similarly, in consent to treatment the whole purpose of consent to treatment is based on informed consent. One of the biggest complaints the consumers in the health system have is that there is a growing sense that they seldom get the kind of information they require. It seems to me that part of what we are trying to do with a bill like this that is trying to cover the whole continuum of how we protect people who are vulnerable within our systems is to ensure that the obligation is clearly there -- not just our belief that the goodwill of physicians and other health care professionals will call upon them somehow to give rights advice, but that we find a mechanism to ensure that it is in fact a dereliction of their professional duty not to provide that kind of advice about the rights the patient has when they're going to be declared incapacitated and the consequences of any treatment that is being proposed to go on. That of course applies to the substitute decision-maker too, that informed consent has to also inform the substitute decision-maker of the likely consequences of a decision.
So I think as we go on it will be really important for us to listen to the experience of those who've been working with the act as it has been in place for a very short period of time, what the public trustee and guardian's office has found to be statistically the case, what the Advocacy Commission has found to be the kinds of cases that they're dealing with and where the problems exist, what the different advocacy groups fear and examples of why they fear it, so that as we work through this we can meet some of those fears so that the confidence is here in this act. It's a truism to say that all of us are only temporarily abled and temporarily have capacity. So it's in all of our best interests to make sure that the legislation that's on the books is legislation that all of us would want to live with if we were to be substitute decision-makers or attorneys on behalf of somebody but also if someone were to take that action for us.
As we go through, I'm delighted to hear you say you want to listen to what is happening and that you're prepared to make some changes if there are issues that don't meet what you say are the principles of what you want to do, because quite frankly I think some of the streamlining has really cut out a lot of the protections that were meant to be there in the first place, and we really need to look at that very carefully.
The Chair: Mr Marchese and Ms Boyd, you did it exactly in five minutes each. I congratulate you. Questions from the government members.
Mr Tilson: After the legislation was passed by the former government, one of the greatest fears of people in the public was that when they had power of attorney, when someone had named a family member or any individual an attorney, the government was going to come and overrule all that, any sorts of decisions that they were going to make. So it really didn't matter what the individual did or what the individual requested be done; the state was going to come along and overrule all that or interfere in the process of that individual's life.
Now, Mrs Boyd of course has commented that there may be situations where individuals may take advantage of that situation, notwithstanding that that was a request of the individual who made the power of attorney. That's a reasonable question, notwithstanding the fact that I have quite frankly have a little bit more faith in our families in this province than the suggestion that all families are going to take advantage of -- and I'm sure that wasn't your intention.
Mrs Boyd: I didn't say that.
Mr Tilson: But that's the way it came out, that individuals would take advantage of someone who had become incompetent. I wonder if any or all of the ministers could comment on that issue, to assure the people of this province that that situation simply won't happen, that the state will not be interfering in our lives like the previous legislation had put forward.
Hon Mr Harnick: Certainly that was reflected, I hope, in the remarks I made earlier. That is quite simply why we are looking to re-establish the family as the prime area for substitute decision-making, to expand the role of families in the substitute decision-making process.
As well, and you touched on this because it was very important in, certainly, the determination that we had to make significant amendments to this act, and that's the fact that once an individual takes the steps to appoint someone as their substitute decision-maker, it was very disconcerting to people all across this province to know that under certain circumstances, even though they'd made that power of attorney, there was a chance that the government could step in and take over in spite of their wishes.
We very specifically deal with that in this legislation, to ensure that can no longer happen, that there will not be that override of the government to take away the decision-making process that someone has entered into in the event that they should become incapable. That's another matter that was dealt with very specifically within this bill.
I'll be very interested to see, to follow up on the remarks of the member for London Centre. We want to know whether the rights advice that I believe is sufficient can be conveyed in the way that we've set out in this act. I believe it can. I believe that is fundamental to giving back to families the right to carry out the wishes of their loved one. That's very much what has motivated the changes we have made in this bill.
If there are issues about whether we're protecting or not protecting vulnerable people, I'm sure that some of the legal minds -- and I've seen the list of people who will be presenting to this committee from bar associations and advocate groups that specifically have the legal background and training to talk about whether this properly protects people. I've looked at the list and I've read the commentaries. I'm quite certain that this act does provide the necessary protections, while at the same time giving back to families the opportunity to carry out the wishes of a loved one. That's what this bill is all about.
Mr Tony Clement (Brampton South): I just wanted to follow up on Ms Boyd's comments. There was a bit of an interaction there when Ms Boyd characterized the bill as leading to a situation where people would not be advised if they are subject to substitute decision-making, if I can paraphrase what Ms Boyd said. I sensed a vigorousness in your denial on that front and would like you to elaborate on that for the record today.
Hon Mr Wilson: Perhaps, Mr Chair, I should comment on that because it is an area -- and I singled that in my remarks. Ms Boyd can certainly speak quite capably for herself, but in terms of the Health Care Consent Act, although Ms Boyd did make these comments under her SDA comments, certainly there has to some discussion. You're going to hear from the colleges of the professional health care providers, like the College of Physicians and Surgeons and others, which will strenuously argue that we shouldn't have too rigid a regime with respect to the provision of rights advice and information to persons who are found incapable. The act is very clear in the cases of incapacity and admission to long-term-care facilities, and also psychiatric facilities, in the province.
The act is not as clear with respect to rights advice in all other circumstances. Somebody's in a car accident, arrives dazed at the emergency room, there are things to do in terms of treatment that may fall outside of the definition of treatment in emergency that's contained in the act, and therefore a frank and open discussion has to be had as to what are the best mechanisms to ensure that people are made aware of a finding of incapacity and their rights to appeal that finding of incapacity.
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But again, I would ask members to have an open mind. You're going to hear strenuously from colleges that say, "We'll be back to square one with the NDP's legislation if we put too severe a regime in there." You'll hear others saying, "We can't trust doctors, as part of their clinical practice, to ensure they properly inform their patients." You will hear suggestions made that perhaps the rights adviser or the person who is to provide information to an incapable patient should be someone who's not part of the clinical team.
We as cabinet ministers want to hear, and I think the people of Ontario want, this full debate. It's one of the areas where certainly we'll be entertaining suggestions from the committee. So perhaps that's what you were saying, that it's not foolproof rights advice in every case, but I tell you, following on what the Attorney General said, anything, in my opinion, is better than having strangers called advocates, an army of advocates, come in between you and your family. So we need to find a way to ensure that people are informed of their rights and the processes that derive from those rights, at the same time not having put into the process another layer of bureaucracy and expense and strangers who aren't part of the clinical team or part of the setting. That's what we're attempting to straighten out through this legislation.
Mr Tilson: I have a question to Ms Mushinski and that is with respect to the Advocacy Commission, which is an agency operating at arm's length to the government and which provides advice to mentally ill people. My understanding is that the costing projections of this commission were going to be between $30 million and $100 million. This legislation came into law, I believe, April 1, 1995. Can you tell us how much government money has been spent on this commission to date and, secondly, what they have been doing?
Hon Ms Mushinski: I can tell you that they haven't been advocating advocacy. The only thing that they have been doing is providing rights advice, to the tune of $18 million. They're spending on rights advice approximately $500,000 a month. The Advocacy Commission itself has not done anything other than rights advice for the last 12 months. They have not done anything about advocacy and the rights of vulnerable people at all, other than providing rights advice and, as you suggested, going into people's homes. So it's a professional bureaucracy, and it was the whole intrusive nature of that bureaucracy that a lot of the advocates themselves have been so outspoken about. That's the key reason we've repealed it.
Mr Tilson: Can you tell us what communication the commission has had with the your ministry?
Hon Ms Mushinski: In terms of the consultation process, my ministry has begun consultations with consumer groups, service providers.
Mr Tilson: No, I didn't mean that; I'm talking about the commission.
Hon Ms Mushinski: The commission itself? Well, one of the designers of the current Advocacy Commission -- and former adviser, of course, to Bob Rae -- David Reville, has made several suggestions on future directions for advocacy. My understanding is that he did have a press announcement this morning.
Mr Tilson: I think he's paying us a visit tomorrow, as a matter of fact.
Hon Ms Mushinski: My ministry has begun consultations that include Mr Reville. His comments will be considered along with all of the other comments that we receive in the next few weeks.
The Chair: Thank you, ministers. That concludes your portion. You are welcome to stay, but I'm sure your schedules demand your presence elsewhere. The loyal opposition has an opportunity to make a statement.
Mrs Caplan: I was very disappointed with the answers and obviously the attitude of the ministers who weren't prepared to share with us the consultations that they've made. I would like to say that I believe, as a member of this Legislature over almost 11 years now, that my record is a good one when it comes to wanting to make good laws, and it's a good one whether I was a minister of the crown or whether I was a member of the official opposition, I have always felt that my goal and my role was to try and improve legislation. I was proud of the fact that as a minister of the crown I brought forward legislation that was very specific in its goal, and ensured there was a sense of consultation and a willingness to meet with and discuss the objectives of the legislation.
I'd like to begin with just a few thoughts on Bill 19. It is very complex and important legislation. It deals with issues that affect people directly, not only individuals or ordinary people across the province; it has an impact on those who provide service in the health sector and those who receive service from health providers; it also has an impact on individuals who want to plan for their future and it gives them the right, which I support absolutely, to decide who will decide when they are unable.
How much time do I have? I would just like to check that out because I want to leave some time for my colleagues. How much time will there be for this statement, just a few minutes?
The Chair: Approximately 5 minutes each at most.
Mrs Caplan: Each of my colleagues, or for each caucus?
The Chair: Each caucus I would think.
Mrs Caplan: Each caucus. I guess there's not going to be time for my colleagues, but there will be as we proceed, I hope, an opportunity for us to get this on the record. This is the concern I have. As much as I'd like to spend some time on each of the pieces of legislation, I'd like to deal with the underlying ideology.
The previous government, the NDP, I believe was well intended when they brought forward legislation dealing with the issues of substitute decision-making, consent and advocacy. It is true that those issues have confounded all of us because they deal with vulnerable people and the needs of society to catch up with all of the things that have been happening over these many years: new technology, keeping us alive longer and longer, and people wanting to have more say about that.
It is true we have seen reports, the Manson report, the O'Sullivan report and the Fram report, that gave governments very specific advice. It is also true, as a member of a government, that there were three pieces of legislation frankly ready to go, and I remember calling across to Evelyn Gigantes who was the Minister of Health, saying to her: "Pull the legislation out of your drawer and get on with it. It's important that these things be dealt with. We will be helpful and supportive."
The legislation the NDP presented was very different from the legislation I had worked on and I was critical of it. They started with an assumption that all providers, all the professionals out there, were not to be trusted. That was their ideological bent. They also came at it with an assumption that all families were all -- even though they set in place the kind of very bureaucratic structures that made it difficult for people to be protected. Their assumption was that intervention is good, and that families and providers could not be trusted and that the social structure of our society, which consisted of either individuals -- and the state really excluded families from having an automatic right to participate.
However, the Conservative government I think comes at it with almost a mirror image, the opposite approach, that is equally of concern to me. They start with the assumption that all families and all providers are good. If that were true, then the Fram work, the O'Sullivan work, the Manson work and the fact that we daily hear stories of elder abuse and child abuse, and of vulnerable people in institutions being abused by families and by providers -- it's real. So your assumption that all families and all providers are good is faulty.
I agree with your ministers when they say -- the majority -- that the reality is this legislation doesn't reflect that. This legislation starts with an assumption that all families and all providers are going to act in the best interests of the patient, or of the individual who is incapable. I think it's obscene that you have a piece of legislation that does not require that an individual who is found to be incapable by a provider has no right to be informed that they have been deemed incapable.
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Think of it, Helen. Think of it, all of you. You are found by a provider to be incapable of making a decision about yourself. They don't have to tell you. They can go to your next of kin and do it. You never have to be told that you've been deemed incapable. I don't think that protects the vulnerable in our society. This legislation would allow that to happen. I think that's wrong and it should be fixed.
Certainly there are those out there who might want to say that I'm incapable. Let them have to tell me. Let them have to at least tell me so we can argue it.
Mr Frank Klees (York-Mackenzie): Let's have a vote.
Mrs Caplan: There's something else they should have to do if they believe I am incapable. I think they have an obligation to tell me I'm incapable, that they've decided. They also have an obligation to let me know that there is a process for appeal. That is not in this legislation.
I believe this legislation as it stands today is significantly flawed and does not protect the rights of individuals. It makes this assumption that all families and all providers are going to act in good faith. I think that has to be fixed.
I'm very concerned about the confidentiality provisions of the legislation. I raised them this morning, and so I'd like to move while I have the floor that this committee invite Mr Tom Wright, the commissioner of personal privacy and freedom of information. I believe there are two slots available tomorrow, 4:30 and 5 o'clock, that have not been filled. I spoke to him this morning. He is available to appear and I'd like to formally request that he come before this committee to give us some confidence that he is working with the government and that those concerns can be addressed.
The Chair: Thank you, Mrs Caplan. We have a motion on the floor, properly moved by Mrs Caplan, that we consider calling the privacy commissioner before us tomorrow in one of our vacant time slots. Is there any discussion in regard to the motion?
Mr Marchese: It's a good idea, Mr Chair.
Mr Clement: Could I just ask in terms of procedure, Mr Chairman, there are two time slots that were available for tomorrow that have not been filled. Is that correct?
The Chair: The clerk will have to check on that.
Clerk of the Committee (Ms Donna Bryce): I'll check to make sure they're still open. It's the committee's wish if they want to add an extra time slot if those are full.
Mrs Caplan: I think it's important that we hear from him. If, as you've heard the minister say, they're interested in making this law better, you certainly could have no objection to having the commissioner come and share with us --
The Chair: We don't know at this moment whether or not they are available, but assuming they're available, one of them, is there any further discussion?
Mr Marchese: If there is no slot tomorrow, then the other option is either to create another spot and/or if there is another opening the following day, he could come the following day. I'm sure that between your office and the clerk that can be solved without too many problems.
Mrs Caplan: I want to amend my motion to include that. I think that's friendly. We want to have him here over the next couple of days.
Mr Tilson: I have no problem as long as there's a time slot available.
The Chair: The clerk has advised that the two are available tomorrow, assuming he is available.
Mr Marchese: Assuming he's available, that's right.
Mr Tilson: For a half-hour slot, sure. To be fair to Mr Wright, I don't know how much time he needs to prepare for that, but I guess if he's able to come and make some comments, that's fine with me.
The Chair: The Chair is watching.
Mr Marchese: We'll leave it to you.
Mr Klees: I'd like to suggest that in the event timing precludes him from attending here, at least the motion include an invitation for him to submit something in writing as to his opinion.
Mrs Caplan: He said he's available. He can come.
Mr Clement: So you've already invited him.
Mrs Caplan: What's the point of saying that I'd like him to come, that there's time available, if he couldn't be prepared? So I called him this morning and I said, "Would you be able to come?" He said yes. I didn't invite him.
The Chair: Excuse me. Mr Klees, did you mean to amend the motion by your comments?
Mr Klees: I wasn't aware that the invitation had been extended and accepted, so I'll withdraw that.
The Chair: It's all basically whether he can attend. We have the time slots. I think that's the end of the discussion.
All those in favour of the motion? Carried.
We will arrange to have Mr Wright attend tomorrow. Thank you for the excellent suggestion, Mrs Caplan.
Does the third party have any further presentation you'd like to make?
Mrs Boyd: Yes, just very briefly. I would really like to see, as I said to the three ministers, that we do our work in a very clear and careful and respectful way. We are going to hear very differing views from the consumer side and the provider side on many of these issues, and it seems to me that one of the things the original legislation attempted to do was to find some balance between those views, which are quite extreme.
If indeed it is the view of the government that we did not achieve that balance, then what we really are trying to do here together is to try and find where the weaknesses were and to strengthen those, because one of the things we ought to be very aware of is that we are one of the first jurisdictions to try to provide this kind of protection to vulnerable people, that there isn't a lot of experience to draw on, certainly not in Canada but in other jurisdictions as well, and that we don't always get things right the first time around. As is always true, I think we hear more from those who are the recipients of services, the ones who have that intimate experience on both sides of the question, and we need to be listening and balancing very clearly.
I will say that many of the professional comments from both the legal profession and the medical profession that we heard about this bill were, quite frankly, in my view, efforts on the part of those who have always held the power in this kind of decision-making to try and maintain that power -- to try and really look at the ability of consumers of services, those who are vulnerable themselves in speaking out, and I think we will hear very strong representations from some of the consumer groups, some of the advocacy groups, to that effect.
I hope we will be able to hear where that discomfort comes in, where that concern is about whether or not the rights of those who are most vulnerable are being respected, because it really behooves us as a government that is on the cutting edge of this kind of legislation to try and ensure that in our efforts to streamline it we don't destroy our ability to provide that kind of protection and those kinds of rights.
In response to the concerns that have been raised around families always being wrong or providers always being wrong, that is not the point and has never been the point. It is not my belief that when we talk about protective rights legislation, we are ever talking about the majority. That's not what we're here for. The job is to protect that minority of cases where the vulnerable are not protected by those we might want to assume will protect them or where there's a major conflict of interest between those who are in a position of power over vulnerable people, whether they're family or providers.
One of the things we will also hear from the deputants is this issue of vested interest and conflict of interest in the decision-making, and I think we need to listen to that very carefully. When you are looking after a severely disabled or frail elderly person in your home and that person is a member of your family, you may well have difficulty -- people tell us all the time when they come to see us that they do -- distinguishing between what is in their interest and what is in your best interest or the family's best interest, and that surely is a conundrum many people face.
What we have to be sure of is that in this provision of families having an ability to make a determination, having an assumption that somebody is incapable and therefore starting to make decisions on their behalf, that is really made out of the best interests of the vulnerable person and not done as a result of the very often emotionally wearing situation of the caregiver.
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When we went through the legislation the first time, this issue of caregivers and who could be, as a caregiver, a substitute decision-maker was a very important issue and we did allow those who are immediate family to be a substitute decision-maker, even when they were caring for their loved ones. It seems to me that when we go to the next remove of caregivers who are often in a paid position or who have a vested interest in the property of the person who is vulnerable, that whole issue needs to be looked at again. I think as we look at the new bill, we need to be sure that that protection has not been lost.
I would emphasize we're only talking about a minority of cases, but all this kind of legislation comes forward because those minority of cases are very tragic. We probably will hear more stories, but there have been many stories about very tragic instances where people have been institutionalized against their will, not always in their best interests, where people, as in the recent case that we all heard last week in Alberta, have had medical procedures performed on them as a result of decisions made by substitute decision-makers that ought never to have been made. We have to be aware that those things happen, and that why we have this kind of legislation is to prevent those things from happening, not because we assume every health care provider or every family member is going to act inappropriately.
I think again, Mr Chair, that I would really emphasize that it is going to be important for us to be very attentive listeners to the realities that come in front of us. I think that many people who have been critical of the legislation are equally wanting to protect the same vulnerable people and that it is important for us to listen to the different solutions that may come forward that may or may not accord with the bill that's in front of us. Thank you.
The Chair: Thank you, Ms Boyd. Actually you've run out of time, but could I permit Mr Marchese one minute just to wind it up? Thank you.
Mr Marchese: Just a quick remark. I wanted to respond to Ms Caplan's characterization of what the NDP assumed. She says the NDP assumed that providers and professionals were not to be trusted and also that all families were not good. That characterization, I think, is incorrect.
I think the characterization that Ms Boyd speaks of is the one we were concerned about, and that is, in those situations where some families are not treating the ones they should be loving well, how do we deal with that? How do we deal with the cases where individuals may not have a family and then you fall into a problem? How do we deal with a situation where yes, in some cases, some providers may not be dealing very well with those who are in their care?
The point of it is that you need some protections for those vulnerable people, and that's why our bill, we felt, did that. So the assumption is that sometimes the system fails us, but we need within a bill enabling legislation that protects those vulnerable people.
The Chair: Thank you. We are now going to hear from the Ministry of Citizenship, Culture and Recreation.
Because of the extra minister, we are running approximately one half-hour over and it means that if we could restrict the presentations and questions to 15 minutes each, we'll finish by 5 approximately.
MINISTRY OF CITIZENSHIP, CULTURE AND RECREATION
Ms Luby Carr: Good afternoon. Thank you. I'm going to give a very brief overview of the original Advocacy Act, Bill 74.
The act was designed to promote the rights, dignity and autonomy of people who are vulnerable due to illness or disability by providing them with rights information and advocacy services. The act was designed to offer representation and support to people who are vulnerable. Advocates operating under the authority of the independent Advocacy Commission were to be available to inform vulnerable people of their rights and opinions, tell us others what the person's views are and challenge the practices and policies that affect vulnerable people.
This was to be done through the provision of rights advice and other advocacy services. Currently only the rights advice piece and intake and referral are in place. Vulnerable persons are defined as those who are 16 years of age and over and because of the conditions described above have difficulty expressing or acting on their wishes.
"Advocates" in the legislation were defined as those who were certified by the commission. That could be either commission employees or designated community agencies. The commission itself in the act provides for 13 members and is required to table an annual report to the minister.
The commission is charged under the act with carrying out the functions, including minimum qualifications, standards, a code of conduct and training programs for advocates. The commission is to authorize and monitor the provision of advocacy services by individuals and community agencies. It's an arm's-length agency, although the funding is within the ministry itself.
The act provides for a family and service provider advisory committee, which is to advise on the impact of advocacy services provided by the commission on families of vulnerable adults and health and social service providers. It's an unscheduled agency and has five members and a chair. The committee consults with and advises the commission on its policies and procedures and comments on the effect of advocacy services.
Briefly, there are four kinds of advocacy services in the legislation. There's rights advice, which you'll hear more about. The Advocacy Commission must provide rights advice and other advocacy services respecting the Advocacy Act itself, the Consent to Treatment Act and the Substitute Decisions Act. It has been providing that rights advice since April and will continue to do so until the bill is repealed.
Individual advocacy: Instructed advocacy describes situations where the vulnerable person can express their wishes but doesn't seem to be able to get those wishes across, so they can instruct an advocate on what those wishes are. Then there is non-instructed advocacy, in which case the individual vulnerable person has expressed wishes perhaps before but is unable at this time to instruct an advocate.
Systemic advocacy is also described in the legislation as bringing about systemic changes at the government, legal, social, economic or institutional levels.
The linking of the three pieces of legislation is through the power of the commission to employ rights advisers. Those rights advisers are employees of the commission who implement the three pieces of legislation.
Briefly, the ministry is currently consulting with community groups, holding focus sessions to look at future directions in advocacy -- I'm not going to speak to the rights advice pieces of the legislation -- to look at how the community can become more involved, how services that exist can be better coordinated and strategies for dealing with advocacy and situations of abuse and neglect. That's it.
The Chair: Are there any other individuals representing the ministry who will be making a presentation?
Ms Carr: Not from the Ministry of Citizenship.
The Chair: So we have lots of time available for questions.
Mr Bernard Grandmaître (Ottawa East): Did you have an opportunity to work on Bill 79?
Ms Carr: Bill 74? You mean the original Advocacy Act?
Mr Grandmaître: Bill 74, yes.
Ms Carr: No, sir.
Mr Grandmaître: So you're brand-new with the ministry, or what?
Ms Carr: No, my portfolio started in June, but the ministry did not craft Bill 74, as I understand it.
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Mr Grandmaître: So you didn't have a chance to work on the previous bill?
Ms Carr: Not this one, no.
Mr Grandmaître: Then I'm going to ask you a difficult question that may be a little touchy. The minister was quoted as saying that it was an $18-million bureaucracy. What are your thoughts on this $18-million bureaucracy?
Ms Carr: My thoughts on it? Do you want a status report on the --
Mr Tilson: Surely that's not an appropriate question. It's more appropriately asked of the minister.
Mr Grandmaître: Why not?
Mr Tilson: These people are instructed to prepare a submission --
Mr Grandmaître: I think the lady is capable of answering for herself. If she doesn't want to, she will say no.
Mr Tilson: But surely the next question you're going to ask is what her political affiliation is. I mean, how far are you going to go?
Mr Grandmaître: She'll say no, period. If she doesn't want to answer, she'll say no.
Mr Tilson: I say the question is out of order, Mr Chairman.
Mr Grandmaître: Are you her guardian? When were you appointed?
Mr Tilson: I'm simply saying that asking for her political thoughts is out of order.
Mr Grandmaître: I'm not asking for her political thoughts.
Mr Marchese: Mr Chairman, can I say something? Where the person thinks it's a political question, she can simply say that is the case and move on.
The Chair: Yes, she can. She can simply say no. That's the simple answer.
Mr Grandmaître: Is it too political for you?
Ms Carr: Yes, sir.
The Chair: We have an honest witness.
Mr Grandmaître: Thank you. Now I want to talk to you about consultation. Mrs Caplan did ask the minister to provide us with the list of groups that were consulted and you've just mentioned that this consultation is still ongoing, right?
Ms Carr: Yes.
Mr Grandmaître: You did say this? Okay. Can you tell us what kind of consultation you have had on this section of the bill?
Ms Carr: On the advocacy?
Mr Grandmaître: Yes, on the advocacy.
Ms Carr: There have been, I believe, 10 focus group sessions. A consultant was hired so there have been focus group sessions. There have also been individual interviews by the consultant with experts in the field. There is an interministerial group which is bringing forward various other pieces of legislation and program expertise and, to some extent, this process as well is part of the consultation exercise.
Mr Grandmaître: And it's still ongoing?
Ms Carr: I believe that the actual focus groups have finished and the individual interviews are still going on.
Mrs Caplan: I appreciate particularly the last question, because I think what it tells me is that what they're working on is trying to find an approach to advocacy in the future. Is that the purpose?
Ms Carr: That's correct.
Mrs Caplan: I think that's very interesting because clearly the reason is that there's a recognized need for advocacy services within the ministry. Could you elaborate on that a little bit? I know that much of this is health legislation and the Attorney General's ministry as well, but even though your ministry didn't draft the last legislation, obviously they were committed to advocacy because of the obvious need for advocacy services. Did the ministry propose any alternative models to the minister that you know of before the decision was made to just repeal this act and start from scratch?
Ms Carr: I think the decision to repeal came pretty quickly. The minister was certainly open to looking at new ways -- I can only speak for my minister -- of looking at advocacy services that made the best use of existing government and community resources, and that's the process now. That was in her press release.
Mrs Caplan: And that's what's going on now. Now you're effectively starting all over to look at what would be possible as far as the development of advocacy services. Do you know if your minister has any authority to consider any amendments to this legislation that would give a foundation for protection of some advocacy services without having separate legislation? Is that something that would be possible to be considered? Or you just don't know?
Ms Carr: I don't know that advocacy fits in this legislation or other existing legislation.
Mrs Caplan: I think that's fair comment. The issue of rights advice of course was a part of advocacy, and what we heard the minister say was that the Advocacy Commission has spent most of its time on rights advice. Could you tell us where that rights advice was generated from or the need for that rights advice? Did the commission keep any data or statistics on where it was getting requests from?
Ms Carr: Yes. Because they report to the ministry, they would give monthly intake statistics, so between April 3, when they first started doing the rights advice, to December 31 -- do you want them under the different pieces of legislation? Under CTA, the Consent to Treatment Act, 1,096; under the Mental Health Act, 5,654, the bulk of them; and under the Substitute Decisions Act, 452. Those were actual rights advice intake calls.
Mrs Caplan: So there were over 5,000 under the Mental Health Act and under the Consent to Treatment Acts there were about 2,000?
Ms Carr: One thousand.
Mrs Caplan: And under the Substitute Decisions Act?
Ms Carr: Four hundred and fifty-two.
Mrs Caplan: The question I have is, when this legislation passes, we've got -- now, these were since April, these 6,500? That's a round number, that's a fair --
Ms Carr: It's around 7,000.
Mrs Caplan: We've had 7,000 individuals, whether they are providers or family members or patients, calling the Advocacy Commission for rights advice assistance on knowing what their rights were. When this legislation passes, is there any capacity that you know -- other than for in-patients in a psychiatric hospital who would receive rights advice from the psychiatric patient advocate office -- is there any place else these 7,000 people could call to get rights advice?
Ms Carr: I probably am not the right person to speak to that. I think you'll hear from the Attorney General and the Minister of Health what the plans are for rights advice provisions.
Mrs Caplan: Thanks very much. Of course, that's a concern and your ministry's identified that there is a need for advocacy services, but that's separate from the need for rights advice. People won't even know where to call to find out rights advice. There's a need for that advice, whether it's families or providers or individuals.
Do you have a breakdown from the Advocacy Commission as to where those calls are generated from, how many came from families or individuals?
Ms Carr: Do you mean who made the calls?
Mrs Caplan: Who made the calls.
Ms Carr: I don't have that.
Mrs Caplan: Is there any way you could get us that information? Would that be something you could ask about?
Ms Carr: I can find out. I don't know whether they tracked it from that perspective. The question would be, who generates the rights advice calls to the commission? I'd have to go back and find out.
Mrs Caplan: That would be helpful.
Mr Marchese: Ms Carr, you came into this employ, whatever you're doing, in June?
Ms Carr: I became involved with the advocacy work.
Mr Marchese: In June?
Ms Carr: Yes.
Mr Marchese: As of this very past June?
Ms Carr: Yes.
Mr Marchese: Who was involved in this field prior to you?
Ms Carr: There was an advocacy project team that worked on the policy work. It wasn't at arm's length but it was separate from inside the ministry's policy field.
Mr Marchese: I see. Where is this project team now?
Ms Carr: Once the legislation went through, I believe the project was finished. It was to develop the legislative work and the program work.
Mr Marchese: So in terms of people who might have had a great deal of experience in drafting this, you were not one of those? Is that correct?
Ms Carr: That's correct.
Mr Marchese: So we don't really have someone in the ministry who would have been able to defend what we did or what was done before, other than whatever you've gathered so far, as of June?
Ms Carr: That's correct. My understanding was that it was drafted outside the ministry.
Mr Marchese: Oh, I see.
Can you explain to us a bit about what the commission was doing in terms of rights advice as it relates to systemic kinds of changes and systemic rights advice?
Ms Carr: You mean advocacy, systemic advocacy?
Mr Marchese: You talked about four kinds of advice or advocacy and you listed that as being one of them.
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Ms Carr: They started off with rights advice because that was mandatory under the other legislation. In terms of systemic advocacy, they had set up a regional network and were working with the community to help the community ready itself for the next phase of advocacy. So they had been encouraging community groups to work together to share information, to share training, for example, and to work together basically at the community level. That was sort of the first phase.
Mr Marchese: To deal with systemic problems that there might be in institutions or wherever vulnerable people are.
Ms Carr: That's correct.
Mr Marchese: So with the repeal of this act, this will disappear, obviously. Is that correct?
Ms Carr: The commission part of it will. The momentum might be there in the community to continue it.
Mr Marchese: Is it your sense or belief that somehow that will be picked up by whatever is left over or whatever the ministry can do to pick up the work of the commission was doing with respect to systemic --
Ms Carr: I don't know how to answer it, because there are many groups in the community that are involved in systemic advocacy. Whether they will continue to work together or whether there will be initiatives to encourage that, I don't know.
Mr Marchese: Are you familiar with the kinds of expenditures that the commission has been working under since it's been operating?
Ms Carr: Yes.
Mr Marchese: Can you give us a breakdown of what the commission was originally given, what the cuts meant in July and what they've been working with since July?
Ms Carr: They were originally allocated $18 million.
Mr Marchese: Not $30 million and not $100 million? The original allocation was $18 million. Is that correct?
Ms Carr: That's correct. In July, there was an in-year adjustment and then a second adjustment, and the remaining was $7 million.
Mr Marchese: So they cut $11 million?
Ms Carr: Yes.
Mr Marchese: In July there was an $11-million cut.
Ms Carr: In July and I believe again in October.
Mr Marchese: So they were operating with about $7 million.
Ms Carr: They have, as at January 31, spent $5.1 million.
Mr Marchese: So if we wait another couple of months, it will disappear essentially.
Ms Carr: That's correct.
Mr Marchese: So we don't need to even wait for the repeal. Before this act is introduced, this commission is likely to disappear.
Ms Carr: No, it can't disappear until it's repealed, and there would be nobody to do rights advice. I believe there's enough of a budget to take it to repeal.
Mrs Boyd: These consultations that you've been having since the decision to repeal the act was made, are you generally finding in the course of those consultations that there is real concern about the lack of the Advocacy Commission, the lack of arm's-length rights advice?
Ms Carr: I think I find that a political question. I think you will find many of the people who presented or who attended our focus groups will be presenting at these hearings. I'd rather they speak for themselves on that than for me to generalize.
Mrs Boyd: I find that rather odd. If you're having focus groups in order to focus your attention on policymaking, surely you're aware of the results of those focus groups. I wasn't trying to be political at all. I'm just asking, what did you find out from those focus groups?
Ms Carr: There's both concern and support for repeal of the act.
Mrs Boyd: I see.
Ms Carr: Not among the same people.
Mrs Boyd: Can you give us some idea of what the major concerns are that are being expressed?
Ms Carr: In general terms, the concerns that you will no doubt hear about are concerns around community resources, resources to the community-based services, mandatory rights advice. I'd say those are the three main areas of concern.
Mrs Boyd: Then is it my impression that the ministry is waiting to come forward with any policy suggestions around the provision of rights advice and advocacy until after the hearings of this committee are completed?
Ms Carr: We're not coming forward with rights advice, but in terms of advocacy there are provisional scenarios, provisional options that formed part of the minister's consideration and, in general terms, provided a framework for the focus groups to see what was important to them.
Mrs Boyd: But I think my question really was, would you be able to present those options to the committee in the course of our hearings so that we have some idea of what it is the minister is considering as possible options to replace the Advocacy Commission? I think it might allay a lot of the anxiety that's been expressed if we had some idea of what kinds of options the ministry is considering.
Ms Carr: I don't know that I can make that determination. I can ask.
Mrs Boyd: That would be helpful.
Mr Clement: I think Ms Carr has done a good job in correcting the record, but I just wanted to make sure that we all had the same information with respect to expenditures. I believe Mr Johnson has a question, but I wanted to again put on the record, as a result of the Minister of Citizenship, Culture and Recreation's statement, that the original budget for the Advocacy Commission was $17,781,600. Due to in-year adjustments, that pricetag was reduced by a total of $10,628,900, leaving a revised budget of $7,152,700. Actual expenditures as of January 31, 1996, were $5,151,490. There was some suggestion that the commission had spent $18 million. That was in fact their budget allocation and they actually have in their budget allocation $5.1 million. That still works out to $500,000 a month, though, which is the number we have been operating under. I wanted to revise the record.
Mr Ron Johnson (Brantford): Ms Carr, just to use some of the numbers and some of the information that you were giving us earlier, you indicated that at the present time the Advocacy Commission is really spending most of its resources in terms of rights advice at this point, and some referral stuff. Is that correct?
Ms Carr: That's correct.
Mr Ron Johnson: I guess I'm looking at the approximately 7,000 cases in terms of where they've given the rights advice. Do you have any indication about how long one would go through consultation or rights advice from an advocate?
Ms Carr: How much time it takes?
Mr Ron Johnson: Yes, how long would that take per case, on an average? Is it a few hours, a couple days?
Ms Juta Auksi: My name is Juta Auksi. I'm with the Ministry of Health. The actual rights information is a relatively small amount of information. Someone I think said that the actual information could probably fit into five minutes. No one is saying that it would only take that long, because by definition in the cases where rights advice is required, the person is either somewhat or very incapable mentally, or maybe in a very agitated state because they're civilly committed, various things, so that it would actually take longer because of the nature of that communication.
But it certainly isn't something that's a very lengthy thing. It's a relatively short amount of information, simply telling the person that whatever particular legal status of theirs is at issue, they have a right to have that reviewed at the review board. Only if they want, they can find out about what is involved in going to the review board and how they can apply, assistance with applying if they want and getting perhaps assistance with making a legal aid application or getting a lawyer in some other way, bearing in mind that very few people actually do opt to go for a review. So it would only be in a limited number of cases that there would be that expanded amount of information.
Mr Ron Johnson: I just wanted to make a couple of brief comments, and another question. I find it interesting, and it's unfortunate that you often have to focus on the bottom line when you're looking at organizations like the Advocacy Commission, but I see a budget or expenditures so far of over $5 million, and really what we've done with that $5 million is listened and given rights advice about 7,000 times. That's around $750 to $1,000 per case. I think that in the interest of operating efficiently and seeing what we can do in looking at alternatives, it's important that this committee bear in mind that although on one hand we have to make sure that certain advocacy services are made available, it's very important to explore some of the alternatives, because this is clearly a commission, in my view, that is operating, in terms of expenditures, excessively for the taxpayers.
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Mr Tilson: I'd like you to make some comments about the advocates. The rights advice process, you say, started right away, shortly after the bill became law. I think you mentioned April 3. Can you tell us, how does one become an advocate? What is the training?
Ms Carr: For advocates?
Mr Tilson: Yes.
Ms Carr: As opposed to rights advisers?
Mr Tilson: Yes, as opposed to rights advisers.
Ms Carr: There's provision in the act for training in standards, but they hadn't begun to train advocates yet.
Mr Tilson: I just can't believe you started on April 3. How could there possibly be any training? I'm not saying you, but the commission.
Ms Carr: The rights advisers who were providing the mandatory rights advice were trained by the commission.
Mr Tilson: Obviously before the bill became law.
Ms Carr: We already had rights advisers through the Psychiatric Patient Advocate Office who were already doing rights advice. I think they were doing some of the training as well.
Mr Tilson: So how many advocates are there today?
Ms Carr: Rights advisers?
Mr Tilson: Yes.
Ms Carr: Or advocates? Rights? I don't know the answer to that. I can find out.
Mr Tilson: Does anyone else know that?
Ms Carr: You mean including PPAO? I think the commission hired about 46.
Mr Tilson: Forty-six. I'm just trying to justify this spending of $500,000 a month. I just wonder where the money goes.
Ms Carr: The rights advisers have to meet in person. Often there's a great deal of travel involved. Not every community has rights advisers available to them, so there are those travel expenses. Not all the costs that they spend per month are on rights advisers. They do operate an information and referral telephone line, they do the community development work and they have overhead.
Mr Tilson: I'll say. Can you tell us, and there may be a privacy problem here, what the pay structure is of advocates and advisers?
Ms Carr: The salary ranges?
Mr Tilson: Yes.
Ms Carr: We could probably provide that for you. I don't have it with me.
Mr Tilson: If you could get that, I'd like to know that.
You mentioned non-instructional advocacy. Can you explain that?
Ms Carr: Non-instructed advocacy, which they were not doing because they were not --
Mr Tilson: Yes.
Ms Carr: That is a situation in which the individual cannot instruct an advocate. So either the advocate knows from prior conversation or some other way what the individual's wishes are, but right at that time they are not instructing their advocate.
The Chair: Thank you, Ms Carr.
MINISTRY OF HEALTH
The Chair: We now will have the Ministry of Health. Ms Perun is counsel for legal services branch and is accompanied. Perhaps you could identify yourself, sir.
Mr Gilbert Sharpe: Gilbert Sharpe. I'm the director of legal services in the Ministry of Health.
Ms Auksi: I'm Juta Auksi. I'm senior consultant in the legislation policy unit at the Ministry of Health.
The Chair: Thank you. We're following our rotation. Mrs Caplan.
Interjections.
The Chair: Oh, I'm sorry. Yes, Mr Tilson, you're quite right. Ms Perun, you have the floor.
Ms Halyna Perun: Thank you, Mr Chair. Mr Sharpe will start the presentation.
Mr Sharpe: Having been around the Ministry of Health forever, I suggested that I perhaps might put the issues in a bit of perspective historically, since I seem to be the resident historian. If the committee wishes, perhaps I could do a bit of that for a few minutes.
I'm sure everyone's well aware of issues relating to consent to treatment, the common-law right of us all to refuse treatment if we're mentally capable and the need to have information given to us that would let us make choices and all of those things.
The problem of course to common law is that there was no means of getting substitute consent to care of any kind unless there's legislation that provides a substitute with that role or unless there's a guardian, which in most cases doesn't exist. For example, historically, if you had an elderly aunt who you wanted to assist by getting into a nursing home and consenting to treatment there, you as a family member would not have the legal right to make either decision for this person, even though they might not be mentally capable. Practically, those decisions have been made, historically, even though there has been no legal protection for the facility or its physicians and other care providers.
When I first joined the ministry in 1975, one of the first tasks I was asked to look at was a cabinet submission dealing with treatment. At that time it split ordinary and extraordinary treatment but was an attempt to codify the common law and provide some consistent rules for consent and substitute consent.
Some of you may remember, in 1977 the then official guardian of the province, Lloyd Perry, made public the fact that there had been about 400 contraceptive sterilizations performed in the province on persons under 16. The government of the day was very concerned about a number of issues relating to that, including who was providing consent to those non-therapeutic interventions for these young people, and the government established an interministry committee of the ministries of Health, Community and Social Services and the Attorney General. The official guardian and public trustee of the day were also on the committee. The committee looked at issue relating to sterilization but also was asked to examine matters generally of consent to treatment, and in 1979 the Ministry of Health released a report called Options on Medical Consent that recommended comprehensive consent legislation.
About the same time, the Mental Health Act amendments were moving through the Legislature and it was decided to try to put some provisions in that bill relating to consent to treatment. There were some provisions added at that time that have since been amended, and of course ultimately replaced with the consent legislation last year, but that statute as well attempted to deal with issues of substitute consent, respect for autonomy in wishes and other matters.
In 1980, this interministry committee's mandate was expanded again to look at matters relating to protection for elderly people, the elder abuse issue, and also issues surrounding the Mental Incompetency Act, the great difficulties in using that statute, the delays and costs and standards of proof and so on, matters relating to guardianship. A couple of years after that the so-called Fram committee was set up to provide a forum for community input around the table and for broader discussions, primarily focusing on the guardianship aspects of the legislation. We all know that during that process, Father Sean O'Sullivan was asked to look at matters relating to advocacy, the Manson report on advocacy in psych hospitals was developed, and other related things that happened through the 1980s.
In 1987 the Mental Health Act was amended, looking at questions of competency to consent to treatment, among other things, issues of the ability of a provider to decide that any of us are not capable of making decisions about treatment and simply on that say-so going to someone else without any review mechanism or without any opportunity to challenge. This of course was sharply contrasted with the old Mental Incompetency Act, where in order to remove our assets there were formal proceedings with criminal standards of proof and all kinds of notice provisions and due process.
So in the 1987 amendments to the Mental Health Act, the review board, which has existed since the 1960s, when the first Mental Health Act was established, was given the authority not just to review matters of committal -- involuntary hospitalization -- but also questions where patients felt that they had been improperly declared incapable of consenting to psychiatric treatment. This was in 1987.
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In fact, many of the changes to the Mental Health Act foreshadowed somewhat the ultimate changes in the consent legislation: the fact that autonomy should be respected; the notion that one's wishes, if clear, should carry rather than best interests, which would be a fallback; the ability to select the substitute rather than just having a list of people who would be triggered, which was the traditional approach used in the Mental Health Act since 1978 -- better to have, where possible, one select the person they feel closest to to make decisions; and, as I said, the appeal to a tribunal. Many of these changes appeared first in the Mental Health Act and ultimately in the consent legislation.
As we were moving through the 1980s, other statutes from time to time would have consent aspects and would be amended. For example, the Health Protection and Promotion Act in 1986 amended the old Public Health Act, and a provision was added requiring informed consent to immunizations. That provision was not brought into effect immediately because of concerns expressed by physicians in terms of nursing home problems and getting substitute consents where, as I say, the law did not provide a mechanism to do that. There was no comprehensive consent statute.
In 1990, a consultation paper was released proposing omnibus comprehensive consent legislation, and about this time the Weisstub report on mental competency was also released. Of course, then in 1991-92 various drafts of the consent legislation were put forward, and of course they became law in April.
That's a very brief overview of a very long history, for me, and a very interesting one. I must say that many of the issues that you'll be looking at over the next few weeks, again, there is quite a bit of history to. We, of course, would be pleased to assist in any way in expanding on them.
Ms Perun: My task here is to take you through the critical parts of the Health Care Consent Act. So if I may begin by referring you to page 2 of the legislation, the Health Care Consent Act is referred to in part II. Essentially, there are just two subsections, one that says that the Health Care Consent Act as set out in schedule A is "enacted and comes into force on the day this section comes into force," and then subsection 2(2), repeal of the Consent to Treatment Act, also has effect on the day the section takes effect.
The substance of the legislation, however, is found in the schedule to the entire bill, and that begins at page 60. So if we could take a look at page 60, and I'd like to go through the table of contents with you just very briefly, you will note that the new Health Care Consent Act preserves most of the fundamental principles of the old Consent to Treatment Act with respect to treatment and expands those principles for admission to care facilities, which is in part III, and provides a substitute decision-making scheme for personal assistance plans, which is found in part IV.
Some of the old definitions that were found in the Consent to Treatment Act have been reorganized. They apply to all parts, so therefore they now appear in part I, the general provisions dealing with definitions and interpretation.
So part I, if I may take you through that very briefly, a new section, one that does not appear in the Consent to Treatment Act, is the purpose section of the act. Essentially, it talks about what the goals of the legislation are, and that is provided in section 1.
Part II continues to codify the law of informed consent to treatment. That begins on page 68. I will refer to the other definitions from time to time as they come up in the context of the discussions around the parts themselves. Part II provides uniform consent rules wherever treatment is provided, and it applies to most of the regulated health professions. Who is covered by the legislation is defined by the phrase "health practitioner." "Health practitioner" is defined at the beginning of the legislation and essentially is all of the regulated health professions except for -- who is not covered by part II are opticians, pharmacists and dental technologists. Part II does not apply to them, but for the other regulated health professions this act applies as well as to the naturopaths.
There continues to be a very broad definition of what treatment is. Again, I'll refer you to the definitions section. "Treatment" is defined on page 66 of the definitions. The act applies to "anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment or plan of treatment, but does not include," the following things.
This is similar to what exists currently in the Consent to Treatment Act, except that in the new act some of the items you see in some fashion in clauses (a) through (g) appear in a regulation under the Consent to Treatment Act and now they have been brought up into the legislation.
The kinds of things that this act does not apply to are assessments done for the purposes of deciding capacity, as is set out in clause (a); "(b) the assessment or examination of a person to determine the general nature of the person's condition"; "(c) the taking of a person's health history"; "(d) the communication of an assessment or diagnosis"; "(e) the admission of a person to a hospital or other facility" -- that's there for clarification; "(f) a personal assistance service," and that is then itself defined. There's a definition of what a personal assistance service is set out on page 65 as a definition. Lastly, what the act does not apply to is "(g) a treatment that in the circumstances poses little or no risk of harm to the person."
The principles of consent are set out in sections 9, 10, 11 and 12 of the legislation, the main principle being that "A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless," the person has consented and, if the person is not capable, someone else has consented in accordance with the legislation. This is not new. This is the language from the Consent to Treatment Act.
The elements of consent are set out in section 10, and again this is a codification of what the common law provided and is continued from the Consent to Treatment Act. The consent must relate to the treatment, it must be informed, it must be given voluntarily and it must not be obtained through misrepresentation or fraud.
What is an informed consent is set out in subsection 10(2), and the language here has been somewhat streamlined. The language is similar to what is currently there in the Consent to Treatment Act, but the matters referred to as to the primary aspect of an informed consent have been itemized in subsection 10(3), numbers 1 through 6. So for clarity, it's easier to read this subsection.
But also the primary difference between the Consent to Treatment Act and this new Health Care Consent Act is that there is no longer an obligation on the practitioner to disclose every possible risk and benefit of every alternative course of action. That was the old language of the Consent to Treatment Act. Here it's simply that disclosure has to be made as to the alternative courses of action.
Subsection 10(4) continues the notion that consent to treatment may be expressed or implied.
Completely new is section 11, which provides that a health practitioner is entitled to presume that consent to a treatment includes a consent to a variation or an adjustment in the treatment, provided that the risks and benefits are the same. So if we're talking about an antibiotic for an ear infection, if one doesn't work, the practitioner can use a different one without having to go back to the person or the substitute for a fresh consent.
Secondly, in clause (b) what is new is that the health practitioner is also entitled to presume that consent to a treatment includes consent to the continuation of the same treatment in a different setting. So if a person is moved from one floor to the other, that person brings medications with him or her, and there is a presumption that the treatment can continue until such time as there is a need for a new consent.
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In section 12, and I should mention actually, in the current Consent to Treatment Act, there is a definition of treatment which includes a course of treatment or a plan of treatment, but there is no legislative definition of what those words mean. The new Health Care Consent Act actually defines what a plan of treatment is and what a course of treatment is. That is again set out in the definitions section.
"Course of treatment" is defined on page 64 and "plan of treatment" is defined at the bottom of page 65 and at the top of page 66. The definitions come essentially from the practice that was developed around the Consent to Treatment Act. A plan of treatment, then, means a plan that is developed by one or more health practitioners, deals with one or more of the health problems that a person has or is likely to have, given the person's current health condition, and provides for the administration to the person of various treatments or courses of treatments. So essentially one can manage and obtain a consent to the entire plan of treatment at the outset.
Further direction is then provided in section 12 around how a plan of treatment is to be proposed. It provides that one health practitioner may propose the plan of treatment on behalf of all of those involved in the treatment team, can decide about capacity and ensure that consent is obtained in accordance with the act. This section puts the responsibility on one practitioner to manage the obtaining of the consent.
Essentially how the act works is the same way as the Consent to Treatment Act works. If a person is found capable, the health practitioner turns to the person for consent. The act therefore addresses what is capacity and then what happens when a person becomes incapable.
First of all, the definition of "capacity" is brought right up in part I, because that definition is applicable to part II, part III and part IV. So the definition of "capacity" is set out in section 3 on page 67. It continues to be a twofold test. "Capacity" with respect to treatment or admission or a personal assistance plan is the ability to understand the information that is relevant to a decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision. The act goes on to clarify that a person is presumed to be capable with respect to these matters unless it's not reasonable to presume so.
These are new provisions. They are not in the current Consent to Treatment Act itself. They appear in the regulation under the Consent to Treatment Act and they're brought from the common law into the statute. They are found in subsections 3(2) and (3). There continues to be no age of consent in the legislation. Section 3 simply codifies the presumption of capacity and sets a definition of what capacity is.
If a person is incapable, certain things follow. The person has certain rights of review of the finding of incapacity and the health practitioner can turn to a list of substitute deciders to obtain a decision around the treatment. The list of substitute decision-makers is located in section 18 of the legislation. That's at the bottom of page 72, top of page 73.
What the act no longer provides is any direction in the legislation to the health practitioner to inform the person of their rights after a finding --
Mrs Caplan: Could you repeat that?
Ms Perun: What the act does not provide any longer is a requirement in the legislation that the health practitioner inform the person of a finding of incapacity and no longer provides this requirement that the health practitioner must give a notice of rights in certain instances. The current Consent to Treatment Act does that in section 9 of the legislation. It deals with psychiatric treatment and people who have been found incapable of treatment in a psychiatric facility and then it provides other rules for where a person is found incapable of treatment; that is a controlled act, which is a defined term in the Regulated Health Professions Act. This act removes that.
I didn't really want to deal at this juncture with the consequential amendments, but I think it is useful to point out to the committee that there are certain amendments that have been done to other legislation under this bill that do preserve rights advice, and so I would like to point that out.
The Mental Health Act is being consequentially amended to provide the ability to prescribe who rights advisers are going to be, who will be providing rights advice in psychiatric facilities, and that is located on pages 52 and 53.
Actually if I could just start a little bit earlier, the definition of a rights adviser under the Mental Health Act is found on page 47. It means "a person, or a member of a category of persons, designated by a psychiatric facility or by the minister to perform the functions of a rights adviser under this act in the psychiatric facility."
Then, by regulation, which is set out on pages 52 and 53, there is a reg-making power to define who these rights advisers are going to be, to set their qualifications and requirements; then further, in clause (j), to prescribe and govern the obligations of practitioners, rights advisers, psych facilities and the like around providing information to persons who have been admitted to a psych facility as patients and who are incapable with respect to treatment of a mental disorder. So those are amendments that are done to the Mental Health Act.
But the current Mental Health Act requires in the legislation that for certain things a rights adviser be notified. For example, where someone has been involuntarily committed there is a requirement to notify a rights adviser; or where a child is informally admitted between the ages of 12 and 15, there's a requirement right in the act to provide a meeting with the rights adviser.
The other amendments that have been done consequentially as well under the three long-term-care statutes, that is, the Charitable Institutions Act, the Nursing Homes Act and the Homes for the Aged and Rest Homes Act, there is a regulation-making power to prescribe the kinds of information that is needed to be provided to an incapable person prior to admission to a long-term-care facility. Those are set out on pages 36, 56 and 41.
How is a consent or refusal of treatment to be obtained on behalf of an incapable person from a substitute decision-maker? The Health Care Consent Act, like the Consent to Treatment Act, enshrines the fundamental principle that a person can express a wish in any form while capable and when that person becomes incapable, that wish must be respected in deciding about making decisions around treatment. Now if a person does not know of a wish, the act continues to provide a best interests scheme, and those provisions are set out in section 19 of the legislation.
The new features of section 19, the wishes -- best interests perspective, are that guidance is given in the legislation now with respect to deciding around stabilizing the person's condition. That is new. That is set out in clause (c), on page 75, and there's one little (i), (ii) and (iii), an analysis of the deterioration of the person's condition.
A few new features around substitute decision-makers: Just to highlight, there is now a definition of who a relative is. That was not present in the Consent to Treatment Act. "Two persons are relatives for the purpose of this section if they are related by blood, marriage or adoption." The definition of spouse is clarified. The ranking of the custodial parent versus the access parent has been clarified as well.
There no longer is a prohibition on substitutes to consent to the use of electric shock as aversive conditioning. That is set out in the current act, section 14, and there is no mention in this act to that.
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There continues to be an emergency exception to the requirement of consent. The emergency exceptions are located at section 23 and beyond. There are some minor wording amendments, but what is in fact totally new is subsection 23(3), on page 77. It essentially deals with the capable emergency, where a person may be very much in need of treatment but it's an emergency; there is no ability to communicate with the person; all reasonable steps have been taken; delay required to find such a means would prolong the suffering of the person; and there's no reason to believe the person does not want the treatment. That is something new.
With respect to protections from liability, again they're continued from the Consent to Treatment Act. The protection-from- liability provisions have been extended to address the withholding or withdrawal of treatment. That is set out in subsection 27(3). Further, the protections from liability address the admission decisions made as a result of the fact that someone has been found incapable and a substitute is consenting to the admission as well. That has been added as a clarification to the protection-from-liability provisions.
As indicated earlier, an incapable person continues to have certain rights of review. That person may apply to the board. It's now called the Consent and Capacity Board. Under the Consent to Treatment Act, it is the Consent and Capacity Review Board. The name change is to clarify the confusion with another board that has the same CCRB lettering.
The difference is that the Consent to Treatment Act basically says: "Wait. Do not treat until a meeting with a rights adviser occurs where that is requested." That is no longer there, but the act continues to say that the health practitioner shall not begin the treatment, the treatment shall not be commenced, if the person indicates an intent to appeal to the board, but it's also just the first intention. Subsequent intentions do not trigger that: "Wait. Do not treat."
In addition, with the new provision under the Health Care Consent Act now, there is no longer a prohibition not to treat within the seven-day waiting period. Under the current Consent to Treatment Act, the health practitioner must wait seven days even if the review board confirms the finding of incapacity and even if a person does not intend to appeal. It has been clarified that the treatment can commence if the person does not intend to appeal, but is preserved for those who wish to appeal.
The various other types of applications in existence under the Consent to Treatment Act continue under the Health Care Consent Act; for example, an application by the substitute for directions if wishes are not clear about treatment and the like. What is new is section 35, set out on page 85 of the legislation. Section 35 provides an ability to the health practitioner to make an application to the board where a substitute decider, in the opinion of the health practitioner, is not abiding by either prior wishes expressed while capable or is not abiding by the "best interests" criterion if such wishes are not known.
The other two parts contained in the Health Care Consent Act were not part of the Consent to Treatment Act. That is part III, dealing with admissions to care facilities. "Care facility" is defined in part I as the three long-term-care type of facilities we have under the three long-term-care statutes: nursing homes, homes for the aged. The definition itself is found on page 64. Part IV deals with personal assistance plans, personal assistance services, provided in these type of long-term-care facilities and others that may be added by regulation.
Generally, not to belabour going through all these provisions, they mirror the Consent to Treatment Act wherever possible. The language change reflects the different purpose of the parts, that we're dealing with admission as opposed to treatment decisions, but wherever possible the same flow follows. For example, first of all the requirement is set out in section 38, in part III, at page 86, "If a person's consent to his or her admission to a care facility is required by law and the person is found by an evaluator to be incapable with respect to the admission," who can consent to the person's admission is then further set out. That is basically in section 39, that it's section 18, the substitute decider as listed in part II, with necessary modifications.
Who is an evaluator? An evaluator is the person described in the definition up front in part I, at page 64. It means "in the circumstances prescribed by the regulations" a person who is an audiologist, a speech-language pathologist, a nurse, an occupational therapist, psychologist, physiotherapist, a physician -- those types of people who work with issues around admission to long-term-care facilities and would be in a position to do evaluations of incapacity.
That is how part III works. Again the premise is where consent to admission is required by law, and that wording links it back to the three long-term-care facility statutes that require consent for the purposes of admission to a long-term-care facility. And again the admission decision has to be made in accordance with wishes, if known; if not known, the "best interests" criterion. The incapable individual has rights of review similar to the treatment part; if the person asks for a review of the finding of incapacity, admission cannot occur until such time as the incapacity issues have been resolved.
What flows from having a substitute decision-making theme in this legislation is that there's an easier mechanism to turn to an appropriate family member for substitute consent, and ultimately, if a substitute is not around, the public guardian and trustee, the substitute decider of last resort, has a responsibility to decide about the admission.
Protections from liability flow from that. They are similar to the types of protections from liability that exist in part II for health practitioners.
Part IV deals with personal assistance plans. Very briefly, part IV applies to personal assistance plans in care facilities. What is a personal assistance plan? That is set out in the definition section -- "`personal assistance plan' means a plan developed by a care facility that describes one or more personal assistance services" -- on page 65, and the personal assistance service is then also defined.
Part IV does not say when a consent is required or when it is not required. It merely provides that where a resident is found by an evaluator to be incapable, a decision may be made on the resident's behalf by a substitute decider. The word "resident" is also defined in the definition section in part I.
That person, if they have been found incapable by the evaluator, has a right of review of the finding of incapacity. That person may ask the board to appoint a representative to make decisions on his or her behalf. Also, a substitute can seek directions from the board about wishes that were expressed at an earlier time.
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Part V deals with the Consent and Capacity Review Board. The provisions around the board are similar to those that exist now under the Consent to Treatment Act, with a couple of new features. First of all, there is no longer a requirement that for a case involving capacity, one member of the panel shall be a person with expertise in evaluating capacity. Second, the chair may assign a member to sit alone to deal with applications. That is set out in subsection 71(2), on page 102. There are certain qualifications that member must have before being able to sit as a one-member panel, and they are set out in clauses (a) through (d).
There are certain requirements to preserve a three- or five-member panel. They are located in the Mental Health Act still. The Mental Health Act provides that for involuntary admission reviews, for example, there always be a three- or five-member panel, and the same is preserved for reviews of informal admissions of children between the ages of 12 and 15. The three- or five-member panel is preserved there as well.
Part VI deals with miscellaneous provisions, including some offence provisions, in that, for example, it is an offence to knowingly contravene wishes expressed by a capable person. That is set out in section 82.
The remaining transitional provisions are quite detailed, very technical in nature. Essentially they are there, on page 108 and following, to ensure that there is a flow between the old rules and the new rules without any gaps. That's the intent of these very technical sections of the legislation.
Finally, a number of consequential amendments have been made to other acts. Some are very technical and mean nothing more than simply that the term "Consent to Treatment Act" has been replaced with "Health Care Consent Act." For example, you will note under the amendments to the Child and Family Services Act or the Children's Law Reform Act, these were amended when the Consent to Treatment Act was proclaimed in force, came into effect at the same time, and the consequential amendments just tidy up the language.
Generally, I think I've provided a comprehensive overview. There are other features of the consequential amendments that I could go through if would wish.
The Chair: Is that the complete presentation from the Ministry of Health?
Ms Perun: Yes.
The Chair: Mrs Caplan, starting on questions.
Mrs Caplan: How much time do I have?
The Chair: We have until 4:20, approximately a half-hour, so it's 10 minutes each, per caucus.
Mrs Caplan: Oh, not a half-hour for me?
The Chair: Sorry, Ms Caplan, not today.
Mrs Caplan: There are a lot of questions.
Thank you, Halyna and Gilbert and Juta. Could you provide a summary of every place in the legislation where there is a right an individual has to make an application or appeal to the board? In every case, I'd like to know how they would know about that right.
Is there in this act any obligation on anyone to tell someone when they're incapable that they have those rights? For example, the Mental Health Act has a provision that where someone is deemed incapable under that act, there's an obligation to actually give them the forms for appeal. Is there a similar provision in this legislation?
Ms Perun: There isn't. Under the Health Care Consent Act, references to legislative requirements of what a health practitioner must do or must not do vis-à-vis after a determination of incapacity have been removed. But certainly we can go through and point out the kinds of applications in existence, the kind of applications a person may be able to make to the board. And yes, under the Mental Health Act the requirements to have meetings with rights advisers have been preserved right in the legislation. There are rights of review that flow from certain things happening under the Mental Health Act such as a right of review of involuntary committal; first of all, when there is a committal it triggers a meeting with a rights adviser.
Mrs Caplan: I think it would be helpful for the committee if we saw a list of all the places where an individual would have a right to either make an application or appeal the finding of incapacity; if we knew whether or not there was any obligation on anyone to let them know of the finding of incapacity; who would make decisions for them if they were found incapable, whether or not they were informed of that; lastly, whether or not there is other legislation such as the Mental Health Act where the obligation does exist.
It's a policy question why those provisions were left out, because frankly I don't think it's a huge obligation to say: "By the way, you've been found incapable and here are the forms. Should you wish to appeal, you have that right." I don't think you need the language of the former act, frankly, which I thought was unduly onerous in its procedures for rights advice and so forth, but at least people should know they've been found incompetent and at least the person who makes that finding -- I think you call them evaluators -- that evaluator, no matter who they are, should have the obligation.
That's up front and I'd like you to give us that information. I hope the government will think about amendments that would do that, because I think anyone would like to be told that they have been found incapable of making their own decision, and secondly, that they have the right to appeal and what that process is, and even be handed an application form. Certainly I would, and I tend to look at these things on the basis of, if I feel that strongly about it, perhaps others would agree, rather than just having someone else unnamed.
Now I know that if I or anyone else signs a power of attorney for substitute decision-making, that would be the substitute decision-maker, so I'm not talking about where a power of attorney exists. I want to be really clear that's not the case.
I have a couple of other questions. I agreed with the statement from both ministers who said this was to streamline and to ensure that the office of the official guardian and trustee was the last resort. I agree with that.
As I read the legislation, I really think, and I wonder if you would agree, that there is a potential when you have lumped family together into one category -- I would like to know what will happen if well-meaning relatives disagree on what's in my interest? Would that not encourage an application to bring in the public trustee faster, then, if you had clearly the hierarchy of whose wishes within the family should be listened to first?
Ms Perun: The hierarchy has been preserved, the one where it has been sort of clumped as a child or parent has the same --
Mrs Caplan: Right?
Ms Perun: Yes -- ranking. Otherwise, the brother or sister come below and then any other relative. Ultimately, yes, if you're within one category and if you cannot say outright that you don't believe anyone else who is equally ranked as you would have a problem with your deciding, and if there's actually a dispute in the ranking, then the public guardian and trustee becomes involved.
Mrs Caplan: Again, I'm sure we'll hear this from presenters who are going to come forward, but I would suggest to the government that you rethink the hierarchy of ranking and make it very clear, because as this reads now, I think you would encourage the public trustee who we all think -- I think we all think -- should be the last resort. I should talk for myself: I believe the public guardian and trustee should be the last resort.
If it's clarified as to the hierarchy to ensure that the public guardian and trustee cannot come in if parents and children disagree by making sure those categories are clear -- because I agree with you, I think that if the responsibility is not clear, then you could well see applications made unnecessarily as to who should have that responsibility. I'd ask if you'd consider that and perhaps an amendment to that or some discussion following the hearings.
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One of the other concerns I have is with the provisions of the Mental Health Act. We know that if a person is committed in a psychiatric hospital, an independent rights adviser will continue to let that patient know of their rights, so they will have rights that others who are deemed incapable will not. That's accurate and correct, right, Halyna?
Ms Perun: Right.
Mrs Caplan: Okay. Under this new legislation, the law will now permit an administrator of a general hospital or an administrator of a nursing home or anyone where there is no substitute decision-maker appointed, where there's no family or a caregiver -- that person could be, I think, in a serious potential conflict of interest if it's the hospital administrator who makes that decision. Have you considered that under Bill 19 to put that in place?
There's another provision, as you think about that, which prohibits caregivers entirely, but it seems to me that the test should be, are you going to benefit?
Ms Perun: Are you talking about who these rights advisers should be?
Mrs Caplan: Yes.
Ms Perun: Right. There is again the regulation-making power that will set out who these rights advisers are going to be.
Mrs Caplan: But don't you think that in the legislation you could assure people that a rights adviser could not be someone who would financially benefit by that position, whether that's an heir -- one of the problems with the bill is you now can have a substitute decision -- I know the Ministry of Attorney General was also saying -- as I read it, a decision-maker where the witnesses to it are children who would be the heirs. There's no requirement for outside witnessing and therefore people could be pressured into signing a power of attorney inappropriately where their heirs and those who will benefit economically will be doing the pressuring and the actual witnessing of the document. So there's no outside test. That's one concern I have.
The other is, who gives the rights advice? If someone's advising you who can benefit from your making one decision or another, shouldn't the law protect against that? I understand that a lot of it can be defined and fine-tuned by regulation, but it seems to me the law should offer those protections. I'd like you to think about that and tell me if I'm wrong as I've read the legislation.
The other I guess concern I have is, are there adequate safeguards in place -- well, maybe this is the next one. That's under substitute decisions; I've made a point here.
The concern I have is that we've seen elder abuse in institutions, we've seen elder abuse in families, just as we have seen, unfortunately, child abuse and those sorts of things. I'm concerned that this legislation brings with it a premise, as I said earlier on, that because the majority are good and the majority of families care about old Aunt Nellie whose money they're going to inherit, and certainly wouldn't want to consent on her part to a treatment that might lead to her early demise, there are some who in fact would want to consent to a treatment or pull the plug, because those are the kinds of decisions that these people are going to be called on to make when they have a very definite financial interest. I want to know, is there anything in this legislation that protects against that? I haven't found it.
Mr Ron Johnson: Section 35 does that.
Mrs Caplan: As we move to section 35, how is that enforced? Who's got the obligation to blow the whistle?
Ms Auksi: The person who would be in a position to know that something was amiss -- that's always a problem, no matter what legislation says -- and the person who would be in a position to know in this case would be the health practitioner who is proposing the treatment. If the treatment is being refused by the substitute decision-maker and it appears that the substitute decision-maker isn't following the substitute consent requirements, then the health practitioner can apply to the review board for direction and the review board then scrutinizes that decision.
That's something that's new. Currently, under the Consent to Treatment Act there's nothing like that and so what we have said is that if someone truly has concerns -- in an emergency even the Consent to Treatment Act the health practitioner can treat notwithstanding if the substitute is not complying with the substitute decision-making rules, but in a non-emergency they pretty well have to turn to the public guardian and trustee in this investigate-protective role. People seemed to think that wasn't really enough because it's just too general and doesn't necessarily provide the immediate fix.
The other thing, of course, is that anyone else can apply to the Consent and Capacity Review Board to be the substitute decision-maker.
Mrs Caplan: I have some concerns about that also because anyone can make that application without even notifying the person on whose behalf they're going to be making the application.
Ms Auksi: But the person would be a party and certainly the review board would have the responsibility to screen out any inappropriate applications.
Mrs Caplan: One of the other concerns --
The Chair: Excuse me, Mrs Caplan. Perhaps we could move on to the third party, please.
Mrs Boyd: These are all the kinds of issues that arise. If, for example, you had two children, so they're in the same category, one of whom was named a substitute decision-maker for personal care and one of whom had a power of attorney for property, and given the provision to agree to the care plan which we know involves cost because the personal assistance plan involves many services for which already there are fees and probably more in the future, and there is a disagreement here between the person who holds the money and the person who wants to determine the treatment, whose view takes precedence?
Ms Perun: Under the health care consent provision who has the authority is the person who is the personal care substitute decider.
Mrs Boyd: Whether or not they can guarantee there'll be money given to provide that service. You know what this is like, you consent to the treatment and the next thing you have to do is sign the paper saying you'll pay for it. Only if that doesn't happen, then what happens?
Ms Perun: Then you cannot provide the treatment.
Mrs Boyd: Right. It seems to me this is a problem. I think it's a really serious problem, quite frankly, that we need to really look at around those kinds of disputes. We very clearly know that the personal care decider doesn't have to be the same person who is the property decider. It seems to me that unless we come to some conclusion around how that is resolved, in the best interests of the person, we've got a bit of a problem.
Given that in many cases both people may be recipients or potential recipients of an estate from this person, we really have a very big conflict of interest unless we can resolve this in a way that ensures the best interests of the person. I think that is something you need to look at and it really follows along from what Mrs Caplan was asking. It may be that when the public guardian and trustee talks to us, they have a solution for that; that would be delightful.
Ms Auksi: I think it really is partly an issue of whether the financial power of attorney, if that person can't do anything different because the financial resources aren't there, or whether it's a matter that they're not acting properly -- if they're not acting properly, perhaps people from the PGT's office might be able to address what remedies there are if a person who's managing property is not acting in the person's best interests.
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Mrs Boyd: The contrast might be between the cost of maintaining someone in their home, which generally speaking, given the current funding of home care, is considerably higher than institutionalizing somebody -- how that decision is made. If you can't get a doctor to say, "Either one would be all right for the person," how is that decision made? It seems to me that this issue of arousing all sorts of family conflict, when that's not what's intended -- and we understand that -- is a potential here, and also this issue between a parent and a child.
Mr Auksi: You mean the parent and the adult child?
Mrs Boyd: Yes, the parent and the adult child of a person who becomes incapacitated. You can have a real three-way thing there. I agree that either the hierarchy has to be made clearer or there has to be a dispute resolution mechanism that's relatively quick, that determines what's in the best interests of the person, and that may be difficult if they haven't expressed wishes.
If in the personal decision-making thing they've expressed very clear wishes about what they want for their health, then yes, it's fairly easy to say the person holding the money bag is not acting in their best interests; that's relatively easy. But if they haven't left those instructions, that's when you get into some difficulty. It seems to me we ought to resolve that as we go along.
I'm very concerned and wonder why you would've taken the provision for someone who's capable of doing the evaluation off the board. Why would you take that protective component off your board when you're putting it down to a one-person board? That person could be a lawyer who knows absolutely nothing about the capacity evaluation.
Ms Auksi: First of all, in the requirements for sitting as a one-member panel, that particular lawyer-member has to have experience in an adjudicating capacity, has to have been a member of the bar for 10 years, has to have had two years' experience with the board generally.
The other thing that people sometimes forget is that the board can call upon expertise. For example, if a case comes before the board that is a very difficult call about capacity, the board can require an assessment to be done and can share the findings of that with all the parties so they can comment on it. It's not as though having special expertise on the board is necessarily the only way of getting at that kind of expertise.
Mrs Boyd: The Mental Health Act covers only those who are in mental health institutions. Am I right?
Ms Auksi: Yes. The Mental Health Act governs psychiatric facilities scheduled in the regulation.
Mrs Boyd: As we deinstitutionalize these people, the vast majority of people with mental disorders are living among us in the community and may or may not have capacity, yet the protections in the psychiatric institutions are not there for the person who may have a very similar problem within the community. Does that make sense?
Ms Auksi: The main additional vulnerability that people in the psychiatric facility and institution have is that they may be subject -- and many are, who are the recipients of rights advice -- to involuntary admission.
Mrs Boyd: Many are subjected to involuntary de-admission these days. I understand what you're saying, but I'm not sure, in terms of looking after vulnerable people, that we're really doing much to do that. The rights advice issue still comes along. It may well be that in hospitals and provincially regulated, in a formal sense, facilities, the rights advice may not be as important as it is in homes for special care or the boarding home situations, where we know how vulnerable people have been and how they've been taken advantage of in terms of being overmedicated in many cases, with treatments seeming geared to keep them quiet as opposed to for their best interests. We all know the horror stories around that, so I don't need to go on with that.
One of the real concerns is that without this requirement on people running a facility to ensure that people know their rights around appeal, they'll never appeal. Even where we have those rights in place for young offenders, for example, we often see that they aren't actually given that information. It's a big problem. Adding to that is my concern: How vulnerable, given that there's no rights advice, is all this legislation to charter challenge again and again and again? Can you tell us?
Mr Sharpe: Perhaps I can jump back in. The whole question around rights advice and who should get it in what circumstances is something we've heard a great deal about over the last few years. Many providers tell us, for example, that if the provider has to Mirandize their patients, it can sometimes cause great distress to the patients and their families. I know that sounds a bit patronizing.
Mrs Boyd: Just a bit.
Mr Sharpe: They give the example of Alzheimer's patients who may be quite confused and frightened and who need an elective procedure; they may be in some pain and they've waited for the bed. To then say to that person, "You're incompetent to make your own decision; therefore we're going to go to your son or daughter to make that decision for you, and by the way, you have a right to counsel and a right to appeal to a board if you're not satisfied," could create greater distress and concern. And because there's just such a worry to begin with, they may then say: "Fine. Get me my lawyer and let me go to the board." Many times they don't want that, and how do you tell? Not that that's a justification, but that's an argument that's been made. I know health care professionals will appear before the committee, and perhaps they have other experiences that might be useful.
Mrs Boyd: If it's an emergency or life-threatening, the provision is there to go ahead and do that, but we're talking about things that are not serious.
Mr Sharpe: Elective procedures. If someone needs their gall bladder out and they're in some pain but it's not an emergency situation, they're an Alzheimer's sufferer, they're confused, the family is there and willing to consent, the bed's been obtained, is it appropriate for the physician in every case where the incapacity finding is made to tell them these plethora of rights? I'm not passing judgement. I'm just suggesting that there may be cases, as physicians and others have described, that could create greater distress for the person.
The other thing is that, as Halyna described, this legislation applies to a wide range of health care professionals in a wide range of settings. If this requirement were retained, it's arguable that if you took your granny to the dentist to have her tooth filled or to have a bunion removed by a podiatrist, and she was sufficiently unclear to be unable to give an informed consent -- in fact, it was your consent; you were there and you were providing the consent to the practitioner -- it would then be necessary for that dentist or podiatrist to get into this series of rights before the tooth could be filled, before the bunion could be removed. There's a host of other circumstances.
That may or may not be appropriate, but again, it was described as potentially creating some serious impediments to continuity of care, particularly for certain categories of individuals.
The other thing, and I think one of the most important aspects of all of this, is that groups like the College of Physicians and Surgeons have told us that they were aggressively going to be pursuing what they see is really their role through their patient relation committees under regulated health professions and other means to ensure that physicians understood their obligations in dealing with their patients; that it's their role to establish guidelines; that it is professional misconduct for a member not to obtain a proper consent, and the consent rules are clearly laid down in the legislation; and that they see it as a matter of peer obligation, or the professional regulatory body's obligation, to establish those parameters and guidelines and circumstances that might take into account withholding certain types of information in very distressful situations so that the professional is able to exercise some discretion and judgement while complying with the law; that it's their role and not the government's to tell them what they must do in terms of this peer review.
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Mrs Boyd: Do you have an indication that they would be prepared to write that into the regulations under the Registered Health Professions Act as opposed to guidelines? Other things have now been written into the regulations that met some resistance initially, not subsequent to Bill 100, for example. Do you have a sense that that would be an appropriate compromise position here?
Mr Sharpe: We don't, but I know a number of these colleges are appearing before the committee, and you may decide it's appropriate to put that question to them. In speaking with hospitals, the review board itself and others, they've all spoken of their intent to promulgate the rights available to patients throughout facilities and institutions. I know that the Ministry of Health has indicated that there will be attempts to communicate through brochures and booklets in different languages and posters, without necessarily having to legislate.
It seemed a bit different than guardianship. Guardianship tends to be a discrete happening, and the public guardian and trustee is going to take over an area of your life for a defined period and gives you certain information. Treatment, of course, is a continuum where there'd be variations in the kinds of treatment and the health professionals and the settings. It was considered quite onerous to expect that in each situation where a treatment is being varied, each time a different health care professional turned up, they would have to, as I say, Mirandize their patients with these plethora of rights.
Again, there were some convincing arguments made by the CPSO and other groups that they see this as a matter of professional regulation, but as the minister indicated, it's certainly a matter of listening to people from all sides who come to the committee and keeping an open mind.
Mr Ron Johnson: I want to reflect a moment on some of the criticisms of the legislation so far, in particular from Mrs Caplan. I guess she initially was critical of the New Democrats, saying that the initial bill was based on the fact that the health profession was all good and families were all bad, and then she criticized our government for what she called the mirror image, in that the fundamental basis of the legislation was the belief that all families were good. Although I understand the criticism, I happen to disagree with it. The reason I disagree is that I look to section 35. I believe section 35 clearly gives -- and I want some clarification on this -- practitioners the ability to apply to the board for a determination of whether the substitute decision-maker complied with section 19.
What I'm getting at here is that the legislation appears to address that very concern, that in many cases you may not have substitute decision-makers who are operating in the best interests of the patient and it gives the practitioners the power to take it to the board. And that, of course, is notwithstanding the fact that if it's an emergency situation, the practitioner is bound to act anyway in the best interests of the patient.
My question, though, where I do have a bit of concern, is if a practitioner is under the belief that a substitute decision-maker is not in compliance with section 19 and decides to go the review board with that, how long is that process? What is in place to ensure that the patient's health doesn't deteriorate further while we wait for this process to go through?
Ms Perun: The application to the board has to occur within seven days; it's a very short time frame for the hearing, the review, and the board, after a finding, whatever the finding is, has to render reasons within a day -- that kind of thing. It's a very short time frame set out in the legislation.
The act is in fact silent on what actually is to happen with the patient in the meantime. It doesn't really say either way, "You must continue treating" or "You must stop treating," basically, but the issue would be if the health practitioner is of the view that they have a legitimate consent, they would continue treating on the basis of that consent; and if they feel that they do not, then it will be an issue for them whether they should stop or continue. It would depend on the health condition of the person. The act does not direct what actually has to happen in the situation.
Mr Ron Johnson: During that seven-day period?
Ms Perun: That's right. The board would have to meet within seven days, but it may actually meet a lot earlier.
Ms Auksi: We meet a lot faster. Michael Bay, the chair of the board, if he knows that something needs to be decided very urgently, I think sometimes can get these things together within a day or two.
Mrs Caplan: Supplementary question, if I could. I agree that would work in the situation where the health practitioner made application, but if there's nothing in here, in this legislation that requires notification of a person who's been deemed incapable, how would they apply to the board if a decision has been made to treat them and they don't know that they have been found incapable? Section 35 would not help them even though they're listed here as an incapable person, would it?
Ms Auksi: This isn't the review of incapacity.
Mrs Caplan: Right, I know. The situation is this, and it's exactly -- I think it's a very good point that was raised by Mr Johnson -- where there's a family member and there's a disagreement, or a substitute decision-maker and there's a disagreement, with what the health practitioner wants to do, then they can all apply to the board. But where the health practitioner and the family agree on a person who has been deemed incapable, and that incapable person has the right to appeal, how does that incapable person know they've been deemed incapable? Because they're not even told. So they could have surgery performed on them and they don't have the right to appeal on their own behalf. They don't even know. So how does section 35 protect them?
Ms Auksi: It wouldn't be section 35.
Mr Ron Johnson: It would be a different --
Mrs Caplan: But they're listed here in subsection 35(2).
Ms Perun: Yes, under section 35 they're given notice, they are parties, but again, in that issue that you've raised, if they don't agree that they're incapable and someone's making decisions on their behalf, the issue is, how would they know how to apply to the board? As you've heard Gilbert say, you'll hear from the colleges that they say that they'll take on that responsibility in providing direction to their members as to what kind of information should be provided and what is appropriate.
Mr Clement: Could I just hopscotch from Mrs Caplan's point and probe a bit on this? On the interplay of the statutory law and the common law, there is a duty of care that health practitioners are obligated to provide. Is that correct?
Ms Perun: There's a duty of care, yes.
Mr Clement: How does that interplay with the situation that Mrs Caplan has outlined? I guess none of us is concerned where the individual is not advised that he or she is deemed to be in an incapacity situation and then everything goes well. There's been no harm done. No one's going to sue anybody else because they got better. But I guess it's the case where things don't go well and then there's an allocation in our society as to who is paying for the mishap, I suppose, if I can put it that way. Is that where the duty of care comes in? Is that where the College of Physicians and Surgeons is saying, "Yes, if things go wrong and if a doctor does the incorrect thing without advising of rights and obligations," is that where it comes into play, or am I on the wrong track here?
Mr Sharpe: No, you're right, in part. There's a duty to look after people in a competent, reasonable way or that could result in negligence. There's also a duty at common law and in the statute to inform patients of various aspects of the treatment in order to permit them to make a decision. The issue I would raise, though, goes more to a practitioner having decided that the patient is not able to make that choice and they move to a substitute, and if the patient's not happy with that move, how do they know that they can challenge it?
In practical circumstances, this tends to arise usually where the patient is objecting to the fact that someone else is going to make a decision for them, or they may in fact not want the treatment at all, but they're not capable. Of course, there are shades and degrees of competency, and at times people can fluctuate in and out, and sometimes it makes it very difficult for the provider in the facility to know who to turn to for this decision.
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But in these circumstances, again, the provider would be expected, where the person is saying, "I don't want to proceed with this," and they've been found incapable, as good practice to tell them: "Yes, there is something you can do about it. You can challenge this decision if you want to," whether it's the professional themselves or the institution which they're in or other mechanisms for communicating that. We have many laws that provide rights and responsibilities on people without legislating various procedures for notifying them about those rights, but usually there is a multitude of mechanisms available to ensure that they know about it.
There were some assurances given in that regard, but as I say, as the minister indicated, perhaps the committee may find it useful to hear from a number of these regulatory organizations to determine whether that's sufficient.
The Chair: Thank you. We have one minute each for Mr Klees and Mrs Johns. If you'd go first, Mrs Johns.
Mrs Helen Johns (Huron): I just wanted to ask a question about family members and when they don't agree on the treatment for their loved one and they're both saying, "Hey, I think it should be done a different way." When that happens, even if they're at the same level or whatever, that then goes to the appeal board and is resolved. Can you tell us kind of the process of how two individuals would deal with a disagreement about how the process should work for their loved one?
Mr Sharpe: For one second before we get into that, again, what providers tell us is, rather than creating immediately an adversarial stance where one must go to some kind of a tie-breaker, in many circumstances the practitioner will work with the family and the extended family to come to a reasoned choice. No one wants a confrontation in that setting, if it can be avoided. But there is a process.
Ms Perun: Well, there isn't really that much of a process. Where the two people are in disagreement and they cannot agree, the act provides that the public guardian and trustee shall make the decision in their stead. That's provided in subsection 18(6). Yes, we have heard from the providers that often it works very well to say to the two sisters who are disagreeing about the care of their mother, "Look, if you two can't come to an agreement, then we're required by legislation to turn to the public guardian and trustee," and often then it sort of triggers them into sort of thinking, "Oh well, we better resolve this." But ultimately there is a mechanism whereby the public guardian and trustee will become involved. I don't want to speak for that office, but I understand that part of their policy is to facilitate a resolution, if they can.
Ms Auksi: If I can, may I say a little bit more about that? Because if the incapable person appears to have a choice as to who they'd prefer to have make the decision, then the incapable person can also apply to the board to have their choice of decision-maker appointed.
Mrs Boyd: Except they don't know that they have that right.
Ms Auksi: But the thing is, in that situation the health practitioner could tell them --
The Chair: Excuse me. Mr Klees has the floor, please.
Mr Klees: Thank you. I'd just like to return very briefly to the previous point that was under discussion. I think it really deals with the issue of disclosure to the patient in the circumstance where the attending physician's made a decision that they're incapable. I don't think there's disagreement in this room among committee members that it's very important that the patient have full disclosure. I think what you're suggesting, Mr Sharpe, is that we would look to some of the delegations here from perhaps the College of Physicians and Surgeons and others to help us work that out practically, because I too am very concerned that a patient have that full disclosure and also have the opportunity to appeal that decision. I think the question now is, do we leave that to regulation or, as legislators, do we ensure that that principle is entrenched up front in legislation? It's something that we really should give very serious thought to. Do you have any suggestions yourself from the discussions that you've had with some of the colleges and so on as to the direction that they may be heading and what we as committee members should be looking for?
Mr Sharpe: I don't want to prejudge their presentation in any way, but I believe the minister did flag the issue in a fairly neutral way to say that he is open to listening as to whether or not the committee is satisfied that these regulatory bodies and other mechanisms -- perhaps the chair of the review board is going to appear. In some jurisdictions, like Australia, I believe that the review board also has a role of information and education. I know that he feels fairly strongly about that.
So if the committee is satisfied that these other mechanisms are sufficient and it's not necessary to legislate rules to direct providers and others to tell them precisely what must be said in what circumstances with all patients, then that will be the decision. If, on the other hand, there is a lack of satisfaction with the explanation on the protections that are relatively informal, as opposed to legislating, there may be some need to look to alternative language that isn't so specific as to tie one's hands in every circumstance but still would ensure that basic information is provided.
The Chair: Witnesses, I thank you very much.
MINISTRY OF THE ATTORNEY GENERAL
The Chair: We are now going to hear from the Ministry of the Attorney General, Ms Spinks and Mr Chalke, I believe. You have our undivided attention.
Mr Jay Chalke: Good afternoon. I am Jay Chalke, the deputy public guardian and trustee. With me is Trudy Spinks, legal counsel in the office of the public guardian and trustee. We would like to take you through the amendments related to part III of Bill 19, those that relate to the amendments to the Substitute Decisions Act. Before that, we thought it would be useful to trace for a few minutes, in a manner somewhat similar to that which Mr Sharpe did, a bit of the history of the laws related to substitute decision-making for incapable adults in situations other than in health care.
Before we do that, though, I thought it might be a little bit useful to just take a minute to describe the difference between the statute you just heard about, the Health Care Consent Act, and the Substitute Decisions Act, because people often get confused. They both relate to a similar and yet somewhat different topic.
The Health Care Consent Act and its predecessor, the Consent to Treatment Act, deal with a particular set of circumstances and a particular regime for substitute decision-making for people who are incapable with respect to making decisions related to their health care. As a specific scheme, where it applies it prevails. However, some people require more extensive decision-making on their behalf, and that more extensive decision-making may relate to a broader range of decisions, that is to say, decisions related to what would happen to their property -- say, their house or their bank accounts -- where they are going to live, their legal rights, their causes of action they may have -- they may be a party to a matrimonial dispute -- who's going to look after that sort of thing.
Also, people may require more extensive substitute decision-making authority because it relates to a longer-term situation. It may not be a sort of one-off treatment decision but may relate to a long-term duration of incapacity. The health care consent regimes are designed and are built around the concept of essentially one-off decision-making as opposed to long-term decision-making. The Substitute Decisions Act is the statute that addresses this more long-term or comprehensive and more broad decision-making authority.
Now I'll just discuss the history for a few minutes. It's important to understand that while the Substitute Decisions Act is in itself a new statute, it is not new to have a substitute decision-making regime for people who we now refer to as incapable adults. I think it would assist the committee to hear a little bit of that so you can put your consideration of this bill into some context.
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Historically, the monarch -- that is, the King or Queen -- had constitutional responsibility for the affairs of people who were incapable through the doctor and what is known as parens patriae. This doctrine arose in order to protect incapable people as well as to ensure in a pragmatic sense that there was someone who could deal with the property of people who were incapable so that in effect it wasn't ownerless and nothing could happen to it and no one was looking after it. So it started with essentially all that responsibility vesting in the monarch.
In the 19th century, there started to be statutory measures put in place in order to allow private individuals to make substitute decisions on behalf of others and there was an example of that in the 19th century known as the Lunacy Act. A more recent incarnation was something called the Mental Incompetency Act, which was passed in Ontario in the early part of this century and remained the law until 1995. The Mental Incompetency Act established a scheme of court appointment for private substitute decision-makers, known under that act as committees. It did so through the creation of a court process in which an individual's competence was determined by a judge.
There are a number of problems and issues related to the Mental Incompetency Act and Ms Spinks will discuss them a little later when she refers to a report known as the Fram report, but just to know there was this one process that was court-based. At the same time that the Mental Incompetency Act existed and provided this court scheme, there was the development, the recognition, that there needed to be a more expedited process for the appointment of a substitute decision-maker for property that belonged to patients of what we now call or what are now referred to as psychiatric hospitals.
This expedited scheme was necessitated for a number of reasons, one of which, for example, was that many such people lacked sufficient assets to justify a court process, to justify the costs that related to that, but still required someone to look after that property, or because they had no individual who was prepared to go through the expense and burden of applying to court and then carrying out the responsibilities of being a court-appointed committee.
In any event, a process was created by which a doctor would certify that an individual was incapable of managing their finances. That was first introduced for inpatients of psychiatric hospitals and then subsequently was extended to outpatients of psychiatric hospitals under the Mental Health Act.
This process provided that in the event that a doctor found an individual was not capable of managing their finances, the office of the public trustee, as it was then known, would be the committee of their estate and that was done directly by statute. But that was the only organization that could become the committee of an estate through that process. So we have those two processes.
At the same time, there was really a third process that grew up. That involved a growing recognition or growing interest among the public to develop a scheme by which individuals could preplan for the possibility that they would become incapable and do so in a way that people have always planned for the certainty that they will die, through the creation of a will. This became known as the creation of a continuing power of attorney.
Historically, the law considered a power of attorney to terminate on somebody becoming incapable. In other words, historically it was not possible to create a power of attorney that survived your own incapacity and, therefore, historically someone could only get substitute decision-making rights for property through this court process or through the expedited process for psychiatric patients that I described. So prior planning for your own future incapacity wasn't possible.
In 1979 an amendment was made to the Powers of Attorney Act to permit a power of attorney to survive subsequent mental incapacity and thereby permit individuals to start to preplan for incapacity. This then created an issue we still struggle with to this day, which is the issue related to what happens when someone falls into more than one of these schemes. They plan for their future incapacity but they're also found, for example, to be incapable and certified under the Mental Health Act process.
From 1979 to 1984 the Powers of Attorney Act provided that while a power of attorney could survive legal incapacity, the power of attorney itself was terminated if the public trustee was made committee of the estate. In other words, during that period of time, the public trustee's trusteeship prevailed over the continuing power of attorney.
In 1984 subsequent amendments were made to the Powers of Attorney Act that were made to essentially change the way this conflict between the two regimes was resolved and provided that if a particular form of words was used, and if the attorney followed a particular practice, then the attorney could oust the jurisdiction of the public trustee that had arisen under the Mental Health Act. So from 1984 to 1995 the power of attorney prevailed over the public trustee's statutory committeeship.
There were these three essentially independent schemes, all of which dealt with substitute decision-making for incapable adults in a rather patchwork or piecemeal effect -- and I should say almost exclusively, not entirely exclusively -- but almost exclusively dealt with property matters. Significant gaps remained in this legislative structure and there were a number of issues that were undealt with.
The government established a number of reviews of the issues related to substitute decision-making for incapable adults as well as related matters, and these studies took place through the 1980s, particularly the latter half of the 1980s. You've heard reference already to the work of the Fram committee and I think Ms Spinks will now just give you a bit of a highlight of what the Fram committee identified as the issues that were required for the purpose of law reform at that time.
Ms Trudy Spinks: I think Mr Chalke has highlighted the main one and the most prominent one, which is that the legislation prior to the Substitute Decisions Act was extremely fragmented and you had a lot statutes covering territory that was very much related and very difficult for people therefore to understand, and a lot of conflicting systems.
Another key issue the Fram report identified is, how do you define mental incapacity for the purpose of making decisions? The old test was primarily modelled on the type of disease that you had. If a person was diagnosed with certain things, then they were more likely to be believed to be incapable, whereas I think the more modern thinking, certainly at the time the Fram report was being done, was that you should be focusing on the issue of what a person is capable of understanding, what kind of information they can process and whether they can appreciate the consequences of decisions; what the cause is, is not really the issue. That was a problem with the definition.
Another issue with respect to mental incapacity was that the law tended to focus on an all-or-nothing proposition that you would either be found capable or incapable, whereas I think it was recognized that people have different levels of decision-making for different types of activities. The kind of decision-making capacity that you need perhaps to make decisions of a routine nature in the course of one's life, perhaps about clothing or hygiene, are not necessarily what you would need if you were making decisions about serious medical issues.
The absence of any mechanism to plan ahead for personal care decision-making was a key missing element in the legislation, particularly in light of the fact that at the time in the States the issue of advance health care directives, which are not the same as, but are similar to, powers of attorney for personal care, had become very prominent. In fact, almost all the US states have them, and I think this brought to the fore that people in Ontario didn't have that opportunity.
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The provision of information about people's rights, which under the Mental Incompetency Act was completely absent and limited under the Mental Health Act: The absence of a non-court process for people who were not in the psychiatric system to obtain guardianship of property was identified as a missing element, as well as the fact that the only body that could be applied in this more expeditious manner was the public guardian and trustee's office, where in fact I think it was widely understood that it was better wherever possible for family to be placed in that position as long as they were suitable to do so.
The absence of any mechanism to investigate abuse or neglect, sometimes self-neglect, of incapable people: Certainly a number of inquests brought that issue to a head. None of the public agencies felt they had the mandate to address the problems and there were some extremely tragic cases that no one felt they were obliged to deal with. I don't think it was from a lack of good intent on anyone's part, but there was a clear lack of designation of responsibility in the law.
I think, as well, an absence of clarity around many of the rules about what guardians were supposed to do and not do, and how they would be held accountable and so forth, tended to engender a lot of legal debate, and it was felt that the legislation wasn't specific enough to provide proper guidance.
Finally, the old legislation tended to be very court-oriented, that everything was a matter of a court hearing. When those issues were examined it was questioned why, if there was no contest to a particular thing, if all the proper people had been notified and so forth and capacity wasn't at issue, people should be forced to go through in-court hearings processes each time. So a need to simplify those processes was identified.
Mr Chalke: Just to pick the story up from there, the Substitute Decisions Act was then the government's response to the report of the Fram committee. It was introduced in 1991 and received hearings through 1991 and 1992 and received third reading in December 1992 and was proclaimed on April 3, 1995.
The purpose of part III of Bill 19 is to introduce changes to the Substitute Decisions Act which preserve the improvements that were made to create this comprehensive scheme of substitute decision-making, while at the same time making the statute more practical and workable. I think that has been the primary issue related to this particular piece of legislation, and to make sure that those people who do undertake responsibilities in this area can do so in a practical way.
I think we're now going to try and turn specifically to Bill 19 and Ms Spinks is going to take you through some of the major changes and we'll try and give you some examples about how that might play out under Bill 19.
Ms Spinks: In the interests of time, I'm clearly not going to go into detail about every single amendment that's in part III, so I'm going to hit what I think are the highlights and perhaps there'll be questions about other aspects at the end.
With respect to how a power of attorney is made, whether it's a power of attorney for a property or for personal care, one of the issues that has been raised is a provision in the current legislation that says witnesses are not to sign the document unless they have no reason to believe that the person is incapable. This has engendered legal debate ad nauseam as to the meaning of that. The intent of the statute was not to require witnesses who may be clerical staff in a law office, or a neighbour and so forth to engage in an inquiry as to the person's capacity. It wasn't meant to require that they warrant the capacity of the grantor, but there's been some question about that, so the section is repealed and in that way it is much more like the ways wills are signed.
In addition, the current legislation added a restriction that was not there prior to the SDA, which said that the children of the grantor -- the grantor is the person who signs the power of attorney -- are excluded from acting as witnesses. This wasn't the case prior to SDA. There has been in practice a feeling that in terms of the workability of that, people often don't want to take that issue outside their family. There isn't automatic conflict of interest in children, because they are not automatic heirs; only in the case of an intestacy would they fall into that category. The bar on the grantor's spouse acting as a witness has been retained because, just by virtue of the fact that they're married, they have certain legal claims on money and have an interest. The prohibition on the grantor's children has been deleted.
The clause which says that a power of attorney is terminated when the public guardian and trustee is appointed, which has been the source of some concern from the public, has been deleted. That will permit a power of attorney to endure regardless of the fact that a finding of incapacity might be made that would otherwise lead to guardianship occurring. That will essentially mean that powers of attorney will continue operating where they wouldn't, technically, today. You'll find that provision in section 8 of Bill 19.
Section 10 addresses a process called statutory guardianship. The minister spoke about that. That is essentially the non-court process for getting a guardian of property in place. There are several key changes in this particular section, the first of which is that there are provisions in here that will prevent the process being started. The process leads, hopefully, to the appointment of a family member as a replacement, but does lead to the public guardian and trustee in order that that process can take place. People have been concerned about the process even being commenced when power of attorney has already been made. I think it clearly was always the intent of the statute that that's the way it would operate, and the provisions here clarify that so that it puts up a Stop sign in that case.
The role of the advocate has been removed. The role of the advocate here, of course, was to provide information about people's rights in relation to the statutory guardianship, and since the Advocacy Act is being repealed there obviously has to be a replacement for that function. The legislation puts the mandatory obligation on the public guardian and trustee's office to provide that information. The information given would be about the individual's rights, having been assessed as incapable. The new section will say they have a right to appeal the finding of incapacity to the Consent and Capacity Review Board. This is very similar to the way the Mental Health Act functioned prior to SDA and continues to for inpatients of psychiatric facilities.
A key amendment you'll find in section 10 of page 5 of your bill. It incorporates a new clause, section 16.1. It says that should it occur that the public guardian and trustee is appointed, or perhaps a replacement after the appointment of the office, and it turns out that there is a pre-existing power of attorney -- in other words, someone slipped through the crack, probably in a quite well-meaning way or for reasons that are understandable; for example, the attorney isn't known at the time or the documents haven't been found or a certificate is issued under the Mental Health Act, which has a mandatory process -- the new clause will provide that the authority of the statutory guardian will be terminated in favour of the authority of the person holding the power of attorney. That again is much more consistent with the way the previous legislation operated.
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Termination of statutory guardianship is at present a unilateral right of the incapable person. Essentially, that means that person can say, "I don't want the guardianship any more," and it's over as of that moment, subject to, in the present legislation, having an advocate confirm that. That section has been changed, and the guardianship will be terminated upon a finding of capacity. If an assessor or, in the case of someone who's been certified in the psychiatric system, a physician working for a psychiatric facility gives an opinion saying the individual is capable, that will be sufficient to end the guardianship. There will be a right of appeal provided in those cases where people don't like the results of the assessment they obtained for that purpose and want to have the Consent and Capacity Review Board look at the issue.
Section 11 deals with the procedure for replacing the public guardian and trustee. Formerly, that was open to a limited category of people, basically immediate family. Under the proposed amendments, that will be open to any relative and a number of other people; namely, a person holding a power of attorney who has a limited power of attorney that only covers part of the property, or a trust company where a spouse or partner has given written consent. So it's a much broader right of access to that particular process. Some of the paperwork that was previously required would no longer be necessary, and the issue of security has been addressed here. At present it's mandatory for every estate over $50,000 and would now under this scheme be an issue of discretion, so the circumstances of the individual case could be assessed on a case-by-case basis rather than having an arbitrary rule applying to everyone.
Section 16, you'll note, addresses some changes to the investigation function of the public guardian and trustee. At the moment, the legislation is fairly broad-reaching in terms of the legal obligation it places on the public guardian and trustee's office; it basically says to investigate every allegation of harm to an incapable person. There isn't within the legislation as it's drafted today any scope to take two steps towards that issue: to discover that there is a better alternative than guardianship or continuing involvement of the public guardian and trustee, whether it be family, for example, who are able to deal with the issue, or referral to another kind of social agency that can handle the matter. There really isn't the scope within the legislation as it's drafted to do that; it implies that the office needs to go through the full process of an investigation, so there has been some language introduced there to clarify that issue.
The matter of the records acquired during those investigations has also been addressed. As a very practical matter, our office has found that the kinds of matters we become involved with often relate to people who are marginal or borderline capacity and who, although they may not be sufficiently at risk today to warrant guardianship, that picture often changes in three months or four months. It's extremely difficult. At the moment the legislation requires the office to destroy any records acquired during the investigation, which means opening the issue up all over again, going back to all the same care providers, perhaps going back and intruding on the individual again. It's not only inefficient, but it can be an offensive process. The amendment would allow the office to keep records for a maximum of three years, assuming no further activity has taken place within that time.
The amendments will remove a requirement that guardians of property prepare an annual financial report. Essentially, the legislation as it's written today requires two steps: one to keep accounts and records, and the other to prepare this annual report, a report which isn't, in the law as it's written, required to go anywhere. It's a duplication of effort and it does unnecessarily complicate matters, so the proposal is to simply require the keeping of accounts. You'll note that the regulations will spell out how those accounts are to be kept and what should be in them and so forth.
The reason that issue has been left in regulation-making authority is because it's a highly procedural issue and it can change what needs to be recorded. Once you have two or three years' experience with guardianship under this new scheme, there might be other actually relevant things that the court is asking about that were not asked for in the records here. The regulation-making authority allows the flexibility to change that.
Moving into the area of personal care decision-making, I will just note that the changes to powers of attorney for personal care -- the requirements for making them, how they're made, the witnessing requirements and the exclusions for certain classes of witnesses -- are the same as for powers of attorney for personal care. Rather than repeat that, I'll just note that's the case.
One of the key amendments concerns how you use a power of attorney for personal care, which unlike a power of attorney for property can never be used unless the person is actually incapable. Under the current scheme there is a process, and I think the minister described it in his remarks, involving assessors and advocates in the process of validation, getting approval from our office.
That process would under these amendments be eliminated. Instead, a finding of incapacity made under the Health Care Consent Act by a health care practitioner would be sufficient to trigger the authority to make decisions under that legislation, or if the matter falls outside the Health Care Consent Act, it's really up to the attorney, that is, the substitute decision-maker chosen by the individual when they're capable; it's a matter of their opinion of whether they have grounds to believe the person is now incapable of making decisions.
All that of course is subject to the right of the person who makes the power of attorney when they're capable to write in a different kind of requirement, and if that's what a person chooses to do, they are free to do so. They could, for example, say: "That's not good enough for me. I would like to have a letter from my family doctor before this can be used." Other people might say: "I've total, implicit trust, and I don't want to put any roadblocks in the way of anything. I'm making this decision to give you this authority and not to add any complications." It's a mater of choice and it's a matter of people being able to tailor it the way they see is best for them in their particular situation.
There is a special kind of power of attorney that the Substitute Decisions Act addresses. Certainly it was there in the original bill, and it's quite interesting that we're the only jurisdiction that has such a document. Essentially, what this special power of attorney does is allow people to write in fairly serious waivers of rights they would normally have, such as the right to appeal certain things, the right not to be forcibly admitted without a court order. Some people have the kind of illness that fluctuates and they want to be able, when they're capable, to make the decision that they'd like to give this sort of authority to another person because they foresee that they will lack insight at the time of incapacity.
That vehicle is being retained in the proposed amendments, but the process of using it is being simplified significantly. Essentially, what's being removed is the requirement of registration with the public guardian and trustee, the requirement for subsequent validation -- that's opinions from assessors -- and in its place, what is here is a requirement that the key issue is that the mental capacity of the person who signs this document at the time they assign these rights needs to be addressed, so there will continue to be a requirement of an assessment of capacity that accompanies that document, as well as the person who signs it having acknowledged that they understand what it is they're doing.
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The particular waivers that are listed here in that section have been put together as a package. Basically, the approach is that most people who want to waive certain rights would likely want to waive others, but most importantly these are documents which a third party, for example a psychiatrist, must look at to decide whether or not they have the authority to do what the attorney, the substitute, is telling them they can do. It's extremely difficult if everybody is writing these things in a different way. It allows the practitioner or the third party to actually know that this is what this document means if it's written in a prescribed way. That is the reason for that particular requirement.
There are similar changes around the investigation function in the area of personal care. They are sufficiently the same as those in the area of property that I won't go into them, with one exception: There is a difference in the SDA as it reads today between temporary guardianship applications -- that's where the public guardian and trustee goes to court to seek short-term authority in an extreme case -- and today the Substitute Decisions Act says if it's a personal care matter, that order can only last for seven days and then you must go back to the judge and you must get an extension or termination.
What's happened in practice is that that isn't a long enough period of time, and the courts and the office and the caregivers are finding it frustrating. It doesn't allow enough time to actually address the problem that's been identified. So it will still be limited to up to 90 days but it will be within the discretion of the judge, who we think has sufficient discretion and judgement to decide what is best in the particular circumstances, whether it needs to be two days or seven days or 40 days.
There is in the current legislation a requirement that the PGT keep a register of certain types of substitute decision-making appointments. The purpose of that is so that third parties like doctors or banks could find out if someone has a legal decision-maker appointed and get hold of him or her. So it requires certain contact information and so forth. You'll note that in the amendments that section has been deleted, and instead, there is regulation-making authority. The reason for that is that a number of health professionals and people and members of the legal profession have said, "You know, there's a lot of potential uses for the register in terms of people voluntarily being able to record information that they want to have accessible."
Obviously, there are a number of issues that would need to be addressed before that could be done, but the current legislation does not allow the flexibility. So with regulation-making authority, there would be flexibility to consider that option, assuming that all of the necessary consultations and discussions of all the implications and the stakeholders and so forth were reviewed and the appropriate model could be designed. That's why the move into the regulations.
The mediation function of the public guardian and trustee -- I think it was mentioned earlier in the presentation that the Ministry of Health did. At the present time, it says if there is a substitute who makes property decisions and a substitute who makes personal care decisions -- I think Ms Boyd raised this issue -- then the public guardian and trustee "shall mediate." Mediation is something that I think by definition requires two willing parties, so it's suggested that the "shall" is not an appropriate term here and that also there might be other situations, for example joint attorneys, two people who are acting for the same type of decision-making, who need some access to resolve their disputes. So that section has been amended accordingly.
Just on that point I would like to note that disputes in these particular areas, the office, in working on a day-to-day basis with people in this who have substitute decision-making authority, found that that issue doesn't arise very often in practice because usually it's the same person who makes personal care decisions and property decisions -- usually. Sometimes it's different people, and usually they get along and resolve their differences. There is the odd case where that doesn't happen. Those cases ultimately, if they can't be resolved, end up in court. That's traditionally the remedy.
Finally, I just want to address some of the regulation-making authority issues. The new regulation-making authority that's been added to prescribe standards for capacity assessments, to regulate fees -- I just want to caution that no decisions have been made on these issues. It's intended that no decisions would be made until full consultation and analysis of all of the implications were carried out.
As was discussed earlier, there is regulation-making authority to authorize "a member of a college as defined in the Regulated Health Professions Act...or a person who provides health care or residential, social, training or support services...to disclose personal information" in specified circumstances. Those circumstances are for the purpose of assisting an assessor who is obliged to perform an assessment based on the fullest information possible in order that a person not be found incapable when they are capable. That's the purpose underlying that to a person who is making a guardianship application.
In practice, over the past decades people -- usually family members -- have been going to court and asking the court to appoint a guardian. The most typical situation, for example, is a daughter with an elderly mother, where the elderly mother is often under care, has been for some time, and there is ready access to a family physician who wants to enable the protection of this person. Often family involvement for guardianship is precipitated by a need to protect the individual from harm or neglect, self-neglect or abuse, so there is a protective element there. In the vast majority of cases, doctors who have been treating the incapable person are quite willing to provide a report to submit to the court with the application, but they're quite concerned about their confidentiality rules and whether they are authorized to do that. That is the rationale behind this. It certainly wouldn't compel a practitioner. It's not compulsory; it's an authorization, and it's a regulation-making authority only, which will of course be discussed with the Information and Privacy Commissioner.
The final class of people to whom that disclosure might apply would be to the public guardian and trustee in the course of conducting an investigation of harm. We have run into several situations where people in the community who may be governed by a municipal freedom of information act -- community agency workers or health care professionals -- want to identify a case of abuse of an incapable person and they feel they are not able to report that because of a barrier in terms of their confidentiality rules.
That essentially is the rationale, noting again that there is regulation-making authority, of course, to govern the use and disclosure of any personal information. So the regulations could be quite fulsome in terms of the restrictions they placed on how that information was used, bearing in mind that there is a whole class of people, as well as those I mentioned out there, who are not covered by any confidentiality rules who could be brought in under this umbrella where they aren't today. I'm going to end on that note.
The Chair: Thank you, Ms Spinks. We have approximately six minutes for each caucus. Tomorrow we'll start a rotation but today you have the pleasure, Mrs Caplan, to proceed.
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Mrs Caplan: I'll go in reverse order, if that's okay, Trudy. I thought I'd start out by saying that substantially I agree with most of the substitute decision legislation, its goals as well as the way it's been implemented. I recognize that much of what is here responds to what's been learned, as to how the legislation has been implemented, and much of it would be considered technical.
There are a couple of glaring, I think, errors. I have real concern over the last provisions under clauses 90(3)(e.4) and (e.5) in particular because I don't think it's specific as to who the information can be disclosed to. It doesn't say public guardian and trustee; it doesn't say to a court. The way I read it, it authorizes "a member of a college as defined in the Regulated Health Professions Act...or a person who provides health care or residential, social, training" social support, "subject to the Mental Health Act and the Long-Term Care Act...but despite any other act or the regulation under any other act, to disclose personal information about a person."
You've said that's regulation-making ability. I think it's much too broad. I think it does threaten individual confidentiality, and while its intention may be good, I hope that you will reconsider and the government will reconsider what might be possible under those provisions.
The other point I would make is: For example, it says under subclause (ii), "to a person who has made or has stated in writing an intention to make an application to appoint a guardian of property or a guardian of the person, if the information is relevant to the application." That means anybody, with or without the consent of the individual, who applies to become a guardian, either for personal care or for property, can have all health information, including sensitive mental health information, disclosed to him or her.
I think that's much too broad. There's tremendous potential for abuse in a situation where family members with an adverse interest, if they're aware of this provision, particularly in the kinds of cases where people are in and out of capacity and incapacity, may -- that's very dangerous and I have real concerns about it.
I know there's not time today to answer all those questions, so I'm just going to pose them in that way. I think the reg-making ability is much too broad governing the use and disclosure "of personal information obtained under the authority of a regulation." I'm not sure what that means or what the intent is, but I want to make sure that individual privacy is maintained and is paramount. There may be cases where disclosure may be in the individual's interests, but that case has to be made before the authority is granted. I'm not sure that having that broad reg-making ability is in anybody's best interests.
The other question, and perhaps you would have time: You've removed the prohibition against children as being witnesses on powers of attorney and there's no guarantee -- they may not even know. I think it might invalidate a power of attorney if it was discovered down the road that they had a financial interest. I wonder if you've considered that issue about allowing for children to pressure their parents into the signing of a power of attorney. I thought it was a protection for people when they could say to their kids, "Well, the law says you can't," you know; parents wouldn't want to say to their children, "No, I don't want you witnessing this." I'm wondering if you've thought about the pressure that could be brought to bear on vulnerable and aging parents who are given a power of attorney to sign by their children, who say, "Sign here and we'll witness this." Have you thought about that?
Ms Spinks: I take your point, that people shouldn't be acting as witnesses who might be in a conflict, who might pressure the person, but I don't know that you can identify children as a group automatically coming within that particular category. That could apply to an aunt or an uncle or a neighbour or a boyfriend or girlfriend and the same sorts of restrictions don't apply. So I'm not sure whether that generalization does.
Mrs Caplan: I guess the point is this: Where you have a friend or a neighbour or anyone -- you do have the prohibition in here -- they're less likely in a position to be able to influence. Am I correct in assuming there is a prohibition against anyone who would have a conflict of interest against signing a witness form, or not?
Ms Spinks: It's certainly not in the legislation.
Mrs Caplan: So there's no prohibition. Why would you not want a prohibition in the legislation for anyone who would have a conflict of interest?
Ms Spinks: I take your submission, your point, but I don't think that you could necessarily cover every single situation in a list that might encompass all of those potential human situations that might arise.
Mrs Caplan: It just seemed to me that you were protecting both parents and children from that kind of potential, because certainly the children have the most interest, and likely along with the spouse, in the order of hierarchy, and since you've said no to spouses, you're saying a spouse can't sign, I'm wondering why you're saying it's therefore okay for children to sign.
Ms Spinks: A spouse has a legal interest in the property just by virtue of their matrimonial relationship, and therefore it raises a legal issue, whereas children don't necessarily have an automatic legal interest in their parents' property. I think that perhaps people who practise in the area have not found that in the past this has led to -- some may say yes, some may say no, but a lot say no, that it hasn't led to cases any more so than the neighbour or the aunt or the uncle.
The Chair: Thank you, Mrs Caplan.
Mrs Caplan: I'd like to have --
The Chair: No, no. We have to go to Mrs Boyd.
Mrs Boyd: Still on the conflict-of-interest issue, do I take it you've taken out the prohibition against a paid caregiver being the substitute decision-maker for personal care?
Ms Spinks: What the legislation says is that the courts, having considered the circumstances of the application, could appoint a paid service provider if there was no one else who was suitable or willing in the circumstances, but it's only in the context of a court application where you have a judge looking at the material.
Mrs Boyd: Okay.
Mr Chalke: Just with respect to the last point about the witness is that the attorney can't witness the document. So the notion that someone who, say, has a potential conflict, the attorney can't be a witness. The power would have to be in favour of other people.
Mrs Caplan: Two children; one's the attorney and the other --
Mrs Boyd: Yes, that's the problem. Collusion is not unknown in these circumstances. It's a bit of a problem because we're talking about vulnerable people. We're not talking about people who are fully able to stand up for themselves in these circumstances. For the most part, we're talking about people who are very susceptible to coercion.
I guess it's just a worry. The provision was put in there in the first place because there were many representations made by many people that this was a real problem, and it's amazing that it appears to have changed, virtually overnight, that this is no longer a concern. I'm quite amazed.
The other issue I think is the whole issue of the checks and balances. It's really important to have some checks and balances in this kind of a situation, and I think removing the requirement to register or be just acknowledged to be the attorney by the public guardian and trustee is one of those. It seems to me that that's a bit of a problem, that when you add that to the problem that if there is a statutory guardian now the person themselves, the vulnerable person, can no longer refuse or terminate that. Is that not correct?
Ms Spinks: That's right.
Mrs Boyd: And that the powers of attorney for personal care can in fact now be exercised without the person ever having been informed. There's no information that they are in fact considered incapable.
Ms Spinks: I'd just like to clarify one issue on the termination. I said that is correct. In fact, the person can terminate the guardianship upon the production of evidence of capacity.
Mrs Boyd: And somebody informs them about how to do this, of course. Without any advocates, that doesn't happen, does it? That's the problem. These things may all be there, but once you take the advocates and the rights advisers out, what does it really mean to these vulnerable people? Do we expect the entire population of Ontario to be so well versed in this act that they're automatically going to know what their rights are at some point.
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Mr Chalke: Under subsection 16(6) of the act -- you're referring to statutory guardianship -- our office would be obligated to advise them that we had become the statutory guardian, and what the mechanism was for them --
Mrs Boyd: So the requirement is there for you.
Mr Chalke: Absolutely, for us to tell them. You're referring to statutory guardianship, so we will have an obligation.
Mrs Boyd: Okay. So unlike the other situations around consent to treatment, for you, in a statutory guardianship, that's written in.
Mr Chalke: Yes, it is.
Mrs Boyd: That's good to hear.
Mr Tilson: I had a quick question with respect to the forms that the former government sent out for powers of attorney. It appears that there are potential changes dealing specifically with personal care. In other words, a person who wants to specify in the power of attorney a method for determining whether he or she is incapable could, for example, state that that position could be confirmed by the person's own physician. I don't know whether this should be to the Health section or to your section, but are forms being prepared, or amendments, suggested clauses, that might assist members of the public so that somebody won't get deep-sixed, or whatever the expression is, when they want a particular position to take place? That's one example.
Mr Chalke: It is true that we have existing kits that we have distributed for the past almost two years now, and we are in the process of amending the kits. The kits will have to be changed to reflect the changes that are enacted by Bill 19. Kits that were completed prior to the proclamation of Bill 19 will survive and be legally effective following the proclamation of Bill 19.
Mr Tilson: I have one more question, dealing with a couple of the questions that were asked by my Liberal and NDP friends, and that was the possible conflict-of-interest issue of children, which I think Mrs Caplan mentioned. Surely there's some law that exists -- in fact I'm almost positive there's some law -- of an obligation of the attorney to act in an appropriate way that would perhaps relieve some of the concerns.
I suspect that Mrs Caplan is thinking of witnesses of wills, that you can't be a witness of a will if you're going to be a beneficiary. I assume that's the line of thinking that she's dealing with, and of course an attorney cannot witness a power of attorney, I don't think. But surely there's an obligation on the attorney to satisfy himself or herself that there's no collusion or other indiscretion.
Mr Chalke: An attorney is a fiduciary in law, which is about the highest duty that the law imposes on anybody, and can be called upon to justify their administration of the affairs of the incapable person, for example in a court or when, say, either the incapable person recovers or the attorney's care of the individual's affairs is terminated, perhaps either by recovery or even by when they die. The subsequent personal representative can call on them to account for what they did, down to the nickel.
Mr Klees: I'd like to just follow up on this same question with regard to conflict of interest for children. I'd be interested in the thinking behind removing children from the conflict role as the spouse is, particularly given the fact that children may well have a legal interest if the individual should die intestate. If there is a possibility that there is a conflict, why would we not take the safe route and leave them out? Surely people can find others to witness. What was the rationale, what was the thinking behind leaving them in, so that we have a better understanding of this issue?
Ms Spinks: Essentially, I think you're assuming that there is a conflict when there could be -- you don't know, for example, what the terms of any person's will might be. There are all kinds of other sorts of conflicts potentially, other than being named in a will as a beneficiary, bearing in mind that the role of the attorney is to manage the assets of the individual during their lifetime and has nothing to do with the will. So that job ends at the date of death.
Clearly, there is a ban still on the attorney acting as a witness. Children could be heirs; they may not be heirs. A neighbour might be an heir. A completely unrelated friend might be an heir. They are not prohibited from acting as a witness. It's also a matter of privacy, that many people have complained about having to -- in their reactions to issues around powers of attorney, that this is the kind of thing that they sometimes want to do within the framework of their own family rather than having to go out and have strangers, more or less.
Mr Chalke: I understand there are a number of private practitioners who are slated to come before this committee and it may be an issue that's worth exploring with them. It's an issue that many have said to us seems to cause a lot of burden and hassle to individuals, and given that it doesn't really deal with the range of conflicts that are out there and potentially out there -- it merely picks one and assumes that that is and others aren't -- that may be an issue that you want to consider.
The Chair: Thank you, Mr Chalke and Ms Spinks. I have asked that the subcommittee meet directly after this meeting. I thank you very much for your time today.
We are adjourning until tomorrow at 9 and we will be going until 5 o'clock, the last witness being the privacy commissioner. Thank you very much.
The committee adjourned at 1727.