Monday 16 September 1991

Regulated Health Professions Act, 1991, and companion legislation / Loi de 1991 sur les professions de la santé réglementées et les projets de loi qui l'accompagnent

Alan Schwartz

Ontario native affairs secretariat



Chair: Caplan, Elinor (Oriole L)

Vice-Chair: Cordiano, Joseph (Lawrence L)

Beer, Charles (York North L)

Haeck, Christel (St. Catharines-Brock NDP)

Hope, Randy R. (Chatham-Kent NDP)

Malkowski, Gary (York East NDP)

Martin, Tony (Sault Ste Marie NDP)

McLeod, Lyn (Fort William L)

Owens, Stephen (Scarborough Centre NDP)

Silipo, Tony (Dovercourt NDP)

Wilson, Jim (Simcoe West PC)

Witmer, Elizabeth (Waterloo North PC)


Abel, Donald (Wentworth North NDP) for Mr Silipo

Waters, Daniel (Muskoka-Georgian Bay NDP) for Mr Owens

Also taking part: Jackson, Cameron (Burlington South PC)

Clerk: Mellor, Lynn

Staff: Drummond, Alison, Research Officer, Legislative Research Service

The committee met at 1002 in room 228.


Resuming consideration of Bill 43, the Regulated Health Professions Act, 1991, and its companion legislation, Bills 44-64.

Reprise de l'étude du projet de loi 43, Loi sur les professions de la santé réglementées et les projets de loi, 44 à 64, qui l'accompagnent.


The Chair: Welcome to the standing committee on social development. I would particularly like to welcome this morning Mr Alan Schwartz. As we all know, it was 1982 when Mr Schwartz was appointed the co-ordinator of the Health Professions Legislation Review. I think we are all pleased to have him here this morning.

We have arranged for a larger room, so perhaps part of the reason not everyone is here on time is that they are finding their way up from the downstairs room. We wanted to be able to accommodate as many people as possible for the presentation this morning. Mr Schwartz is able to be with us just until noon. As we are all assembled now and all caucuses are represented, we will ask Mr Schwartz to begin with his presentation.

Mr Schwartz: Thank you very much for having me here this morning. With your permission, what I would like to do this morning is spend a few minutes doing a very broad overview of some of the responsibilities I had and some of the ways in which I approached those, and then to the extent that memory allows me, I will try to deal with your questions on many of the specific issues that I know you have been grappling with during your sessions.

As the Chair has said, this review began many years ago. Actually, as a review dealing with the issues, we began in the summer of 1983. My time dealing with the issues was almost six years. I begin by saying that this comments of itself on the complexity of the issues that are before you and is also a comment on the type of consultation that was undertaken, and in my view, required.

If I could take you back to 1983 for a moment, I want to set the stage for you, which I think is important as a perspective as you consider the issues before you. There was at that time enormous dissatisfaction with the system and a lot of clamour for change. The clamour for change came from almost every regulated and unregulated health care provider. There was clamour from consumer groups. There was clamour from hospital administrators. I dare say even the government of the day recognized that the current legislation was almost incapable of amendment and was looking for change as well.

Virtually everybody other than, if my memory is correct, perhaps dentistry, pharmacy and medicine at that time was looking for major change of some sort. At the same time, I want to say that there was at the beginning very little co-operation or dialogue between the groups. There were deep suspicions and mistrust and almost no communication between groups. I will give you a small example.

At the very beginning of the health professions review, in one of the first documents we produced and sent out to people, we referred to almost all providers of health care as "health professionals." There was an argument over that. There was truly, in 1984, a serious debate as to whether the words "health professional" could apply to many of the participants, some of whom, under this proposal, hopefully will be regulated professions in the near future.

I tell you that because I think it is an important thing to keep in mind how basic the mistrust, the lack of communication and the suspicion between groups was. If you go back and think about that, 1984 is not so long ago. We could spend serious time debating whether it was appropriate to call some of these groups health professionals.

The review itself required a number of principles that should be paramount throughout its work, and we had those. I would like to begin this morning by telling you briefly what they were.

The main principle of the review was that the new regulatory framework would effectively advance and protect the public interest. That was the number one goal at the beginning, it was the number one goal in the middle, and it was the number one goal at the end. It had a number of different aspects to it. The public has to be protected from unqualified, incompetent and unfit health care providers to the extent possible, recognizing that it is not possible in all circumstances to protect everybody; mechanisms have to be in place to ensure, to the extent possible, the provision of high-quality care; the public should have freedom of choice within a range of safe options, and finally, there should be scope for evolution in the roles played by individual professions -- and I am going to come back to that later -- and flexibility in how individual professions can be utilized so that the system can operate with maximum efficiency.

Those were the cornerstones of the review from the beginning. Those cornerstones I want to contrast with a number of other things. Regulation is not to enhance professional status; regulation is not to provide the Good Housekeeping Seal of Approval on any particular profession; regulation is not to determine a pecking order between professions; regulation is not to enhance the earning power of particular professions, and regulation is not to grant monopolies. That is not the point of regulation.

It is easy to forget all that among the turf wars, the ego battles and the grabs for power that were and are going on, and will go on. That is what it is all about.

I want to spend a moment or two just talking about methodology. The process used by the review was, in my view, highly consultative. It was as consultative as it could be without absolutely grinding to a halt. Was it perfect? No, it was not, but we worked hard at hearing everybody and exchanging views to the extent views could be exchanged. I believe the vast majority of participants in the review accept that. We encouraged and sought participation throughout. I, personally, and members of my staff held hundreds and hundreds of meetings over and over again on an almost daily basis with all the players.

Again, I want to take you back to the beginning because I think there is some importance in this background. There were over 200 active participants. We had guessed when this was set up that there would be 40. Seventy-five groups originally asked to be regulated. Seventy-five individual groups identified themselves as professions which ought to be regulated.

The 200 participants held widely divergent and conflicting views. There was very little understanding of the purpose of self-regulation. There was enormous pressure to grant the kinds of things that regulation is not about, and the pressures to grant powers were largely contradictory and in my view often not in the public interest.

Partway through the review, right at the end of his tenure, my colleague Jim Fisher and I and the review team had worked out a matrix of issues that we had to deal with. The matrix contained almost 500 separate issues. Each one of those 500, if you had spoken to members of the profession at the moment, was the most important thing in the world. Each one of them had to be solved, and these 500 issues often contradicted each other in the most direct ways possible.

Without patting myself on the back, but actually patting the participants on the back, I want to say that I believe it is a tremendous achievement to have gotten to where we are today, that we have achieved remarkable consensus, which in my view is also mostly as a result of the movement by health care providers in Ontario.

There was never any doubt in my mind that each issue was going to be solved, but I never believed then, nor do I believe today, that it was possible or necessary to solve every issue to everyone's satisfaction. To try to do so, in my view, is a mistake because you cannot be all things to all people in something as complex as this. Furthermore, what satisfies one often has exactly the opposite impact on another. The goal throughout in dealing with all of these issues was to have a system in place that would better serve the public.


The question is, how did we get to where we are today? The answer is the obvious: hard work, patience, fairness, but most important, sticking to principle and remembering the principles we began with. Ultimately, in my view, the vast majority of participants recognized that the resolution of differences was essential and that the public-interest aspect of the process was neither for sale, for barter nor for loan. That is an important thing as well.

Most learned a great deal as the process went on, and I think again it is a compliment to the review participants how views evolved over the process and how far they came. Many groups modified their views, made their views more sophisticated and learned to better understand the purpose of regulation. It is a credit to most of them that this ended up with a successful set of recommendations.

Not every detail of the recommendations is perfect, but having said that, I believe there was a minimum compromise from principle. It never will be perfect, and to seek it to be perfect is an error, because you will lock yourself into a mental framework which will not allow you to do anything.

Having said that, it is not to suggest that a minority of participants did not dig in their heels and fight for their narrow interest right to the end, because some did, or that, since the end of the review's tenure or my tenure, some have not attempted a final grab, because some have. Is that inappropriate? Probably not.

Ultimately I think you all understand that the responsibility of the professional association is to fight for the association and to fight for what is appropriate for the association. I actually look at that and accept it as part of our process, but that was not my responsibility. My responsibility, and I believe your responsibility, was to look at it as part of the whole. Very often what groups and individuals said to you in isolation is sensible, but it is not sensible as part of a whole. It does not help the balance. It dislodges carefully thought out balances that are crucial for us to make this work.

Now I am going to just spend a few minutes talking about the legal and procedural provisions and a few minutes talking about the scope of practice, and then I will stop and answer your questions as best I can.

As you know, the legal and procedural provisions ended up with a uniform act for all. Today when you look at it, to tell you how far we have come, I think most people believe that is the ultimate in reason. It was a concept that was fought. Many of the things you take for granted today were fought, some of them more bitterly than others, but the idea of a uniform code was fought because it did away with the concept of a pecking order and people did not like that. Some people who thought the pecking order ought to be done away with actually believed that it should only be done away with to the extent that they should be brought to the top of it, and others should be left at the bottom of it.

Even something as simple as this uniform code, where the public would have the same rights and remedies in relation to all professions, where you could facilitate amendments and where you did not confer differing status on professions, something as simple as that was a matter of controversy.

All I really want to say in my opening remarks about the legal and procedural provisions is that in my view in the broad sense, and we could talk about the detail if you wish, they increase the accountability of the professions to the Legislature and to the public in a major way. Public protection is enhanced by them in a major way over what is currently the law in this province, and the formulation of public policy can be advanced in a major way by the creation of the health professionals regulation advisory committee, or whatever it is you now call it.

The other thing I want to say about the legal and procedural part is that no system works unless it is perceived to be fair. You must protect the individual rights of the professional as well as the public, and it is this balance which is often so difficult to come to.

Individual cases or examples make it very easy to lose sight of the principle, but if you lose sight of the principle, the threat to the system is real and constant. I urge you, when you deal with this matter, to remember the importance of balancing the right of the professional against that of the public. The rule of law requires this delicate balance between the powers you are going to give to governing bodies on the one hand, and the rights of its members, and you should not fall prey to an issue of the moment to wipe out legitimate rights of the professional.

This is an analogy from left field, but you do not need a lot of Donald Marshalls to remind you of the dangers of smug and self-righteous rushes to convictions. I just urge you to keep that in mind. Our system has always protected the individual, and I urge you to remember to do that and not to get caught away in one particular instance.

Now I am going to turn a little bit to scope of practice. The scope of practice area is always the most controversial. It is not a surprise. Currently, in my view, the system grants unnecessarily wide and ill-defined monopolies. Monopolies are not in the public interest in this area unless absolutely required. Monopolies are to the advantage of the profession that holds them. It gives them economic clout and it gives them status clout, but it is often difficult to justify those monopolies in the public interest.


Obviously some regulation of scope is needed since we all know that some activities pose a serious risk of harm if performed by unqualified persons. Nobody argues with that general principle, and therefore controlled acts are needed, but my view is that controlled acts should not be lightly granted. They should be granted when the evidence is overwhelming that they are required, when the evidence is strong that it is in the public interest to have them, because it is equally true that some health care services are not intrinsically dangerous. Everything is dangerous. Walking across Bay and Queen where I work is dangerous. There is danger in everything, but common sense and balance is what you are being asked to apply here.

The public should have broad freedom to choose their care giver of choice in these circumstances. Hospital administrators should have the ability to use the facilities and the providers at their disposal in ways that are most efficient for the system without undue monopolies getting in their way.

I want to spend a moment or two on the current model to put this again in some perspective. Four of the five professions currently regulated by the Health Disciplines Act are licensed under the current system, for whatever that means. In theory, and I underline the word "theory," they have exclusive licence or monopoly over the entire provision of service within their scope. Only nurses do not have that. For example, only a physician who is duly licensed by the College of Physicians and Surgeons of Ontario can lawfully practise medicine in Ontario. Now what the hell does that mean? Medicine is not defined. The court cases are very few and far between, and in fact the one people always drag out I think happened in 1905. What did it say? It said the practice of medicine is what doctors do. It is everything. So when the CPSO takes somebody to court, it must show that the activity falls within the scope of the practice of medicine.

We know that lots of things doctors do are not exclusively licensed to doctors. The reality of the system and the theory of the system are very different. The reality of the system is that the theory is not applied in the strict sense because otherwise many activities would be halted, would be stopped, but common sense does not allow that.

All other currently regulated professions, in my view, have no clear licensure. They may tell you they do. They may show you the words in acts like the Drugless Practitioners Act to say they do, but it is very unclear that they have it. It is a miracle the system continues. They go forward and do what they do every day and are not harassed every five minutes, and if they are harassed, it actually works its way out and then they are not harassed again.

I want to remind you that controlled acts are sought very often for status and for economic benefit. That is not the responsibility of a regulatory system. The responsibility of the regulatory system is first and foremost to protect the public, to ensure the public that you are doing the best you can to ensure they get qualified help from people who can help them, and that they can distinguish as much as they can between the kind of health care providers they are choosing. As I often said during the review, after that they will vote with their feet. They will go to whom they want to go to. That is the most you can do.

Is this system perfection? Far from it. Is it an improvement over the current system? In my view it is a significant improvement, and if you pass it, this will be the most progressive regulatory system in the world. Will it allow for the evolution of health care? Absolutely, in a way that perhaps no other system can. Can you ask it to do more than that? Probably not. Can it do everything for everybody? Absolutely not.

Thank you very much, and let's hear what you have to ask me.

The Chair: After so many years of work, we appreciate your 20-minute presentation and know that it really is just the beginning of the discussion that we are going to have this morning.

Mr Beer: I think everybody on this committee is very much aware of what you must have gone through during all those years. I know I am speaking on behalf of everybody in saying that we are full of admiration that anyone could have taken that time and come up with something that even with the number of issues that have been brought before us, I think still has incredible support from the wide range of professions as being something that is positive and that we want to move forward on in terms of the public policy of the health care system.

I wonder if I could take you back to your thinking around what has been called the harm clause, which is not, as you know, in the bill before us. What is your sense of the importance of that clause? How do you relate it to the controlled act of diagnosis? Do you think it is preferable to have either that clause or one like it? What are the things we should be measuring in the balance as we look at that particular issue?

Mr Schwartz: The harm clause, in my view, was intended to be an important safety net. It is an important safety net because I think we have done an exceptional job in looking at what should be controlled acts. We have identified, as best anybody under the process could, what the appropriate controlled acts are.

One thing I am certain of is that the list is not perfect, although I think it is pretty good. Having said that, I think that the harm clause, if viewed from the public perspective, is on balance an important safety net. It adds another layer of protection that I think on balance the public is better off having. Its relationship to diagnosis is important as well. If you remove the harm clause, my advice is do not touch the diagnosis clause even a little bit, because you will then be weakening this from the public's perspective in a way that I think is unjustified.

Ultimately people who come before you are, because of how the process works, the providers of some service. The less restriction they have to do whatever it is they do, the less they have around them in terms of responsibility to the public, the better off they are. It is safer for them. But it is not them we are ultimately seeking to protect. We want to be fair to them but to protect the public.

In summary, I think the system does not fall apart if the harm clause is removed. Having said that, I believe the public is served in a significantly better way if it is kept in in some form. If it is removed and you tamper with the diagnosis clause, it appears to me that you are now removing layers of protection from the public that are impossible to justify.


Mr Beer: At the present time, the harm clause is not in the legislation and you are saying that if that is so, then be careful with the definition of "diagnosis."

Mr Schwartz: And I am urging you to put it back in.

Mr Beer: Right. Now the other term that is linked in is "assessment," and many people who do not have one of the controlled acts, or not as many as they would like, have suggested that the term "assessment" does not allow them in effect to do some of the things they have been doing or that "diagnosis" would provide that. As you wrestled with those terms, "diagnosis" and "assessment," is there a definition of "assessment" that might help if it were in, in terms of what people could do, or how do you see that distinction between those two terms?

Mr Schwartz: Let me just add one thing to the harm clause thing. It is easier to take it out, and I do not mean that in a facetious way. When you are looking at this kind of legislation, if you take it out, you satisfy a whole large group of people, and there is nobody in the actual public, whom it is going to protect, saying, "Son of a gun, I am better off with it." So the easy thing is to remove it. The more difficult thing is to keep it in. If you keep it in and it is going to do all these terrible things that people say it will do, which I do not accept at all -- I fundamentally believe they are misinformed -- the package is done in a way where you can take it out in two or three years. If you do not put it in, there will be tragedy before you start thinking about putting it in, and it will be tougher to put it in than to take it out. So I just want to leave you with that thought on the harm clause, that in a sense, taking it out is the easy thing to do.

Now, diagnosis and assessment. My first comment is I do not believe it is useful or necessary to define "assessment" in the act. There are a number of different reasons for it and a number of different ways of looking at it. Currently there is a licence to practise medicine. I know that does not mean taking my temperature in the morning or telling my child, "You have a cold," but I do believe that if push comes to shove, it does mean "diagnosis" as it would be defined by a court looking at the facts.

Having said that, I think there is an important distinction between "diagnosis" and "assessment," although I understand that the words in the generic sense are used interchangeably. We are not discussing this broad level. I am aware that many groups are saying to you, and said to me, "If there is `diagnosis' in there, we cannot do what we are doing today." I do not accept it. I think they are mistaken. I do not believe there is anything to say that they are right, but this is one of those arguments we could have for ever. They will say: "We don't believe them. We think it will happen the other way." The only way you will actually know is when it is in place and working.

I want to ask you to do the following: Imagine, if you will, that you are here as a committee and the problem before you is that we want to give an exclusive licence to the practice of medicine today. Everybody in Ontario would be lined up for 5,000 miles saying: "I do part of that. The system will collapse. We couldn't go on. We assess. We diagnose. We do all those things." Somehow, miraculously, it has not stopped them. The system goes forward and works.

I believe that when it comes to it, the courts, as they almost always do, will come to a commonsense meaning within the parameters of this entire bit of legislation, understanding how health care is delivered, and give a definition for "diagnosis" that will suit a particular case in a meaningful way. They will understand that every single day people look at you and say, "You have a sore shoulder and I am going to treat it," and that this is not the diagnosis, because it does not get down to the different layers of underlying cause that are myriad in a full diagnosis, that this is the difference and health care providers are doing just fine without it.

Some health care providers such as medical doctors require it, because they do it, but not everybody does do it, and while everybody wants to say they do it, because it makes them feel good, they do not. It is not your responsibility and it certainly was not mine to make them feel good. It is our responsibility to make the system work in a meaningful way for the public. They will, in my view, be able to carry on, and the argument that they cannot is either misinformed or in many cases mischievious, as people look to take a final grab. That is natural. Everybody wants an extra piece of the pie if he can have it and what better form to have it than this.

So what can I say? For years this was the big issue. Everybody wanted as much as he could have, and I do not blame people for that. I am not critical of them for it, but I urge you not to allow the interests of particular professions to make you lose sight of the whole. By the way, the moment you start to give diagnosis in little increments to other groups, there will be a lineup of new ones who say: "Wait a minute. If you gave it to them, the principle has been eroded, and I ought to have it because what I do is not so far different from the next group." Then you will end up providing diagnosis in 35 different ways and you truly will block the system. You will block its evolution, you will block its ability to work and you will block the co-operation that I believe the system will put in place.

Mr J. Wilson: Mr Schwartz, thank you on behalf of our caucus for your years of hard work. We certainly appreciate your comments concerning the controlled act of diagnosis. This morning you have been able to expand on some of the things, although we have obviously heard some of the comments from legislative counsel, but you did say in your remarks that physicians, for instance, need the diagnostic act, the controlled act, because they do it. Certainly, there is no argument there, but it seems to me that in the course of these hearings we had groups -- speech-language pathologists come to mind -- telling the committee that they have spent several years, more years than a physician, for example, learning their trade and learning what they say is diagnosis. They want the ability to communicate that diagnosis to their patients. So I am just going to ask you to continue with this, although you have said a great deal about it.

I understand from legislative counsel that there is a worry that if we start tinkering with this controlled act and giving it to other groups, as it were, there would be some sort of domino effect. Do you want to expand on that for another minute or so?

Mr Schwartz: First, let me start with speech-language as a specific one. Speech-language people are highly trained. They are well trained in what they do. They are highly qualified at what they do. They have an important role in the system. None of that says they diagnose, none of it, because it does not matter how many years you went to school. Going to school is important in terms of what it teaches you. Physiotherapists go to school for a long time and are highly qualified and play an important role in the system. When you go to a physiotherapist -- so I take the pressure off the speech-language people -- you go with something that is supposed to be a prescription, and it says, "Sore left shoulder, stiff right knee." So I guess the physiotherapist can say: "Well, the doctor just told me there is a sore left shoulder. It is up to me to diagnose what it really is."

What these people are trained to do, eminently trained to do, and should be encouraged to do, is to treat symptoms, and they can do so, but diagnosis goes to a level which is different. It goes to root cause, and root cause is often exceptionally complicated. Layer upon layer has to be stripped away until one is certain of root cause, and while sometimes you know root cause because it is self-evident, it is not always so.


If you took a group like speech-language and provided them with this diagnosis, which I begin by saying they do not require to do exactly what they are doing today -- that is my first principle; they do not need it -- but if you give it to them, believe me, what you are going to have, just to pick on another, is why should you not give it to the physiotherapist? Then if you give it to the physiotherapist, let me go down the list and tell you, you are going to give it to everybody. I do not believe that is either necessary or in the public interest. What it will do, by the way, is it will make the speech-language people very happy. They will be delighted. They will think you are a nice man. They will think the legislative process works perfectly.

Mr J. Wilson: That would not bother me at all.

Mr Schwartz: Right. I understand. The issue, though, is whether it really is needed, whether it is better for the system and whether it is in the public good. My view on that is no, no and no.

Mr J. Wilson: Just to play devil's advocate again, I certainly understand the points you have made, but there are a number of people who would say, "There's an economic argument here and it is better for the system not to have to refer someone to a physician." For instance, audiologists make what they tell us is a diagnosis. They tell us they would not be able to communicate that diagnosis to their patients, which they say they are doing now, but instead would have to communicate it to the family physician. The person would have to go back to the physician to hear the news and then back to the audiologist for treatment. Now there is certainly a perception out there from group after group that this is what the new system would be.

Mr Schwartz: It is a perception of convenience. There is not the slightest evidence that this is so for most of these groups. It is a perception, and if it is a perception, you cannot deal with it with words, because the only thing that will solve the perception will be for the system to be in place and to work the way I believe it will work. Then they will see it is not so. There are no words I could say today that will provide comfort to people who want to say: "I don't believe that. It'll work differently." I accept that. It is one of these arguments that you could discuss for the next five years without coming to a conclusion. You either have to believe it will work one way or work the other. I, for one, do not believe that it will work the way people are saying it will work.

I also believe that most of them understand that, but some of them truly do not. But most of them do, and this is an argument about getting more status, more economic power and a so-called more important place in the system. None of that should concern you. In fact, I urge you to throw that out in your thinking, because it is absolutely the last thing that is important. What we want to have in place is a system of delivery within the regulatory framework that is as flexible as can be while protecting the public to the extent that is feasible.

Believe me when I tell you that the way the system is drafted, if these people are right, the fixing of it will be easy. If you go the other way, taking away what you give them now, if they are wrong, it will be much tougher. If you give into what they want and grant it to them, it is like all the time. Taking away what people have is pretty tough, and you will not do it because legislatures do not. If you go the other way and they turn out to be right, which I do not think they will, you will be able to fix it relatively easily. The system is not perfect. I said that at the beginning and I accept it, and there will be some glitches. The glitches will fix themselves.

Having said that, these are policy decisions you have to make. What will better serve the public? My view is that what will better serve the public is to go ahead, and if they are right you can fix it easily. If I was right and you go with their solution, you will have hurt the public in a way that you will not be able to easily change, and that is the tradeoff you have to think about.

Mr Martin: I would like to continue to some degree on that same vein, except to put my question into some context. You have referred to one piece of it already. To start off with, at one point in time, medicine was seen as that which doctors do. I think anybody who has had anything to do with the medical profession over the last few years will agree that medicine is changing more quickly and that the understanding of health care is broader now than it ever was before and that who actually participates in that scope of activity is up to question. With that in mind, there is the evolution of our understanding and not understanding how medicine is delivered and who participates in that process. I come from northern Ontario where professionals are not always readily available to do the kinds of things they are asked to do, perhaps solely, under this legislation and I am speaking maybe for some of the members who live in rural Ontario.

When you did your study and proposed what you did -- I accept the principles under which all of that has been presented -- did you consider the needs of remote areas of northern Ontario and the need for diagnosis quicker than that which could happen if only a certain class of people could do that, and the transportation difficulties that are up there and in rural Ontario where access to certain professions is not always that readily available, or was this piece of legislation designed simply to accommodate the ever-burgeoning Golden Horseshoe challenge of providing medical care? I will leave it with that, and then we deal with a supplementary.

Mr Schwartz: Let me start and try to come at it in a number of ways. First, I think we considered rural and northern Ontario every day of the week and thought about delivery issues every day of the week. So to the extent that you are assured by my saying that, let me begin by saying it because it is a fact.

Second, saying that somebody can diagnose does not mean they can't in rural Ontario or anywhere else. What is of more concern for northern Ontario and for rural Ontario is to be able to ensure that people can do and follow certain treatments under certain circumstances where others are not available. That is a legitimate concern that should be addressed to the extent legislation can address it.

Having said that, you cannot magically say, "Because there is nobody there who legally can diagnose, let's say somebody else can diagnose." It is different. I want to differentiate these issues. But having said that, I want to come back to the principle which says that to the extent we can recognize that rural and northern Ontario require treatment to be delivered sometimes by people you would not think are the first line to deliver that treatment, I am sympathetic. I believe the legislation should be as flexible as it can be to allow that to happen without consequence befalling those who are put in a position of providing the treatment.

Mr Martin: What I might hear you saying is that because people are limited to treatment, they may never get to diagnosis because it is not within their scope and because there is no convenient access to the professional we may for ever continue to do treatment.

I cannot help it. It just keeps running through my mind. A while back I had a problem with my car in that my starter kept breaking. The mechanic I was bringing it to kept putting in new ones and they just kept breaking. Eventually I got to a mechanic who told me there was a little glitch in the flywheel, the starter, that broke it all the time so we needed to fix that. I just have the fear that if we do not allow folks a greater scope in some of the remote areas to do diagnosis, they will continue to simply do treatment and people will not get helped.


Mr Schwartz: Let me try to deal with that. Let me start with what I said earlier, which is you cannot say, "You can diagnose," and therefore you can. What the system does try to do to address the issue you have just raised is to allow health care providers to evolve in ways that are required by the system and ways that are encouraged by the educational programs in Ontario and otherwise. So if people's skill levels generally -- let's not focus just on diagnosis -- or the needs of consumers change, the system is evolutionary enough to take that into account which, by the way, the current system is not.

If people learn to do diagnosis, if providers learn to do diagnosis who currently cannot do it, I suspect they will go before the advisory council that is in place and make a case that they now have a kind of diagnostic ability that they may not have had four, eight or 12 years ago, and it will be granted, but it will be granted because they will show that they actually have the ability to do so rather than because there is a perceived need for somebody who has that ability to be there. Because there is a perceived need for somebody in a certain town to have diagnostic ability, it is not sufficient to say, "I designate you as the person who has it." You actually require somebody with that ability to do it.

Hopefully the system will evolve, not only through the regulatory system but through other mechanisms, so that no part of Ontario is left without people with the ability to diagnose ailments. I do not know if that is the case in parts of Ontario today, but if it is, it should not be. You cannot solve it by simply saying, "I'm going to give a legislative right to somebody else to diagnose." That does not solve the problem. It does not deal with the problem. The problem has to be dealt with, I am afraid, in other ways. I come back to my first response which says that is also different from allowing people to treat.

Mr Martin: I have another supplementary from my initial comment. Understanding of the delivery of health and health care issues is expanding as we speak. I have noticed more problems today in the area of mental health than ever before, yet we have more professionals out there than ever before. Regarding the harm clause you suggest we put back in, I have a concern that those who would participate in the realm of mental health as semiprofessionals, perhaps connected with churches or social organizations, may in fact back off from doing that good work. A community needs to heal itself, and often those kinds of people who simply have goodwill and want to participate will back off and not participate.

I use an example in my own life, of people who used to drive young people to ball games, tournaments and camping and who stopped doing that because of the sue-me attitude that developed in communities. If you get into a car accident, you could be paying for the rest of your life, so you decide: "We're not going to do that. Forget it." A lot of really good programs that used to take place in communities that were very mental health oriented, took care of kids, have stopped happening because people were afraid they would be sued. They do not do it any more unless they have hugely expensive insurance policies in place.

Again, I look at northern Ontario and rural Ontario where we do not have the kinds of opportunities to do things that they have in the larger centres. People will back off from being involved in the whole area of caring for people in the self-help type of operations that often are the best thing that is happening around mental health in a community. That harm clause will impact there.

Mr Schwartz: First of all, your concern is a legitimate one. Let me make it clear that the harm clause was not intended to, and in my view would not, impact on that. But let me come back to it in a minute and expand. The harm clause is not intended to stop pastors and social workers and people like them from doing what they do every day in communities in northern Ontario, in rural Ontario and in downtown Toronto. It was never what it was focused on. In fact, I would be horrified if it stopped them from doing it, because I think it would be wrong. Having said that, I do not believe it will stop them. I do not believe courts will find them liable for things under it.

If your concern is that there may be some wording that can be found that can be added to the harm clause that specifically takes away that concern, I do not know, but I would be more comfortable leaving the harm clause in because I think its benefits to the public are important ones in finding a way around that problem.

These are discussions which cannot easily be resolved. Social workers and clergy come in and say: "We believe we will be stopped. We have been told that is so." My response is I do not believe they will be stopped, and I am telling you they will not be. What kind of a discussion is this? You cannot come, in a way, to an intelligent solution based on one side saying, "We think it's going to happen this way," and another side saying, "We think it's going to happen that way."

Having said that, I bring you back to my earlier comment, which is that I think the overall impact of taking out the harm clause is bad for the public. At the same time, I am very sympathetic to what you say about social workers, clergy and others. While I do not believe there will be any harm done to them, to use a bit of a pun, having said that, it does seem to me that there may be some legislative words that can be found that make that clear. I would be more comfortable with that solution than what I consider the simplistic solution of just taking the harm clause out. It is always easier to do that, because you do not have the examples of what it is going to do to protect the public at large in front of you. Those examples will come and grow with the system functioning. It is always easier not to focus on it and to say: "Let's take it out. It must be bad." But simplicity, unfortunately, is not always the best route.

I can only sum it up by saying I am sympathetic. I think you are right. The legislation was not intended to stop those activities. I for one do not believe it will. If you are so nervous about it, find a way of coping with it, but do not strip away protections that the public will otherwise have the benefit of to deal with that problem. That is my bottom-line advice.

Mrs McLeod: I would like to continue with an element of that same theme because it is obviously a central concern for the committee, but I ask you to focus less on the issue of extension of diagnosis and more on the concerns we have heard that with the dropping of the assessment clause, the one you had recommended in the report, the ability to communicate an assessment seems to have disappeared where communication is not specifically included in the definition of "controlled act." That is quite different from the issue that some groups have with an extension of diagnosis.

Mr Schwartz: I should be up here telling you that if they took out what I wrote, it must be a disaster, but it is not so. There are a number of things on which, in my view, you could go one way or another and the whole system does not change as a result of it, and this is one of them. I put assessment in because I thought it ought to be in, but I am not uncomfortable with it out. I do not believe the impact that people have described around it will in fact take place. I cannot say anything more than I do not believe it.

It is not logical, because courts are, after all, creatures of logic and understanding of how systems work. When a judge who has actually been through the health care system once or twice looks at the totality of what is going on, there is no way he is going to imagine that the legislation is intended to curtail people from saying: "You've got a sore right shoulder and I think I should manipulate it. You've got a bad whatever it is and I think I ought to do this." Common sense tells you that is not what is intended and that is not what is going to happen.


Would I be happier with the assessment clause in? I guess the answer is by a little bit, because I had it in. But after that, I just do not think so. People are overreactive. They are overreactive in some cases because of genuine fear of the unknown and in some cases, dare I say, for political and strategic reasons. So people are overreactive to a lot of this.

As I said in my opening remarks, imagine what would be going on if we were here and my recommendation had been: "We'll have one monopoly. It will be the practice of medicine." What the hell does that mean? Nobody could do anything and it would be inconceivable to us today to do that. Yet that is the system, in a sense, and it works. This system will work and people will not be stopped from communicating these things that they are communicating every day.

Mrs McLeod: Let me ask another question then, something very specific that has been raised, I think, with some compelling arguments by a number of the groups, and that is the issue of title protection. I know the basic premise -- at least I understand the basic premise -- you brought to the legislation was that it be as simple as possible in terms of the issue of title protection. But we have heard a case, for example, from a speech-language pathologist that the term "speech therapy" is common usage and that not to protect the title of "speech therapy" would create confusion in people's minds and would in many ways subvert the intent of the legislation. I think we have heard similar arguments from --

Mr Schwartz: Psychologists, no doubt.

Mrs McLeod: Psychologists with psychological services, physiotherapists and physical therapy are the three that come to mind. I wonder if you would comment on whether or not there is not a valid argument being presented by those groups.

Mr Schwartz: I take exactly diametrically the opposite approach, and let me just take one minute and tell you why.

First, I think the most important thing about title protection is that it help the public. So how is it going to help the public? It has to help the public by allowing them to identify health care providers in different ways. If you protect a few titles, a simpler number, over time the public -- give them some credit -- will figure out that regulated speech pathologists have this title and other people do not, because for the next five years they will use that title and only they will use it. People will actually start making the association. So first, fewer titles makes the possibility of making the connection better. That is my first point.

My second point is that many people want generic protections of words because they will give them economic monopolies. Let's take a small example. I can give you many, but I do not want to get too far down the line on this. What is the importance of the word "psychological?" Here is the importance of it. You will have a school giving some broad psychological test and the next thing you know they will say: "Wait a minute. You cannot do that. That is mine. You need a psychologist to do it and if it is not a psychologist, you have to stop."

Title protection is another thing that is there for the protection of the public. It is not to grant wider monopolies to people. It is not to give people economic status. It is not to give people status in their community. The more narrowly you define those words, the clearer they will become to the public over time. The confusion today is for the other reason, that you have all these words floating around the same professions. They are used by others outside the profession.

My view is quite different than theirs and I believe that in many cases the economic motive is high on the list of reasons. So I am sorry, but I cannot agree with you or some of the groups. These are not new arguments to me.

The Chair: Thank you, Mr Schwartz. The request from Hansard is that you just speak into the microphone.

Mr Schwartz: Sorry Hansard, wherever you are.

Mr Jackson: Alan, it is good to see you again. I have three brief questions. The first one has to do with sonography and ultrasound, if you can share with the committee why it is not necessarily identified in or necessarily identified out. Can you speak to us about that issue?

Mr Schwartz: Yes. When I get down to very specific things like that, I am going a bit from old memory, but I do remember, from looking at the ultrasound issue very carefully, that there is not the slightest evidence in my view that there is any risk of harm at this moment in ultrasound that requires a controlled act, particularly given the settings in which these things take place and all the realities around it. But it was not there. It is not a controlled act because for me the evidence was not compelling enough to make it a controlled act. I want to say for ultrasound that my memory tells me it was not even close.

Mr Jackson: Just a minor supplementary then: It has come to my attention, and maybe members of the committee, that this argument aside, there is the notion that there are people operating ultrasound services in this province without the supervision of necessarily qualified persons. To the extent this practice is occurring, would that in and of itself not be grounds for reviewing that decision?

Mr Schwartz: No. You can find abuse of anything. It does not mean you have to put in place a complex, integrated regulatory system to deal with it. If you find those kinds of abuses, if they are real and if they are doing damage, there are other ways of dealing with it and I suggest that those ways be looked at first.

You do not want to, in a sense, cheapen the regulatory framework or try to make it deal with every single possibility. It cannot, it should not and it should not be asked to. There are lots of little things that go on, other players, some other situations, that might require some other kinds of regulations, some other kind of law passed, but it does not mean that they all have to be part of the regulatory framework that we are talking about. I think it would be a mistake to do it that way.

Mr Jackson: My second question has to do with presentations we received from the native community with respect to its unique status. As a lawyer, you will appreciate the evolution of their right to recognition of their customs, laws, etc. That is occurring from a legislative perspective, but it does not appear to have occurred in tandem with your review and this legislation. It surfaced in several areas and you are probably aware of those areas in which it surfaced. However, as to the cornerstones of your legislation, which are to protect the public, provide choices and not to confer status or benefit, it strikes me that native requests before this committee almost stand alone as not having been addressed from that perspective.

Mr Schwartz: Let me begin by saying you are correct. They were not addressed from that perspective. The native concerns may be valid. I have not examined them. I have personal views on native rights that are not relevant in a sense. Having said all that, it is no reason to stop. It does seem to me that whatever agreements native groups in Ontario work out with the government of Ontario in relation to their own status and their right to, if you will, opt out of existing systems and have their own, will be unaffected by this. If the agreement allows them to opt out of this totally or in part, it should do so as part of a comprehensive understanding of the native issue and not in a piecemeal way.

I for one believe it is a mistake to wait until that works its way out. There is no reason to believe this is a particular impediment that is any lesser or greater than a million other impediments before them, or that it will require any particular hardship to deal with. I do not think it will. That does not for a moment suggest that I do not think they ought to be able to opt out or do anything else, but I do not believe it is a reason to stop, because if you stop for that, there will be something else to stop for.


Mr Jackson: I do not believe I was suggesting we should even consider that. The question is one rather of concern as to who, if anyone, is studying or considering the issue or listening in this matter. You can advise the committee if in fact this matter was specifically told to be exclusive of your review and report.

Mr Schwartz: The answer to that is, it was not. But the other side of the coin is that it was not an issue we looked into in any detail, because we were not asked to by anyone, including the native groups, we did not deal with it.

Mr Jackson: All right, I will leave that. My final question has to do with --

The Chair: What I am trying to do, Mr Jackson, to be fair, is to divide the time available equally between the caucuses in the numbers of questions that are asked. Could you make this your last question?

Mr Jackson: Is it the number of questions or the time?

The Chair: Both.

Mr Jackson: Good. Then my final question has to do with the practice of chiropractic. There were compelling arguments made, predominantly from semiprofessional and professional athletes, around this sensitive issue of diagnostic extension to chiropractic beyond the vertebrae. Again, it strikes me that these were issues that dealt with protecting the public and providing for choices. Can you share with the committee for the record, publicly, what your concerns were? We are familiar with what you have recommended and you are familiar with what the response has been, but these presentations, which I found most compelling, are from the public and not necessarily from the chiropractors themselves.

Mr Schwartz: I would say that in relation to chiropractic, at the time I did the review, I did not believe there was compelling evidence to suggest that they can do diagnosis, for simplicity for the moment, of the extremities. I still do not believe that. This is different than a discussion of what they are very capable of treating. They are exceptionally capable of treating many joint-related ailments. I think they do it well. I think they do it in a way that benefits the public, and I think the public has lots of choice about going to them and do go to them.

On the other hand, my current view is that giving the right of diagnosis to chiropractors in relation to these particular areas should not be based on the evidence of athletes. The evidence of athletes is that they were treated and that the treatment worked, not that there was a diagnosis of underlying ailment. You do not know that, because there is a difference between the treatment and diagnosis. Moreover, I go back to the issue I raised earlier. I remind you that chiropractors are covered by OHIP in Ontario. These arguments often have economic implications that are crucial. I believe this is one of them.

The issue before you is whether you want -- and this is the beginning of it -- the chiropractor to become the GP of tomorrow. Maybe you do. I do not know that. But there is no doubt in my mind that chiropractors are well-organized. They have a very clear agenda and are moving towards it. I do not fault them for that. The real question for me is whether I believed the evidence was there, and my response is that it was not.

I am certain, by the way, that athletes are well treated by chiropractors. I respect what they do. I think they make an important contribution and have an important place in the system. Those are different arguments than suggesting that this means they can diagnose to the extent they say they can. They do not, by the way -- well, I will just leave it at that. I just do not accept the argument.

Mr Hope: One of the areas I would like to focus on is the controlled act dealing with attendant care and social workers. I was listening to some of your comments where you were saying the diagnosis is getting to the root of something. A lot of social workers get to the root of a problem through stripping away, through consultation and through dialogue with the patient. I am trying to get an understanding around attendant care, first of all, giving these people the ability to live independently, using attendant care to help in their everyday living. Social workers do get to the root of the problem. That is where I am trying to put the two. First of all, it would be around attendant care. Section 26 does stop them, does it not?

Mr Schwartz: The question is, stop them from what? I need more information.

Mr Hope: Performing the daily contributions to living for a disabled person.

Mr Schwartz: All I can say in this discussion is I disagree with that totally. We are into a question of what is it a court will do. I do not believe that is what was intended. I do not believe that is what the legislation will do. I know there are people who have come in here and said that is what it will do, but I do not accept that. I think it is incorrect. It is easy enough to say that is what it will do because since it has not been passed and is not in place, there is no way to say you are mistaken, other than to say you are mistaken.

Your premise that it will stop attendants from doing these things is not one I accept. I said earlier that I do not believe that any of the legislation, as it is drafted, will stop social workers from doing what it is they do. I do not believe it will stop them. They will be able to continue. They make valuable contributions to our society. This is not intended to stop them, and it will not.

Mr Hope: But if I am understanding you right, you are saying you will leave it to the legal process, which is the court system, where they use common sense. I guess we could talk about that commonsense approach, but when you are dealing with the general public and their approach to the social worker, do we try through an experimental process where we put people as victims?

Mr Schwartz: Sir, I do not want to be argumentative with you, but it is quite the contrary. This is not using people as victims. I think if you reflect on the legislation as a whole, you would not say that too easily. It is quite the contrary.

You have to be specific if you want to talk about people as victims and say exactly how it is going to happen. You could go back to my opening remarks. Today the practice of medicine is licensed. You could say, "Well, this makes people victims," helping social workers do what they are doing. Somehow they manage, and they will manage under this system. While you could have an academic argument about the perfection of courts, let me put it to you that there is no perfection in wording. You will never find perfect wording. You will never find wording that allows everything to happen exactly as it should. To try is folly because if you try you are sure to make serious mistakes, and each time you try to do it, you are opening up a Pandora's box that has 20 new issues related to it.

While I do not want to be glib with you, I think it is too much of a leap of faith to suggest that groups will be stopped. As I said earlier, if it turns out three years from now that there is a mistake in the wording that has stopped one or two of them, it will be easy to fix. If you go the other way, it will not be.

It is always easy when there is something new coming out. I do not know what it is. It is new. It is legislation. It is a bunch of words. You can say anything you want about it, because there is no ability to point to reality and say it will not happen. Because it is not in place, the criticism that this will happen or that will happen can be made by anybody about any aspect of it, and it is. That does not of itself make it sufficient reason to do something.


The Chair: If I could interrupt for a moment. With the consent of the committee -- we have now been through all caucuses twice -- would members try now to keep it to one question as we rotate through the caucuses so that we will maximize the fairness in time allocation.

Mr Beer: We do not get supplementaries any more.

On the question of the title of "doctor" in the bill, it sets out five who can use the title. We have had a number of people who have said, "If I've earned a doctorate, I should be able to use that title." I wonder if you could share with us the reasoning behind the proposal we have before us and whether you see ways that could be changed. What was your thinking? I think the fundamental point has been people saying: "Look, I worked hard for many years and arrived at a doctorate. Why can't I call myself a doctor?"

Mr Schwartz: Earlier we talked about title and a number of times I have referred to the most important part, which is the public, so title protection falls, as I said earlier this morning, into this category of what is best for the public. What is best for the public is to have easy ways of distinguishing and differentiating whom they are getting service from. Once they distinguish and differentiate, they can go to, within reason, whom they wish, but the information package is important.

If you put the initials PhD behind your name under the provision of health care, most people in the public, which is all I am concerned with, will understand how well trained you are and how many years you went to university. If you put "doctor" in front of your name, there is likely to be confusion as to what that means in relation to the provision of health care. I go back to my principle that I said earlier, which is that fewer titles are better, generally. Having said that, there are a number of professions which already have the title. Medical doctors are the obvious ones and that is what people in the delivery of health care think of, whether it is right or wrong, when they hear the word "doctor."

When we looked at it, we said, "There is at least one profession that has it currently that you can't rationalize in a logical way," and so to try not to take away what already existed, we extended it to include chiropractors because they get a diploma which gives it to them. Is that drawn in stone? I would say no, but if I erred in this area I would take it away from one or two groups rather than extend it.

I think extending the title "doctor" is a mistake. I think it does not serve the public well, while it does serve the egos of many others well. If I made an error, I erred in giving it too widely, so that in your deliberations if you said, "We want to change the use of the word `doctor' that has been conferred through the review," I would do so by narrowing it, because I believe that will serve the public better.

The excuse that says, "We have been well-trained and we have our PhDs and we are doctors in other circumstances," is all very well and good. People understand what PhD means. Use it. Say, "Jim Smith, PhD," or, "Joan Brown, PhD." People understand from this that you are well-trained and have this higher degree and this higher level of learning.

If you say "Dr Smith" in the provision of health care, it is confusing to people and unnecessary and unimportant except for ego. If you want to call yourself doctor in another setting, good luck to you.

Mrs Witmer: There has been a request made by the registered nursing assistants to have their own college. Every other province has a college for these individuals. I would like to know what the reasons were for not following through on this request.

Mr Schwartz: This is a slightly more complex issue. You tell me every other province does and perhaps they do. I am uncertain of that. I know some provinces do, but the genesis of this is quite different in those provinces and the parallels are not always as even.

My view in looking at the request of nursing assistants to have a separate college was that they did not meet the criteria. I believed it then; I believe it now. I do not believe it is in the public interest for them to have their own college at this time. That is not to suggest that I do not think they should ever have it, but I do not believe it is in the public interest for them to have it at this time.

The argument is made passionately by the Ontario Association of Registered Nursing Assistants. OARNA represents a relatively small number of the registered nursing assistants in Ontario. It is somewhere around 10% or 12% of them. They do not have universal support, even within their own membership, and on balance, I do not believe it is in the public interest to do it.

I think the current system where they are part of the College of Nurses of Ontario reflects reality and better protects the public. It may be that some time in the future that will change, and the mechanisms are in place for it to change if it becomes appropriate. I think it would be a serious error at this point to give them their own college.

Mrs Witmer: Just as a follow-up, you indicate they do not meet the criteria, and I guess I would be interested in knowing what you feel the appropriate criteria are.

Mr Schwartz: I do not remember them all, but if you look in the report, they were listed. There were four of them. We looked at them all, and they failed on some and they passed on some, if you will. I do not remember the specifics. You have to remember, this was one of many decisions and it was made four and a half or four years ago, but I remember clearly my sense that they did not meet the criteria at the time. Nothing I saw until the end of my time in the review changed my mind about that. I would be very surprised if something significant has changed since then. I am sorry I cannot be more helpful. That is what I said earlier. There are details I would not want to get into without running back to mounds of notes.

Ms Haeck: Thank you very much for this opportunity. There has definitely been discussion either by the presenters or the various professional groups coming to our offices making a point that they feel -- not in all instances, and there are at least two that very quickly come to mind -- their scope of practice is not reflected in the current proposed bills. You have given some comments with regard to chiropractic. What are your feelings regarding optometrists?

Mr Schwartz: That was predictable. Optometry and chiropractic were two of the professions that throughout the review pressed for expansion of their scope of practice. Without disrespect to either of them, it was my view and continues to be that whatever concession would have been made, there would have been a request for a further expansion.

On the part of optometry, there is no question that there are times where the request becomes, "We're medical doctors." At other times the request is a different one, and it was a moving request, if you will. I believe that for optometry, while it is not perfect, it is close to what they actually do, not what they wish to do, not what their counterparts in other jurisdictions may be doing, not what they think they will be doing in three years, but what they actually do. Are the words around optometry perfect? That would be one where I would say they are not and one could spend a little bit of time making it more precise.

Ms Haeck: Just because we have had presentations around the words "refractive" or "optic" or "ophthalmological" or like that: any comments on those three?


Mr Schwartz: I do not because I would have to sit down and look at it in a way that I have not done for a number of years. On the one hand, I am saying on that particular issue that I could see some movement, but I urge you not to allow the movement to be a hidden way of making them medical doctors, which they are not. They are highly trained people who do an important thing, and that thing should be reflected. Their scope may evolve and in fact may have evolved in some other jurisdictions, but that is not a good enough reason. If it evolves to somewhere else tomorrow, they will have the ability under these proposals to make that argument there.

I guess my bottom line for them is that I think there is some room for movement, but I urge you to be cautious in the movement to ensure it does not suggest a scope broader than the reality.

Mr Waters: I managed to sit in on some of the other hearings. I am a bit concerned.

The Chair: I am sorry, Mr Waters; in rotation, I apologize, Ms McLeod is next.

Mrs McLeod: I wanted to raise the issue of hearing aid prescription and access to the service, which is another of the concerns that has been raised with the committee. It seems quite clear in the legislation following your report that prescription can be done by both physicians and audiologists, so the audiologist does not need to be involved in every prescription of a hearing aid. Is that your understanding as well?

Mr Schwartz: Correct.

Mrs McLeod: Did you deal with the question of concern for access with limited numbers of audiologists, or was it your sense that physician to hearing aid dispenser was sufficient to deal with the question of access?

Mr Schwartz: It was both. I think physician to hearing aid dispenser is sufficient. I think audiologist to hearing aid dispenser is sufficient. But I do not believe it requires the audiologist. So my answer, to be clear, is both. Access is an issue and that alone may have been enough reason to do it, but I believe it for both reasons.

Mr J. Wilson: We had appear before this committee the College of Physicians and Surgeons Task Force on Sexual Abuse of Patients and one of its requests or recommendations was to include in this legislation wording such as a doctor convicted of sexual abuse should automatically lose or should therefore lose his ability to practise medicine. I was wondering whether you feel that type of amendment would be appropriate in the Medicine Act in the scope of this legislation. It opened up a whole area we are very sympathetic with.

Mr Schwartz: I am not as current as I am sure you are on the sexual assault report. What I know is what I know from the newspapers, I am afraid. My understanding was that the report had not been finalized, and I may be wrong about that. I would not make any amendment, first, until there had been a final report.

Mr J. Wilson: Just to help you on that, how about if I told you that we are almost certain this will be one of the chief recommendations of the final report?

Mr Schwartz: Second, I would say it is my understanding -- and I stand to be corrected on this because it is just from the newspapers -- that this is a report which is certainly legitimate enough in dealing with an exceptionally important public policy issue that used a different methodology than, for example, the health professions review. I am unclear how widely this report has consulted.

Without thinking about sexual abuse, this is something I referred to in my opening remarks. Sexual abuse is a horror and has to be stopped. Having said that, I believe that issues as important as the horror of sexual abuse require broad consultation so that you do not go swinging down the road of too easily removing the rights of various individuals. I do not know whether this report is doing that. But having said that, when the report comes out in its final form with that as a recommendation in a context of some sort, which I am unaware of, I suspect that will be the subject of some spirited public debate, as well it ought to be, because these are fundamental freedoms we are discussing.

Having said all that, I want to make it clear, that sexual assault is a horror that has to be dealt with clearly and has to be dealt with as precisely as the system can. I cannot comment on whether I think that is a good amendment or not because I do not know enough and I have not seen the final report. I do not understand the context very well. I do not understand at what point this will happen. I just do not know enough about it.

These are the kinds of amendments, however, that can be brought in quite easily after you have had the required public debate. I think you owe it to the system to have it. In a funny way, it cheapens it to do it too quickly. These are exceptionally important issues that require your thought. It requires the input of a broad range of individuals. That may be what this report has done. I just do not know enough, so I do not feel comfortable telling you that this is a great idea or a bad one.

Mr J. Wilson: I appreciate that.

Mr Waters: As I started to say before, I have some concern. After sitting in on some of this, what I get the feeling of, and actually in a lot of discussion in my riding what we seem to get the feeling of, is that doctors are now going to have more rights than they had before and have a better stranglehold, that instead of opening the system up, everybody has to report to the doctor and have very specific permission to do anything with the diagnosis.

I will give you an example. A doctor might take 100 hours' training and another person in a certain field might spend four to five years training on that particular thing. Yet the doctor has the right to diagnose and the other person who has spent four years of his life versus 100 hours does not. I would like you to reassure me of your feelings and how you arrived at that.

Mr Schwartz: First, let me start by saying this is not a contest. I do not see this as sort of being in a bazaar in Morocco where we are trading off this for that. I never viewed this as a contest between doctors having more or less than they had before and I think it is an inappropriate way to approach it. In dealing with it in the generic sense, as you have, my response is that what are now controlled acts for the medical profession, in my view, is less than they had before. I think the evidence of that is overwhelming. It is not more; it is less. I believe it is significantly less. I believe that almost everybody who looks at the system carefully and reflects on it understands that it opens the system up in a number of important ways. People come to your constituency office and say, "No, it doesn't." All I can say is I disagree with them. It does.

This question of people being trained for hundreds of hours was true before. It will be true again. It does not deal with ability to diagnose. It deals with other things because the ability to diagnose is much broader than the specific training being given to people to deal with certain types of ailments or certain types of disorders. It is a different ability that requires different training and different information bases.

As I said earlier, it is like me looking and saying: "I notice you are limping. I was playing touch football with you last weekend, and I saw you trip and land on your knee. You've got a bad knee, so I think what you ought to do is rest it and stretch it." Did I just diagnose you? Of course I did not. But I might say, "I think you ought to go to any one of a number of health care providers who are trained, in some instances better than doctors, to do the actual work on the knee." It is different. They are trained to provide that service and they are trained very well, but their ability to tell you in each instance the root cause of the sore knee differs widely and unfortunately, only a very limited number of people can do that. The current system, let me make it clear to you, protects that right, and if it did not, you would be taking away a tremendous protection from the public, and in doing that I think you are acceding to special interests in a way that is wholly unjustified.


Mr Beer: I realize time is passing and there are many questions we have. I am trying desperately to think how I can link the public participation on the councils to whether nurses need to have the authority of particular people to do things.

Mr Schwartz: I can answer both, now that you have said it.

Mr Beer: Now that the question is out, perhaps you can weave both in as you answer.

Mr Schwartz: Sure.

Mr Beer: One of the key questions here is public participation in the councils and how that will work. We have had a number of different approaches: that a third of the membership should be from the public; something just less than 49%; the College of Physicians and Surgeons of Ontario suggested 40%. As you look at how those councils ought to work and the balance between professional people and laypeople on them, what should we be directed by in trying to determine this? Maybe there is not a balance; maybe all you can say is it is between a third and 49%.

Mr Schwartz: I think that is not a bad answer. Let me start by saying that as long as it is under 49%, I do not have the slightest difficulty with it whatsoever, so if the number is 49% members of the public, I think it is appropriate.

Should it be a third, should it be 40%, should it be 49%? None of those numbers are magic and, given the makeup of various colleges, I could see it differing slightly from college to college, depending on what the individual makeup is. You might end up with a minimum base of X and a maximum of 49%. I think that would be a commonsense solution to this kind of issue. It may very well be, for example, that for the College of Physicians and Surgeons, when you actually look at it, 40% works just because of the physical makeup and the numbers and the other balances, and that for another the number turns out mathematically to be 45%. I do not think you should get hung up on those differences. I think it is a mistake. I am comfortable anywhere in that range and think you should leave it to the individual mechanism of each college to find a solution.

The principle of increasing the public's involvement in the colleges is the important one. I think there appears to be general agreement with that, at least among the committee and on the political side, and while that may not have been accepted wholeheartedly by all the colleges earlier, it is now accepted as a reality. Once you have accepted that reality, there is no magic to any number and I would not allow that to become a stumbling block.

The Chair: Question, Mrs Witmer.

Mr Schwartz: I did not get to tell you about controlled acts for nurses, I know.

The Chair: Did I cut you off? I am sorry. Do you want to finish? Go ahead.

Mr J. Wilson: It is a separate topic.

Mr Schwartz: It is a separate topic, you are quite right, but he did a wonderful job of trying to connect it. Controlled acts for nurses: I believe there have to be controlled acts for nurses. I believe you cannot give nurses the power to do those controlled acts without some regulatory mechanism around it. The mechanism chosen by the review was one sort. I believe other sorts can work as well. The important thing to recognize, it seems to me, in relation to that is that there must be a mechanism that is clear so that nurses cannot run whole hog down the line, doing all of these things, without clear rules and understandings of the circumstances under which they can, and who it is who can from among the nursing profession.

This is one area where I would say the review came up with one method of doing it. It seemed most logical at the time, but I could understand doing it, for example, by regulation, if the regulation is carefully drafted. By the way, I know people think I am too tough on some items. I hope people notice there have been a few where I have said it could work another way. It is okay.

Mr J. Wilson: We are taking meticulous notes here, so keep that in mind, Alan.

A number of professions appeared before the committee and expressed the concern that the powers of the minister under the proposed acts are too onerous, and that where the language of the act requires colleges to do certain things, if they are not done, the minister within a prescribed time period will go ahead and do them anyway through the Lieutenant Governor in Council. I was just wondering if you had any comments there. Certainly the overriding concern was that perhaps with the minister's omnibus powers here, it is undermining the principle of self-government.

Mr Schwartz: That is theoretically correct, but "undermining" is a strong word, because what we are continually looking for are balances. I believe in the ability of these professions to regulate themselves quite a bit. I believe in the public interest being paramount and I believe each one of these colleges will, most of the time, understand their public responsibilities.

Having said that, there is a balance. The balance ultimately is that the elected Legislature and the minister are responsible. If there is a clash of wills over the public interest, ultimately it is government that decides in these kinds of issues. There are potential situations where I could see a minister being required to "require."

Let me make it as straightforward as I can to you. One would hope it never happens. One would hope that if it does happen, it is so much the exception that everybody stands up and takes notice for the next five years. I believe that will be the reality. But I think ministers in government require a stick sometimes and for those sometimes I think it is worth while.

The principle that these colleges will act in the public interest is paramount. I think they will, but I would not take away the minister's right to "require." I know it was a matter of some controversy. It is the reason why in my particular run at the words it began with a "request," not a "requirement," because I think the use of those words is an important symbol of the co-operation and dialogue between the minister and the colleges and the same role they share in protecting the public interest. So I chose those words to reflect that while in a strict sense it has no legal nicety to it, it has another nicety to it that I thought was an important one, and it was to try to address the very balance that we have talked about. I think those words are now gone, but I am not sure.

Mr J. Wilson: Yes, they are. It is clearly "require," and groups have come and asked us to go with your recommendation of "request." It particularly comes down to the complaint process, where people are worried that ministers may pursue a complaint beyond that which the college itself is comfortable with.


Mr Schwartz: This is one where again I do not think the world turns on it and I do not want to pretend it does, but I do think leaving the "request" phrase in is helpful to the balance of the overall system and recognizes the responsibility, the good sense, and the public spiritedness, if you will, of the college system.

Mr Martin: I was going to ask a question around that subject too, but I think it has been answered, so I will chase the diagnosis clause business again a little bit further and suggest to you that I do not think that what we have here is a bazaar. You suggested earlier to my colleague that when we get into the issue of who can diagnose and who cannot, we may have a bazaar-type atmosphere and that in some instances it may affect the delivery of health services.

You said in your opening comments that under legal and procedural provisions, it did away with the concept of the pecking order. But if we look at delivery of health services as trying to get to the root of the cause of disease, away from simply treatment, then to place the ability to diagnose in the hands of a few versus, as my colleague said, those who have had many years of training in a particular area I think creates the pecking order again. And it takes away from some communities that do not have some of these professionals in great numbers to do the job they are doing now and perhaps could do in even more creative ways.

Mr Schwartz: I have been misunderstood if you believe what I said was that it is either desirable or required to have diagnosis in each and every instance. It is neither desirable nor required. It is not necessary to diagnose --

Mr Martin: I am suggesting to you that maybe it is. If you want to get to the bottom of why your knee keeps popping out, maybe there is something else that you need to know about your being, or if there is something wrong with your ear for ever, perhaps we should be getting at the root cause of that.

Mr Schwartz: Ultimately you are right, if it continues to be a problem that goes on and on. I suggest that if it is a problem that goes on and on, you work your way through the system till you get a diagnosis that is appropriate. Having said that, the reality is that most things do not require it and do not get it, and for those the system handles it just perfectly here, and almost in every other jurisdiction that I am aware of. So to start with, you might say a diagnosis is, "I want to have a world where everybody is diagnosed for everything." It is not going to happen and saying people have the right to diagnose does not make it so.

The reality of the system is that most things can be treated based on, to use the words we were using earlier, an assessment of what the problem is: "I've got a sore shoulder." Diagnosis is only required by exception, and whether you are in northern Ontario or in a rural community, if the treatment does not work, ultimately you work your way through the system to a place where there is diagnosis. But just saying, "Whoops, because I would like to have one ultimately, I am going to give this person the right to do it," does not mean they can. That is the difference. I do not want you for a moment to believe that in this jurisdiction or in any other jurisdiction in Canada, the United States or western Europe that I am aware of, people who have some sort of ailment get diagnosed each time in the sense of the word we are discussing here. They do not. You do not have to.

Mrs McLeod: The advisory council has been referred to a number of times, and clearly it is going to have a significant role on an ongoing basis. I would like you to add any comments you might make about the clarity of the role the advisory council has, its structure, the way it can be used most effectively or any concerns you might want to flag.

Mr Schwartz: The advisory council is something, I am sure, you did not spend all summer talking about, because it is not in the interest of groups that are coming here asking for more to talk about it. The advisory council, in my view, is a unique part of a unique package. The package itself, the way it is structured, allows for evolution and change, legislative change.

The advisory council is a perfect public forum, as perfect as one can get, by the way, in public forums. It will have lots of its own headaches, but it is a public forum to carry that through. So many of these groups that are here before you saying, "Oh goodness, in a year or two we are going to need this or that," or, "If we do not have this it will be a disaster," know very well that unlike the current system, or for that matter any other system I am familiar with, they will be able to go with very specific cases before this body and have a very specific conversation, where others will be able to participate and give evidence or do whatever is required so that there is a true dialogue based on the facts, not based on supposition, not based on general comments, not based on people saying, "I am sure that is what is going to happen."

I am sure they will then come with the reality of what has happened. The advisory council will listen to all those realities, and within the context of the overall framework of what is going on will make recommendations. All of that will happen publicly. It is unique and I think it is excellent. Now, is the advisory council perfect? Probably not. Will it get bogged down? I am sure it will at times. If it does, you might find ways of improving it. I cannot think of any offhand. I do not think it is important enough to worry about it. What is more important is the priniciple that it exists and will be capable of dealing with some of the problems we have talked about today.

It is curious that during the review, many of the groups that have come before you clamouring for more were clamouring for the advisory council and how important it is, but now that they have it, it does not exist, because its very existence it seems to me weakens the need for them to have it all yesterday. They do not need it.

The Chair: What I am proposing is that Ms Witmer ask her question, Ms Haeck ask her question, and then we ask Mr Schwartz if there is anything he would like to say in summary to the committee. Please keep your questions very short.

Mr Schwartz: I am desperately thinking of a summary now.

Mrs Witmer: Just briefly, there is some concern by the Ontario Nurses' Association that the management, research and teaching nurses are presently not covered by the act and that for purposes of discipline this could be a problem. What is your feeling?

Mr Schwartz: My instinctive response to this is smart aleck. Do not worry about it. I do not think everything that is being presented to you as a problem in the delivery of health care and the protection of the public in the delivery of health care is one. There are many other issues and many other reasons to regulate people, but all we care about is the delivery of health care services by providers to the public. That is what this is meant to focus on, that is what this is meant to deal with and that is what it does deal with. I do not think it is a big deal.

I know when I get up I will be pummelled by two of the nurses or something, but on the other hand, I think they recognize how far this review has gone in recognizing the legitimacy of their role in the system. It has come 100 miles.

You cannot address every little issue to everybody's satisfaction, and I believe this is a little issue.


Ms Haeck: I want to visit the dentist and denturist issue. It is before lunch, but we do not have any of the slides we have had given to us at times. The comment has been made by the dentists that denturists are really not in a position of diagnosing or of being able to assess a problem prior to the preparation of a partial plate. Would you please comment on your feelings?

Mr Schwartz: I did not follow these hearings at all. One of the few things I was told about the hearings was the slides you had to sit through, so I think I sympathize. Those slides and that argument is a major red herring. Talk about sort of emotional blackmail. Let's go back to first principles for a moment.

The dental profession has said throughout the review and continues to say: "Denturists can't do partials. It is very dangerous. If they do it, it will harm the public": Position 1 unwavering. Position 2: "By the way, those bad guys shouldn't be regulated because they're not serious about regulation and they do thousands of illegal partials." They are both compelling arguments. So the review said: "Okay, they're doing thousands and they're very dangerous. Give me three specifics. Bring me three human beings." I saw none. I suggest you probably saw none. It is a contradiction in terms.

I am not the first person to visit this issue. As you probably all know, what now must seem 100 years ago, Professor Dickens spent a year on it and came to the same conclusion I did: Let them do partials; the world will not come to an end; more choice for people and all that good stuff. But the government of the day did not go forward; it did another study because the dental group feels so strongly about it.

My first comment is there is not compelling evidence that these thousands of illegal partials that have been done have caused terrible harm. In fact, I would say there is no evidence. Now let me come to the slides. Anybody who is shown a slide of a cancerous mouth, number one, feels sick, and number two, says, "Oh, goodness, I'd better stop this." Is that not a natural reaction? Let me ask you something. What if the person with the cancerous mouth went to the same denturist for a full denture? Is it okay? If they would not notice it for the partial, I guess they would notice it when they went for the full.

These are silly arguments. These are arguments that are not to be taken seriously but are put forward seriously because these are turf battles that are honestly felt, with economic consequence. The example of this, believe me, is an example that can be carried further to many of the other turf battles you are facing. There were hundreds of such battles. You are left with the leftovers. My view, I hope, this morning was that many of them are without merit, but you can hire consultants and you can hire lobbyists to fight it to the end, because that is the system. That does not mean you should acquiesce to them, because your responsibility is to weigh it in the context of the totality of what is being done. Looking at it from those eyes in most instances in the totality of what is being done, the system will do fine without you granting these extra powers to people who want them.

The Chair: Thank you very much. With the consent of the committee -- you have had an opportunity to give us some opening remarks and you have answered questions -- as I thank you for appearing, we thought it might be helpful if you would like to say anything in summing up after almost a decade from the beginning of your work. Certainly the few hours we have had this morning do not do justice to the volumes and the rooms full of material, nor, I would say on behalf of all the committee members, to the month-long hearings we have held. I do not think anyone here would begin to suggest that all the questions could be answered in this brief session this morning.

I hope that you will feel, if there is additional information you would like to share with committee members, that you can do so in writing through our clerk. I would ask if you would like to take a few minutes if there is anything further you think the committee should hear before we adjourn.

Mr Schwartz: First, the obvious is to thank you for having me. I think it is a fact that you cannot summarize in a morning except in the broadest strokes what took place over a period of six years of exceptionally intensive thought involving these issues. In a way, when I look at you, I guess I do not envy you the task of picking up the pieces in a sense in a matter of months, particularly where the system we operate under means that what you tend to get are the outlying issues, if you will.

Having said that, all I can say this morning is that I have, throughout this, not been a health professional and frankly not cared about the status and the economic wellbeing, if you will, of those who participated. I hope when you think about it and deliberate on your report, you will take the same perspective. I also hope you will think about it as a whole and not in little bits and not try and solve little wee problems in ways that will have detrimental impacts to the whole.

The system, I believe strongly, will work. The system will benefit the people of Ontario in many ways. Tampering with it too much will ensure its failure, so I urge you not to. I urge you not to be taken in by arguments that cannot be shown to be right except by people's earnest thoughts, but to go with what you have with the knowledge that it is a flexible enough system that it will be changed over time. It will evolve much like the delivery of health care is evolving.

One of you said medical doctors see their role differently than they did a few years ago, and I think that is true and to their credit. Five years from now the system will look somewhat different than it looks today. This is a moving train, but legislation is a moment in time. Do not try to catch every single car at every station, but have faith that if you put in place an overall system that has some sense to it, it will be able to evolve with the system, because that is what it is meant to be.

The Chair: Thank you very much for appearing before the standing committee on social development. We all appreciate your taking the time to share your thoughts and insights with us. I hope all members who have witnessed before the committee and those who are here this morning will agree with me that it has been a very valuable morning for all those who have taken the time to be here to hear you.

The committee recessed at 1208.


The committee resumed at 1405.


The Chair: We have a presentation from the Ontario Native Affairs Secretariat. I would ask that you begin by introducing yourselves to the committee. Thank you very much for coming today.

Mr Krasnick: You are very welcome, Madam Chair. My name is Mark Krasnick. I am the secretary of the Ontario Native Affairs Secretariat. I am joined by Shelley Spiegel, who is a senior policy adviser with the secretariat.

I would like to begin by summarizing the question as it was relayed to me, which was that we were asked to discuss the issue of native self-government in relation to the regulation of health care professionals. That will be the subject matter of my presentation. I want to begin by referencing three different documents that have been approved by Ontario over the last six years. The first document is entitled the Ontario Native Affairs Corporate Policy, which was approved in October 1985. It talks about the policy which ministries must follow in the development of policies respecting the provision of programs and services to native people. It makes some points which I think are instructive to our discussions today.

First is that with respect to the provision of services, ministries are encouraged to provide specific services to meet the needs of native people and support the protection of their cultures. Second, to the extent that provincial programs or services apply or may continue to apply to native people, those programs and services should emphasize initiatives supportive of native self-determination and self-reliance and should be developed in consultation with native people. So the main operative aspects of the corporate policy dealt with cultural sensitivity in the development of programs by the province of Ontario.

There is another aspect to the policy which talked about the negotiation of aboriginal self-government, and that was amplified in late 1989 by the second document I want to talk about -- there will be copies of these available to the clerk -- which is the provincial self-government guidelines. Again, I think two points should be emphasized. First, one of the things that Ontario pointed out would be an objective that would guide self-government negotiations was the achievement of compatibility between aboriginal and provincial regulatory regimes. In so doing, the province was prepared to look at three different instances of self-government: One was with respect to reserve communities, the second was with respect to communities that were what we define as crown land communities and the third was with respect to urban communities, urban centres.

I think the most important aspect with respect to this discussion on self-government is really with respect to the on-reserve communities. What we say in guideline 12 is, "Ontario is willing to participate in negotiations directed towards the establishment of Indian-specific governing institutions which may exercise executive and legislative powers for the purposes of administering the reserve, regulating the behaviour of residents of the reserve and providing services to residents of the reserve." So with respect to on-reserve communities, we were prepared to look at the negotiation of and the establishment of institutions which had legislative powers.

With respect to crown land communities, we talked about bylaw-making powers and administrative powers, and we left the question of legislative powers for another day. The main point to emphasize with respect to the negotiation of specific self-government arrangements was the distinction between the urban community on the one hand and the reserve community on the other hand.

Finally, I want to talk a bit about the statement of political relationship which was entered into in August of this year. The operative principle, I think, in this case is principle 3, and this says, "First nations in Ontario," and then it says, "involving the government of Canada, where appropriate, are committed to facilitate the further articulation, the exercise and the implementation of the inherent right to self-government within the Canadian constitutional framework by respecting existing treaty relationships and by using such means as a treaty-making process, constitutional and legislative reform and agreements acceptable to the first nations and Ontario."

The statement of political relationship has at least two underlying premises, one of which is the articulation of a government-to-government relationship between first nations and the government of Ontario. But second, it is an attempt to provide jurisdictional room to allow for first nations regulation to exist. It is an agreement which is premised on dealing with self-governing nations, and the question of what is a self-governing nation is one that still has to be defined within the first nations of Ontario and within the government of Ontario.

It finally leaves us with the question of the relationship and involvement of the government of Canada where we are looking at establishing specific agreements with respect to reserves, which is always something we have to consider. Its applicability in this case, especially with respect to the legislation on midwives, is that this may be a first intrusion of provincial regulatory power into an activity which is otherwise unregulated. As such, it puts an onus on the province to ensure that the appropriate level of consultation, discussion and agreement has been reached before the legislation becomes applicable to the appropriate self-governing nations.

That, Madam Chair, is my presentation, and I would be pleased to take questions.

Mr J. Wilson: Just in response, you raised the question of midwives. Did you answer what the natives' concern was when they appeared before this committee?

Mr Krasnick: I think what I was asked to focus on in my remarks was the relationship with self-government. The answer I was going to provide is that the appropriate form of self-government is really something which will come from the first nations themselves as their process of consultation comes to an end. At this point, it is really just in midstream. So it is very hard to come up with a conclusion. They are in the process of coming up with the answers to some of these questions.

I think the important point is that self-government power, which is seen as being inherent to aboriginal people, is really a power which is relevant to self-governing nations, which are entities of probably well beyond single communities and probably the responsibility of groups of communities, whether by treaty area or by nations like the Iroquois or the Ojibway nation, etc.

Mr J. Wilson: Certainly the impression I got from the presentation of the representatives of the Union of Ontario Indians who appeared before us was that they felt, particularly in the area of midwifery, they wanted a specific answer, whether there would be any jurisdictional questions or whether traditional healers would be able to continue to practise midwifery and whether they would be required to become part of the College of Midwives of Ontario. If so, they would like a separate college, because they took Bob Rae literally on his statement when he said, "In all matters henceforth we will respect native self-government."

I certainly argued a long time that I do not know what it means exactly, and you said that they are working that out now. That was the concern I think the committee was presented with to some degree anyway, but you are saying that as far as the Native Affairs Secretariat is concerned, you would not have any comment past what you have said now, because these things are being worked out.

Mr Krasnick: These things are the subject matter of a process of consultation. I would also make the point that there is a difference between the self-governing nation, which is the subject matter of the statement of political relationship, and that is that there is an appropriate political entity that is prepared to assume the power to make these rules or to make these laws. I think what we have to wait and see from the first nations is whether they are prepared to say, "Look, here is a self-governing entity that should make that determination."

Mr J. Wilson: So for the record, from the first nations themselves, we have had no official request with respect to this particular legislation at this time that you know of through the Native Affairs Secretariat?

Mr Krasnick: Other than the brief that was presented to your committee.

Mr J. Wilson: The one brief we received.

Mr Krasnick: But there is a consultation process in place that has a deadline of this week.

Mr Beer: In going forward with this legislation and how it would relate to the native people in the province, I wonder if we could just put on the record while you are here a way of describing the present situation, because I think sometimes it is very confusing to the layperson exactly how those relationships exist. The province over the last number of years has been moving both in terms of social services and in terms of health care into different arrangements that could best be described as a kind of local government relationship with a number of the bands.

I thought I would focus on the hospital in Moose Factory, which is run by the federal government. In terms of the discussions that are ongoing and in trying to place that in a context of self-government, is it your thought that we could end up with a whole series of different relationships, where for example a hospital such as that might be run by the local native community, either on a contractual basis with the federal government and/or with the province for certain kinds of specialized services?

In terms of the actual administration of health care, the delivery of health care services, what is being discussed, or is it just that there are going to be perhaps a series of way stations along to something that might be a much more independent kind of operation?

Mr Krasnick: I think there are really a number of aspects to your question. First, there are clearly hospitals and facilities where, because of the need for upgrading the facility, the whole question of governance has come up. What has been talked about, although again it requires a consensus, as you know, of a large number of people and groups and governments, is some sort of joint management capacity. That is number one. Throughout northern Ontario, those are usually done by a series of aboriginal communities, if I can put it in those terms.

The Nishnawbe-Aski Nation, which represents 46 northern communities, has put before the Native Affairs Secretariat and the Ministry of Health a proposal for self-government in health. They have just completed a community needs assessment on the social service aspects, if I can call it that -- it is sort of broader, more health and social services -- of their communities. They are putting together a proposal to us which will look at how that sector can be governed. That would be much closer to what we have been talking about as self-government, taking over all the reins of power. So that would be for the broad community of the 46 municipalities or the 46 first nations in that area.

The third aspect, which is quite new to the discussion, is the aspect not of the service delivery but the question of regulation, which is what we are talking about today. Within the continuum of what we have been dealing with, this is quite a new type of proposal, because it raises not a question of service delivery but a question of regulation. That is why we are not as sure in terms of what the consultations will bring.


Mr Beer: May I pursue this? Using the example you mentioned, assuming that went forward and there was an agreeable solution, then health and social services, let's say, would then be run by the native people. Where would the province fit into that, both in terms of services and in terms of regulation? You have not finished the discussion, so it is hard to comment on that, but what would you envisage the province's relationship with the natives would be in that kind of scenario?

Mr Krasnick: Our hope at one end of the continuum, if we could reach it, would be a federal-provincial first nation agreement which would provide for a framework for the first nations to exercise powers over provision of the services plus a separate fiscal relationship type of agreement which would deal with the issue of how to fund these institutions as they occur. This area is particularly complicated because you have throughout the north, as you know, federal nursing stations, and you have hospitals which are federal but which are very heavily funded by provinces, and vice versa. There is not a clean sort of jurisdictional capacity which anyone exercises. It has been melded together as people made agreements over the last decades.

Therefore, what we would like to see would be legislation passed by both the federal and provincial governments which would provide for legislative room to be exercised by the Nishnawbe-Aski, and a fiscal relationship arrangement which would give them some security as to their financing. That would be the optimal. From that, all sorts of practical problems will emerge and those are the things we think we will have to have more specific agreements on. I think that is where we would like to see it going down the road.

The Chair: Mr Jackson, question?

Mr Jackson: Are you expecting that I have just one?

The Chair: You had some questions this morning of Mr Schwartz that I assumed you would want to ask the secretariat.

Mr Jackson: We have several. I am not abundantly clear about the relationship between the federal and provincial governments. My limited understanding of the way federal legislation works with native Canadians is that where the legislation is specific, jurisdiction is clear, but where there is an absence of specific legislation, the provinces have a certain degree of primacy. Where health services are provided by the federal government in general terms, the matter of regulating health professions is very clearly a provincial responsibility.

Given those sets of understandings that I have, and we may share, I am trying to determine, other than native peoples who request it, who specifically says, "This is a jurisdictional matter for the provincial government; therefore you should be dealing with that matter as opposed to waiting to be asked for it." Do you understand the nature of my question? If we sit back and just wait for the native people to come forward, they may not be aware that we are proceeding with legislation dealing with regulations if the federal government has not told us, "Now that you are proceeding in this area, you better check with native people for its impact." Because federally, the government is saying the province is in charge, and the province is saying, "Health care generally is federal; regulation is not, but we do not have to trigger it."

I established this morning that Mr Schwartz was not asked to look at it from that perspective. If that is the case, I am trying to determine if this is a case where we just did not feel it was appropriate or both jurisdictions were waiting for the other to suggest we should be.

Mr Krasnick: Let me answer from two perspectives. One is the self-government perspective. The self-government perspective with respect to the Nishnawbe-Aski, which covers the majority of communities in the north where they have put the question of self-government and health on the agenda, allows them to ask for self-governing legislation or agreements in areas such as this. Therefore, if that was the case, the legislation would be passed by both the federal and provincial governments; and if that was the case, that would have the possibility of, as you say, being specific legislation which would push out provincial authority.

They know in a sense that this issue is one of the issues that they have to consider as they are preparing their proposal on health. They have not submitted it to us, as far as I can recall. Therefore, in that instance, the question of federal and provincial responsibility is clear. It is a provincial responsibility, but they do have the capacity to ask the federal government to legislate and in that way take the province out of the legislative jurisdiction.

As I understand it, the first nations are now apprised of the initiative and are working towards providing us with their views at this point. I am not as clear on whether or not the question of provision of services on reserve under federal auspices is as straightforward as that. You may be right, but my own sense has been that there have been instances where federal doctors do not have to be regulated in Ontario to be able to practise in Ontario. So there are those types of questions as well.

Mr Jackson: Part of the basis for my question is for off-reserve treatment and services, because it is much clearer when dealing with status natives on reserve. That is a lot easier to deal with. But there are a large number of off-reserve and some non-status first nations people who still should have the right in this province, one would suspect, to have the choices for treatment according to traditional patterns, and presumably our health system, with its regulatory framework, should accommodate off-reserve concerns, because an incredibly large number of medical treatments occur off reserve in this province.

We seem to have crossed over a line as it deals with midwifery. It is to its credit that we are developing a model which will accommodate native interest within the regulatory framework for midwifery, but we are not seeing it anywhere else. I am confused because we have some initiatives created, which we now understand were done through the midwifery movement, but we are not seeing it in the other areas. Yet we can see it in terms of naturopathy and we can see it in terms of any of the psychological-based support services, especially in the north. The part that concerns me is that we are not dealing with that group who are not necessarily on reserve.

Mr Krasnick: I think it is an appropriate concern. When I started, I was talking about the corporate policy which talks about ensuring that the provision of services meets the needs of native people and supports the protection of their cultures and that the service is culturally appropriate. I think that is exactly the type of thing the process has to provide for. Those are going to be things which will have to be addressed.

It is also true that the consultation taking place through the friendship centres and through the Union of Ontario Indians and through the native women's association is the type of consultation which includes both on- and off-reserve people. In that sense they should all be covered by it.


Mr Jackson: Not to stay on this point too long, let me give you an example to demonstrate the concern. Another committee that met dealt with the issues with native children in regard to solvent abuse, which is a very serious problem in parts of this province. The incidence rates are incredibly high.

The native leadership will tell you that they are not dealing with certified professions, because they really cannot say they are providing a native program in the true sense of the word unless they have people familiar with traditional native methodologies. But it would be fair to say that there are some programs that would be operating outside of this legislation because the personnel providing them were not certified in accordance with the regulation, and yet traditional native methods would be recognized and would be followed.

Do you see the nature of my concern? These are all provincial matters, the delivery arm in some cases social services but invariably through a school system which also has some provincial jurisdiction as well. That is the area of concern I have. The one substantive native presentation we received brought this point to our attention: "Are we operating illegally or legally?" To what extent can other professionals who are not members of the native community come in and say, "Look, you can't be operating this program unless we're providing it for you"? Now we are into a jurisdictional dispute, and clearly the legislation, by its silence on these matters, does not offer the protection for native leaders who are attempting to provide the programs.

That was the nature of my concern. I think all of us are unresolved as to how we are going to overcome this in the absence of extensive consultation with native leaders on this point.

Mr Martin: I have a question somewhat along the same lines. In light of the fact that discussions are ongoing and will evolve, and the jurisdictional haziness that is out there around a lot of these questions, are we in fact on the right track re the native community, in principle anyway, attempting to advance and protect public interest, protection from unqualified providers, provision of high-quality care and then a scope for the evolution of the delivery of health services?

Having said that, how does that fall into what I consider -- because I have interacted quite a bit with the native community in the north, coming from there -- the native community's propensity to take care of its own and to come up with communal answers to individual problems that sometimes are not in need of the professional intervention that we often get into the communities that we live in? Are we in fact on the right track?

Mr Krasnick: My sense is that the legislation is on the right track because there is also the capability, as I tried to point out in my discussion of negotiating self-government, to look at self-governing arrangements which include not just on-reserve communities but also include a discussion with what we call urban centres. I think there are ways in which we can look at other culturally appropriate mechanisms or organizations or, if necessary, even amendments to legislation as we get the results of the consultation and the results of the self-government proposals that we are just starting to get in.

My sense is that what this legislation has done is started to begin a thinking in the aboriginal communities about the best way for them to proceed and to raise all these types of questions. They will over the next number of years, I think, start coming in with proposals which will come to grips with the relationship between their traditional forms of healing and the regulatory system we are putting in place.

Mr Martin: Just to follow up on that, this morning there was a fair amount of discussion around the issue of a harm clause, which has been dropped at this point, but we were encouraged this morning to bring it back in. The question is, would that impede the ability of some of the traditional healers or types of healing to happen in your communities if we were to implement that? Then, going along with that is the issue of diagnosis. My sense of the problem is that in diagnosis you want to get to the root cause of an illness. There is treatment and there is diagnosing it so that you do not have to do treatment any more.

In terms of the native population, do you have any comment on that and how we might move with that so that it might be more in line with how the native community sees illness and how they would like to treat it, how they would like to see it dealt with rather, without using those terms?

Mr Krasnick: At this point, I think what we are really coming up into is sort of a native health policy which I think will flow from some of the negotiations that are currently under way. I am not really sure on either count how that will interact with the legislation. I just do not know.

Mr Martin: Or if what you are doing now in some way is in sync with that, or would this put us out of sync?

Mr Krasnick: I am just not sure.

Mr J. Wilson: Mr Schwartz this morning indicated that this committee, notwithstanding the concerns of natives, should not hold up this legislation, and that this can be dealt with later. As a native secretariat, do you have any thoughts on what we should be doing with this legislation in particular? Clearly the natives who appeared before us would ultimately like a parallel governing structure. I would like to know where the government stands on that before we move forward with this legislation. I do not think we should leave natives out of it.

It is something that clearly was not within Mr Schwartz's review, but it has certainly come to the attention of politicians in this day and age, particularly with the government's signing of agreements with natives. This is one of the first major pieces of legislation, and I think it could do irreparable harm if we go ahead and do not at least try to work on some amendments.

I do not know whether the secretariat has any comments on exemptions from certain controlled acts. Mr Martin referred to the diagnostic act. They want a provision in the legislation for native regulation and governance particularly of aboriginal, traditional midwives. In reviewing the testimony before this committee, they certainly were looking for I think -- and I stand to be corrected -- a separate college of midwifery for natives, and raised some very legitimate concerns there.

Does anybody have any comments? I want to know where we are going with this legislation, and that is the purpose of this half-hour, I think. Maybe the parliamentary assistant could fill us in on what the government's intentions are in this area.

Mr Wessenger: I understand there is a consultation process now going on with respect to this whole matter. Certainly it is my understanding that this legislation will be proceeded with, and when the consultation is completed with the native peoples, I think that is the appropriate time to look at whether there are amendments required or whether it is to be dealt with under regulations. Certainly with the whole question of midwifery, we have not even got to the stage of looking at the regulatory framework. I think certainly there is quite an opportunity for this matter of midwifery to be looked at at the time, time for consultation to occur and time for input with respect to that whole regulatory framework.


Mr J. Wilson: But this issue is, I think, far too important once again to be left up to the advisory council. We are giving this advisory council just enormous responsibilities and tasks. Is the government contemplating bringing in legislation so that legislators will have an opportunity, or is this all going to be handled through the regulatory framework?

Mr Wessenger: No, I do not think we are saying this will be a matter for the advisory council to deal with. I think we are saying it is a matter for the government to deal with once the consultation process is complete.

Mrs McLeod: I am going to try to paraphrase what I thought I heard Mr Schwartz say at the committee this morning, which was that the question of special concerns of first nations had not been dealt with in the Health Professions Legislation Review, that it was his sense that as the discussions of self-determination proceeded on a step-by-step basis, if the first nations opted out of the regulatory system and opted for a different regulatory system, that was clearly possible. Then this legislation would essentially be less than relevant for them. If they opted in, or if there were differences between what some bands or nations chose versus others, there would be an opportunity to change this legislation fairly readily to adapt to concerns of those bands or nations that chose to be regulated under this act.

If I have paraphrased that correctly, it would suggest that we could move ahead with the legislation without an injustice to the self-determination and self-government discussions that are going on. I wonder if you could say whether or not that position would raise immediate concerns in terms of its impact on either the first nations or the discussions you are having right now.

Mr Krasnick: No, my sense would be that they would understand the context in which this legislation was being brought forward, that there was a capacity in the province to amend the legislation or enter into self-government agreements which would deal with services, or for the federal government for that matter, in implementing an area or a type of self-government agreement, to also legislate in that regard. So with respect to self-determination, I think they would feel they are still looking at their potential ways of doing it.

The other question then is that one of the things they are thinking about is where this would fit within their self-government priorities. I think their priorities to date have been more around the question of access to lands and resources, in terms of the provision of services per se, as opposed to the regulatory side. So I think they would understand the initiative.

Mr J. Wilson: Just to comment on that, I am the former assistant to the federal Minister of Health. We negotiated a number of agreements over time and the last agreements we could not get were with Yukon and native people and bands in British Columbia. Exactly their number one priority out there at that time seemed to be to get self-governance in health care. I cannot see that native people in Ontario would be any further behind in those. You are telling me that this has not been a big priority to date with them?

Mr Krasnick: On the regulatory side, no, the priority has been around --

Mr J. Wilson: Lands and land claims?

Mr Krasnick: And services. No disagreement that health is not a big priority, but it has really been around the provision of services of a standard that is equal to that provided to other residents of the province. That is where the priority has been, and I think that may reflect the interest to date in this legislation.

The Chair: I would like to just pose a question and ask if it has been considered, either for this legislation or for other pieces of legislation, as an interim method, and that would be the concept of the ability to contract out. I know there are some pieces of legislation where parties can agree to contract out of the legislation.

Mr Krasnick: There is in the Child and Family Services Act a provision which provides for the Lieutenant Governor in Council to make regulations which would change the operation of the child welfare provisions that deal with specific aboriginal institutions or regulations. So there is a parallel that one could look at which would possibly --

The Chair: If such an amendment were brought forward to permit that in the context of this legislation, do you believe it would facilitate the negotiation and the discussions that are going on, or do you think it would not have any effect or would hamper the discussions?

Mr Krasnick: I think it would clearly signal that the government was open to different regional regimes. In that sense, it is positive. I would say that what the Minister of Community and Social Services has found with that provision is that unless you are specific as to whom it is going to apply to, a number of groups define for themselves that they should be able to opt out of legislation. I think it would have to be crafted to learn from the experience that Comsoc has been through, to make sure that you know that it is appropriate to self-governing bodies or entities that could take advantage of this in consultation with the province.

The Chair: Have you been giving any advice on that kind of a proposal through the discussions of this legislation?

Mr Krasnick: It may be a lame excuse, but to date, we have put our faith in the consultation process. Because of the diversity between both urban and non-urban and northern and southern, we just want to see what comes in first. At that point, we feel our role may be more appropriate to start providing that advice then.

The Chair: We appreciate your coming before the committee today. Thank you very much for your presentation and also for answering the questions that committee members have put to you.


The Chair: For the information of committee members, we have a full day scheduled for tomorrow, although you do not have that on your agenda yet. Because of the previous agreement to adjourn tomorrow at 3 o'clock, the suggestion is that in order to have sufficient time for discussions with the ministry, we shorten the lunch break and reconvene at 1 o'clock. So we would adjourn from 12 until 1 and then continue our discussions until 3. That is one option. The other option is to continue right through with just a couple of 15-minute breaks and see if we can get some sandwiches or something so that we actually do not have a lunch break tomorrow.

We are scheduled to start tomorrow morning at 10 o'clock and the schedule is quite full. We have for the rest of the afternoon an opportunity to debate some of the issues, question ministry officials -- the Ministry of Health is here -- and I would seek advice from the committee as to how you would like to proceed, both for the rest of today and tomorrow.

Mr Jackson: Could you or the clerk briefly advise us of what ministries are coming and in what order. I do not want to know how much time is devoted to each -- I am comfortable with your judgement in those matters -- but just who is coming and whether all invited ministries were able to attend. That is all.

Clerk of the Committee: Linda, you have a couple of outstanding matters, I understand.

Ms Bohnen: Yes. First, I can tell you who is coming tomorrow and at what time. At 10 o'clock is the Ministry of Community and Social Services; at 10:30, the Workers' Compensation Board; at 11, the Ministry of Education. The others which were requested, further to your request, were ONAS, which we have just heard from of course, and the Ministry of the Attorney General, which has declined the invitation. The clerk has their letter in response to the minister's letter, and perhaps it could be read into the record if you wish.

Clerk of the Committee: I have it in my office. I can read it into the record tomorrow morning or bring you a copy.

Ms Bohnen: The Ministry of Citizenship Office for Disability Issues has given no response as yet. I do not think we have a final response from the Ontario women's directorate either. We are a little uncertain whether they declined. Perhaps they have not confirmed that they have declined.

Mr Jackson: The language in these matters is most important, I appreciate.

Ms Bohnen: So what is scheduled is what I told you tomorrow.

Mr Jackson: What about seniors? They were the key ones I was interested in.

Ms Bohnen: I think seniors slipped through the cracks. We can get back to the Office for Seniors' Issues at the Ministry of Citizenship.


Mr Jackson: I was just going to say, as you know, it is not really a ministry. It is a secretariat with a couple of desks. Well, it is true. But we have not got a confirmation of Citizenship for disabled.

Ms Bohnen: My sense is that the issue for the disabled office within Citizenship was the attendant care issue. It is my understanding that because this issue had been dealt primarily with the Ministry of Community and Social Services, it was their view that the Ministry of Correctional Services presentation was most appropriate and that they had really nothing to add to that.

Mr Jackson: I have a concern with that, because we were trying to make the distinction between points raised and the position of the various ministries in these capacities. There is a world of difference between Comsoc as a ministry and the Office for Disability Issues, which has a partial advocacy component to it. In fact the advocate for the disabled, that whole committee of advocacy, is managed through that ministry. So our access to the advocacy group was through the ministry. Had we known that we were going to get this response, it would have been in the committee's best interests to call forward a representative of the advocacy group or the advisory council on seniors' issues or the advisory council for disability issues so that they could give us some form of a reaction to the legislation.

Mr J. Wilson: The Ministry of the Attorney General declined. Did they give us a reason for that?

The Chair: Yes, there is a letter that will be circulated tomorrow morning.

Mr J. Wilson: Does anybody know what the gist of the response was, just for the record?

The Chair: She is going to get the letter now.

Ms Haeck: Mr Hope was asking me why we were ending at 3 o'clock tomorrow and I have to admit the two of us are not sure, so could we get some clarification on that?

The Chair: It is out of respect for the beginning of the high holidays tomorrow evening, and in order to prepare to be in synagogue. Both myself and another person participating in these committee hearings have to leave by 3 o'clock.

Mr Jackson: We could not get along without either of you.

The Chair: On the other question that I asked regarding how we would like to proceed tomorrow, is there a consensus that we will adjourn for lunch from 12 until 1? Agreed. The hearings in the morning will be from 10 until 12 and then from 1 until 3.

Mr Burrows has some information for members of the committee.

Mr Burrows: The committee might appreciate what is kind of a status report on other questions. I would like to reiterate in relation to the last item that invitations were extended to all of the ministries for which questions were raised and we were asked to arrange. Unfortunately, we cannot control the responses. As you know, there is no obligation for the ministries to appear. We still have not heard from one in particular at all, and another is unclear at this point. Hopefully, by tomorrow we will have definitive information from those two.

With respect to the other questions that were raised, we have a list. I would like to go through that list and give you a status report. It should not take more than a couple of minutes. Is that acceptable?

The Chair: With agreement? Yes, please continue.

Mr Burrows: These are under general headings and, Linda, please help me if I have forgotten a specific issue. There were a couple of items related to long-term care, dental hygiene and chiropody-podiatry. It is our understanding that the representative from the Ministry of Community and Social Services tomorrow will address those issues.

There were two items related to the provision of hearing aids. One was a request for information from the assistive devices program on access and monitoring, and in particular, more recent data with respect to access. There was also a question related to comparative costs for audiometric services. We will have for the committee tomorrow -- I sincerely hope tomorrow -- information of that nature. We have some of it. Unfortunately, some of the data, due to vacations and so forth, has been slow in coming forward. Also, it would appear that some kinds of data simply do not exist. However, we will certainly share with the committee what we have, and it is being put together as we speak. Hopefully, we will be ready for tomorrow morning.

There is information with respect to the provision of nursing. A question was asked related to standing orders: Does the ministry follow up on standing orders and retroactivity of standing orders? We have a package that we are tabling with the clerk this afternoon which covers, we believe, the answers to that question.

There was an additional written question related to comparison of licensing versus registration. Subsequent to the question being asked, it is our opinion that Linda responded. However, in questions and answers, if you would like us to elaborate upon that, we can.

There was a question related to the profession of chiropractic and the Workers' Compensation Board. In the written package that we are giving to the clerk this afternoon, there is factual information which we have put together with the assistance of the Workers' Compensation Board. Also, we expect that a representative from the Ministry of Labour will be here tomorrow to address any questions related to WCB policy.

There was a question related to the role of social workers under the Child and Family Services Act. We are responding to that in writing today. That is part of the package we are tabling this afternoon.

There was a request for consideration of the relationship of an exemption for acupuncture and concerns about the transmission of disease. I am going to report verbally on that right now. We have talked to the public health area of the Ministry of Health and we have been advised that in their opinion no legislative change is required to public health legislation to enable them to enforce standards of aseptic technique or to prevent the transmission of disease. In fact they believe this can be accomplished under existing legislation. So I am reporting that back now.

There was also a request related to the experience of other provinces with respect to the self-regulation of nurses, and in particular, of practical nurses or registered nursing assistants. We are responding to that in writing. It is part of the package that we are tabling with the clerk this afternoon.

There was a question from the Ontario Pharmacists' Association related to the exemption for hospital pharmacists. I believe the committee's suggestion was that perhaps that question would be directed to Mr Schwartz. Unfortunately, I think we ran out of time this morning. I did not hear that question being asked.

Lastly on our list of questions to respond to there was a question about comparing or at least elaborating upon which other health legislation -- and I believe it was Ms Haeck who raised the question -- that we have referred to so many times governs what health professionals may do in certain practice sites. That is being written. It is not part of the package we are tabling today. We hope it may be ready tomorrow. If it is not, we will certainly table it with the committee before clause-by-clause, no later than next week of course. We believe that list is exhaustive. Thank you.

The Chair: Comments or questions? Mr Wilson.

Mr J. Wilson: I do not have a comment specifically dealing with that list, other than to say I think it was exhaustive and comprehensive and well done. Would you entertain another question, though, that I have?

The Chair: Yes.


Mr J. Wilson: I have a general question that came up in my riding the other day to deal with the controlled act of putting or probing below the dermis? What is the term? The legislative counsel knows.

Mr Jackson: Subcutaneous procedure.

Mr J. Wilson: Yes. I do not have the act with me. Sorry about that. The question came up that in a particular doctor's office, the receptionist was acting as a nurse and performing injections by needle and that there really was not any remedy under the current laws in Ontario to do anything about this. I understand how the proposed act we are dealing with deals with that as a controlled act, but what is the current status of that?

Mr Wessenger: I will ask ministry staff to reply to that.

Ms Bohnen: Under the Health Disciplines Act, medical acts can be delegated to non-medical people, including receptionists in physicians' offices, I suppose. You will see that one of the documents attached to the material given to you today is a publication from the College of Physicians and Surgeons of Ontario dealing with what they call sanctioned medical acts. Sorry, now they call them delegated medical acts.

That includes a comprehensive list of what may be delegated in institutional settings, but it also specifically addresses the skills or qualifications of persons performing medical acts in the office setting. It does not list those, but it simply says that this idea of a physician in his office delegating to his or her whatever -- receptionist, I guess -- poses little difficulty, because the physician employs the person, knows his or her qualifications and there is an established working relationship. I think that the CPSO's view is that it was the responsibility of that physician who employed the receptionist to ensure that she was properly trained in the giving of the injections. So I do not believe, just from what you have told me, that it is unlawful.

Mr J. Wilson: Yes, that was my understanding upon investigation also, that there really was not anything to do about it. It really was not unlawful. Just in the context of our proposed legislation here, we are clearing that up, are we not? A controlled act will be --

Ms Bohnen: Under the Health Disciplines Act, in order for an act to be delegable, there is supposed to be a regulation under the Health Disciplines Act, and there is not. The legislation before you is clear that any controlled act, such as giving injections, may be delegated unless there is a regulation saying no, you cannot. So I think it is clear under the proposed legislation.

Mr J. Wilson: It is clear --

Ms Bohnen: Clearer. It will be clearer in the future that a controlled act may be delegated.

Mr J. Wilson: So if you wanted to prohibit those other than qualified nurses in a doctor's office, prohibit the receptionist from giving needles you would have to go to the advisory committee and ask for regulations?

Ms Bohnen: No. You would do two things. First, you would go to the College of Physicians and Surgeons and say to the council of that college, "We think you should make a regulation restricting or prohibiting this," or if you are a patient or whoever, I think you would make a complaint to the college about the physician who permitted this and, through the complaint and discipline process, induce the college to say that it is not in accordance with the proper standards of medical practice for a physician to permit his receptionist to do this. You would get an articulation of the standard, without of course judging -- I am not in a position to say whether it is a good or bad thing to have people doing that.

Mr J. Wilson: It seems to be in the past few years that physicians are cutting down costs in their offices by not having to have as many nursing staff. I will say that for the public record. There seems to be a trend out there that I am clearly worried about, but thank you for your response.

Ms Bohnen: If I could just add -- though remember, Mr Wilson, that you have also heard from people concerned about attendant care -- that it is sometimes in the public interest to have non-professional people providing injections.

Mr J. Wilson: It is a very good point. Thank you.

The Chair: There is an opportunity now, and I will entertain the speakers' list if there are any issues that we would like to discuss now with ministry staff. Before we do that, we have just received a letter that was referred to from the Attorney General. Everyone is getting a copy of it, but for the record, I will read it into the record if you wish. This is dated September 12, 1991 and addressed to the Minister of Health.

"Dear Ms Lankin:

"I am responding to your letter of September 10, 1991 extending an invitation to provide a representative of this ministry to the standing committee on social development on September 16 and 17.

"I am advised that law officers of the civil division of this ministry, seconded to the Ministry of Health, will be in attendance at the proceedings of the committee on those days. I have full confidence in their ability to address the relevant legal issues and answer any questions of the committee.

"I am pleased to be able to assist the committee in this fashion.

"Yours very truly,



Mr J. Wilson: Clear.

The Chair: Ms Haeck is first on the list to raise issues for discussion. What I am going to do now, which is different from the process when we have had witnesses, is to entertain the speakers' list in order of who signifies they would like to speak. However, if one caucus tends to dominate, I will alternate through the caucuses to ensure that everyone has an opportunity.

Mr Hope: Just don't intimidate anybody from asking questions.

The Chair: I never. I always encourage people to ask questions, Mr Hope. After six weeks with us on this committee, you should be the first one to acknowledge that, I would think.

Mr J. Wilson: The fun has just begun.

The Chair: As long as you do not lose your sense of humour. Ms Haeck, please begin.

Ms Haeck: We have not lost it. In light of some of your earlier comments, it was most appreciated. Score 10. However, beyond that --

Mr J. Wilson: How has the score been run up?

Ms Haeck: They just do not know how well we have worn on each other. Anyhow, I would like to ask a question of legal counsel, through the parliamentary assistant. There is still some confusion, I think -- "concern" is probably a better word -- on the part of people presenting about the whole issue of the communication of the assessment diagnosis and there is this feeling of obstacles being put in the path of patients, having to run to various practitioners in order to get a full outline of what in fact may be the situation with their particular disease, disorder or dysfunction. I was wondering at this point in all of our discussions how to assure people that this is really not the intent.

Mr Wessenger: I will refer that to the ministry staff, but I think Mr Schwartz this morning certainly gave a clear indication of his position with respect to the legislation, being a lawyer and the creator of the legislation. I thought it was quite a satisfactory answer but I will refer it for more comments by ministry staff.

Ms Bohnen: I think one of Mr Schwartz's comments in particular that was useful was that, because of the nature of this beast, you cannot prove to people that their fears are not real fears. It is not like disproving a statement of scientific fact. It is not something really susceptible of proof or disproof except by experience. I think one of the things he said was that he did not think it would take very long, in actually living with this legislation once it is passed, for them to be much more comfortable with the fact that what successive governments and the ministry have been saying all along is, "You don't have anything to be concerned about." Other than that, they have not accepted what has been said so far, so maybe it just is that experience will have to be the teacher.

Ms Haeck: I appreciate that. We had further discussion of this at lunch and realized that it is still very much a concern uppermost in people's minds, to call on your X years of experience with this to reassure myself and the people who may be in the audience and other people who have presented to us that really that is not the intent and to clarify that any more if we possible can.

The Chair: Good idea. Could I suggest that ministry officials take these microphones at the other end of the table and that we could try turning on the air-conditioning and see if Hansard can pick everything up? It is very warm in here. Can we try that out and see if it will work? Then you will have two microphones available.

Mr Wessenger: Then you will not have to put all the questions through me.

The Chair: The intention was to allow for questioning of the ministry staff. Any questions from any of the caucuses, any members of the committee?

Mr Cordiano: Just to say simply that staff has been pretty thorough in its analysis. I think we have covered just about all the concerns. Despite the fact that I was not here this morning, I understand it went very well. Most of our questions were deliberated on, any of the concerns that we had for Mr Schwartz were addressed, and I think the areas that you spoke about this afternoon where we had various concerns were touched on quite adequately. I believe we are ready for clause-by-clause, Madam Chair.

The Chair: We will have an opportunity tomorrow to have additional questions answered. Just for the information of committee members, I would also point out that our researcher Alison has told us that she will have another interim report available for us as soon as possible. But there are still briefs coming in and, with the postal strike, the decision has been taken on your behalf to continue receiving those briefs, so we will not have the final report until we are about ready to start clause-by-clause. Alison, did you want to say anything on that?

Ms Drummond: No. I really do not have anything to add to that, but I hope to have the second interim summary of submissions ready tomorrow. I am hoping tomorrow, certainly the next day.

The Chair: The clerk has informed that, because of the postal strike, we extended the date for inclusion in the overall report until September 4. Anything received after September 4 up until this Friday will be circulated among all the members and will be kept as an exhibit that came in after the deadline and will of course be available. That is just for the information of all members of committee.

Mr Wessenger, you had a comment?

Mr Wessenger: I would like to compliment ministry staff. The fact that they are not be grilled with additional questions I think shows the amount of work and dedication they have put into this legislation and how competently they have advised committee during the hearings. I would just like to thank them for their assistance and, I am sure, their continued assistance in seeing this legislation through to finish. I would also like to thank, of course, all the committee members for their contribution and the Chairperson for all the assistance she has given me and I am sure will continue to give me.

The Chair: That being said, I would thank the parliamentary assistant personally as well as on behalf of all the members of the committee. I think we all found both the public hearings and the support from ministry officials to be very worth while in helping to have a much greater understanding of this legislation.

We will meet again tomorrow for the day to hear from other ministries, and I know that our Ministry of Health officials will be here at that time, in case anyone does think of anything over the course of tomorrow.

The committee adjourned at 1513.