ADVOCACY ACT, 1991 AND COMPANION LEGISLATION / LOI DE 1991 SUR L'INTERVENTION ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
MINISTRY OF HEALTH
Tuesday 10 December 1991
Advocacy Act, 1991, Bill 74, and companion legislation / Loi de 1991 sur l'intervention, projet de loi 74, et les projets de loi qui l'accompagnent
Ministry of Health
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: Cooper, Mike (Kitchener-Wilmot NDP)
Vice-Chair: Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
Carter, Jenny (Peterborough NDP)
Chiarelli, Robert (Ottawa West L)
Fletcher, Derek (Guelph NDP)
Harnick, Charles (Willowdale PC)
Mathyssen, Irene (Middlesex NDP)
Mills, Gordon (Durham East NDP)
Poirier, Jean (Prescott and Russell L)
Sorbara, Gregory S. (York Centre L)
Winninger, David (London South NDP)
Malkowski, Gary (York East NDP) for Mrs Mathyssen
Sullivan, Barbara (Halton Centre L) for Mr Sorbara
Wessenger, Paul (Simcoe Centre NDP) for Mr Mills
Clerk: Freedman, Lisa
The committee met at 1543 in room 151.
ADVOCACY ACT, 1991 AND COMPANION LEGISLATION / LOI DE 1991 SUR L'INTERVENTION ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
Consideration of Bill 7, An Act to amend the Powers of Attorney Act; Bill 8, An Act respecting Natural Death; Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons / Projet de loi 74, Loi concernant la prestation de services d'intervenants en faveur des personnes vulnérables; Bill 108, An Act to provide for the making of Decisions on behalf of Adults concerning the Management of their Property and concerning their Personal Care / Projet de loi 108, Loi prévoyant la prise de décisions au nom d'adultes en ce qui concerne la gestion de leurs biens et le soin de leur personne; Bill 109, An Act respecting Consent to Treatment / Projet de loi 109, Loi concernant le consentement au traitement; and Bill 110, An Act to amend certain Statutes of Ontario consequent upon the enactment of the Consent to Treatment Act, 1991 and the Substitute Decisions Act, 1991 / Projet de loi 110, Loi modifiant certaines lois de l'Ontario par suite de l'adoption de la Loi de 1991 sur le consentement au traitement et de la Loi de 1991 sur la prise de décisions au nom d'autrui.
The Chair: I call this meeting of the standing committee on administration of justice to order. Pursuant to standing order 123, the clerk has received designation from the Progressive Conservatives that there will be a subcommittee meeting immediately following this meeting.
MINISTRY OF HEALTH
The Chair: Today we will proceed with Bill 109, the Consent to Treatment Act. We have the Honourable Minister of Health here to give a presentation. We will have a briefing and then follow with questions and answers. Would the minister proceed, please?
Hon Ms Lankin: The task ahead of you is a challenging one. Certainly we are very interested in the responses you will hear from the public with respect to this piece of legislation, as well as how it relates to the other pieces of legislation in front of you. There is no doubt that there will be much for you to deal with in all the legislation. The way the bills relate to each other I think will be a complicated but important challenge because we see what we hope will be the passage of these bills down the road as being a historic event bringing about the connection of advocacy, consent to treatment and substitute decision-making.
The consultations that have taken place between the ministries and among interest groups have helped us shape these pieces of legislation. We think we have covered all the bases but it remains for you to take up the discussion and examine the detail of these bills. I want to say at the outset that concerns have been raised, particularly with respect to Bill 109, about some of the inadvertent effects perhaps. There has been some media coverage. We have taken some time to try and talk to people again about those issues that have been raised. As I make my remarks, I hope to indicate areas where we think there is some easy resolution, and areas where we think you as a committee could be very helpful in looking at amendments and clarifications in the legislation to ensure the intent of the bill is carried out.
The goal of this legislation is clearly to establish the right of each person in Ontario to make his or her own decisions about health treatment. The act also provides a way to make decisions for those who, at the time health treatment is required, are not capable of giving consent. That can be for a variety of reasons: unconsciousness, shock, the effects of drugs or debilitating disease. Those are all examples.
We believe there is a need for this legislation. Currently the Mental Health Act and some of the regulations under the Public Hospitals Act include some rules on consent for patients in hospitals but, unfortunately, these two acts are not consistent. Ontario has currently no consent legislation that applies to other settings like services delivered in nursing homes or doctors' offices, clinics or private homes, where much of our health care delivery is done -- in fact, probably an increasing amount in the future. Further, the laws that exist do not clearly entitle family members to give a substitute consent for a mentally incapable adult patient outside a hospital setting.
With more and more care being delivered in community settings, as I indicated, we need legislation that will ensure all Ontarians, no matter where they receive care -- and these are key things -- have the same right to be informed, the right to make their own health care decisions and, if mentally incapable, the right to have someone make decisions on their behalf.
In developing the proposed consent to treatment legislation the ministry sent a consultation paper to more than 150 consumer and provider groups. They responded with about 60 briefs and submissions. In an outreach effort to interest groups, ministry staff also undertook about 30 speaking engagements to talk about the legislation and answer questions. As I have indicated, since introduction of the bills we have done further consultation around some of the points of controversy and questions that have been raised to try and get guidance from interested parties out there about what might be resolutions or clarifications to some of those questions.
In general, we found broad support for the principles of consent to treatment embodied in the legislation. The legislation and the premise for this begins from the common-law rules of consent, the rights and obligations that have already been tested and affirmed in court decisions, and used those common-law rules to build a standard set of rules to guide day-to-day practice. There is an obvious question: If these rights and obligations are already part of common law, why do we need to develop the legislation?
Again, we believe there is a very good reason. When the ministry listened to what consumers and providers had to say, it was very clear that the common-law rules on consent are often ignored -- perhaps not known. Certainly they are not in everyday, common practice in many health care encounters that patients have. Probably it also can be said that the common-law rules are difficult to understand and difficult to interpret, vague and not clearly set out. With the Consent to Treatment Act, rules, rights and responsibilities will be clear and available to everyone. That is certainly our goal and the committee work will help us achieve that goal.
Over time, I believe this legislation will not only encourage health service consumers to exercise their rights, it will improve everyone's ability to make decisions about the type of treatment they receive. I just want to take a moment to say I really believe this is important in terms of the future of delivery of health care services in this province. We have a situation in which the relationship between patients and health care providers is often not a balanced relationship. There is a lot of mystique about health professions and the delivery of those services.
As patients and consumers of those services we often do not inform ourselves to the fullest in terms of the implications for health, or the choices or alternatives we may have. I think this is part of the shift required in the health care system, for all of us to take greater responsibility for informed decision-making about health care services.
I understand the committee will also be hearing from Mr Sterling next week and, as I have said before, we greatly appreciate Mr Sterling's contribution of highlighting the importance of living will legislation. We believe the three government bills we are introducing will cover and safeguard those situations and much more than what is attempted in Bill 7 and Bill 8. I think it is appropriate that Mr Sterling will have an opportunity to comment on these areas and he has done a lot of work over a number of years in bringing forward these principles. We agree with the principles he is trying to achieve and we think the legislation will accomplish that.
A power of attorney for personal care includes the type of instructions people now give in the case of a terminal illness in a living will, as is being suggested, but it goes far beyond that to deal with the care and treatment we want at all stages of our lives. It ensures that anyone placed in the role of making decisions about medical care for another will be able to act according to that person's wishes. Even if it is not in a terminal, living will situation, being able to give that kind of advance directive about the way you would like health care and treatment decisions to be made, if you are incapable at that particular moment of giving those directions yourself, gives us that sense again of being able to control our treatment and the decision-making about our treatment.
The ultimate intent of this legislation is to ensure that all who are able to give consent have the information they need to do so, and to ensure that those not able to decide for themselves receive the type of care and treatment they would have chosen if they had been able to at that time.
We recognize that for the legislation to be effective we are going to have to inform people about rights and responsibilities and we are committed to undertaking that task.
Before we proceed further, I want to comment on some of the main points in the proposed Consent to Treatment Act. In a few cases, which I will indicate shortly, I am particularly interested in having a thorough airing of the issues as it goes through committee stage and I hope we can find the appropriate balance on some of these complex matters. As I have indicated in another committee situation with respect to the Regulated Health Professions Act, sometimes the complicated balances that need to be struck can truly be arrived at by commonsense consensus from a group like this hearing from all the affected parties. I am quite willing, where that kind of airing and exploration of the issues is done, to try and make the appropriate amendments. I want the committee to be assured that not only am I willing to make those kind of amendments where they are appropriate and where we can get the correct balance struck, but I am actually seeking your assistance in some areas that I will highlight for you.
First of all, the proposed consent to treatment legislation codifies the common law for all Ontarians, so that what was in common law now becomes statute and they can be fully informed and decide to accept or reject a health service.
In the June 1991 Ontario Court of Appeal decision in the case of Reid and Gallagher, Mr Justice Robins summarized the principle of informed consent, and I quote:
"The right to determine what shall, or shall not, be done with one's own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law. This right underlies the doctrine of informed consent. With very limited exceptions, every person's body is considered inviolate and, accordingly, every competent adult has the right to be free from unwanted medical treatment. The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self-determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the doctor, who ultimately must decide if treatment -- any treatment -- is to be administered."
Clearly, that is an important last statement, that it is the patient who ultimately must decide -- not the practitioner or the doctor -- if the treatment is to be administered.
To provide safeguards for people who have been assessed to be mentally incapable of making those decisions and giving informed consent, under the Consent to Treatment Act they can meet with an advocate who will explain the implications of the incapacity finding. The advocate will also discuss the person's right to have a finding reviewed.
There has been feedback on this, and I think there is need to clarify that for the purposes of the Consent to Treatment Act, the advocacy will be a narrow rights-information function. It is not a broad advocacy function, which is the main mandate of the Advocacy Commission and the other piece of legislation you are dealing with. Here we are talking about rights information and advocacy in that narrow sense. That certainly has always been the intent of the Consent to Treatment Act.
People will also have the right to request a hearing before the Consent and Capacity Review Board, a formal independent tribunal that will be established under the act. They can also ask the advocate for help with this process. Board decisions can be appealed to a court.
Some people are concerned that the process of assessing people, deeming them incapable and arranging the meeting with an advocate will cause unreasonable delays and may keep people from getting treatment they need. I know there are a number of health care professionals and hospital administrators who have raised those concerns.
Let's deal first of all with the most obvious of situations that people would have concerns about, that is, the situation of emergency treatment being required. The consent-to-treatment legislation does take emergency situations into account. If a health care provider believes a person will suffer serious bodily harm if treatment is delayed, the provider can give treatment without consent. But even in emergency situations, the health practitioner must respect the right of the patient to medical self-determination. Giving treatment is not permitted if the health provider knows the person would refuse it when mentally capable, if the individual had given advance directives or if this is a medical practitioner who has a history of this patient or has the patient's indication somehow clearly and appropriately conveyed to him.
Let me say at this point that there is still some debate about how we define an "emergency." I think that is important and that should be talked through here through the committee stage. I would welcome suggestions on improving and clarifying. When we go through the briefing, perhaps Gilbert can elaborate on that, but the question of whether or not "emergency" should be defined only if the health care provider believes the person will suffer serious bodily harm -- what about prolonged and serious pain the person may be suffering? There are perhaps some other definers that might be a better clarification. We can talk about that as we go through, but it is an area that I think the committee will hear about and should take a look at.
Also, based on responses from various interest groups, both consumers and providers, I am recommending some changes to the emergency provisions and will certainly be interested in receiving further input through the committee hearings. It has been pointed out that a number of serious health risks would not materialize within 12 hours and that therefore the 12-hour time frame that is contained in the legislation now should be deleted.
The urgency aspect is sufficiently conveyed by the need to act "promptly," so I would certainly be looking to make that kind of amendment. As I mentioned, I think as you go through hearings you will hear from people on that.
Also, as I was indicating, we have come to the conclusion that treatment necessary to alleviate severe pain should be permitted by the emergency treatment provisions, so we will be looking for clarifying wording on that.
We would also like to clarify that emergency treatment will not be discontinued in those exceptional cases where no substitute decision-maker is available within the 72-hour time period stated in the act. As has been brought to our attention, we could have a case of someone perhaps in a remote area being serviced on an emergency basis with no opportunity to contact and to receive some information from a substitute decision-maker within that time frame. Perhaps this is life-sustaining treatment that is being offered. Should that be cut off at 72 hours? We think it needs to be clarified that this would not be the intent. We have to have a bit more flexibility around that.
There is some concern that even in non-emergency situations, requiring meetings with advocates will cause unreasonable delays and unnecessary treatment delays. There are the hospitals' concerns about backlogs. There are doctors concerned about people coming for appointments and that perhaps they cannot carry out the medical treatment within the time that has been scheduled. Does that mean a lost appointment and the person coming back? What kind of delays might we be facing if a person is deemed to be incapable and that requires a meeting with an advocate?
Again, let me be clear here that I would welcome discussion on ways to streamline the process. But bottom line, we still want to provide the appropriate safeguards and protections. We think it is possible that an alternate approach would still protect the person's rights but not impede health care, and we are open to considering alternatives.
One example that has been suggested to us is that once a person has received the rights information, repeated meetings with an advocate may not always be required. Some people may also be concerned that the review board hearings could cause unnecessary delays. Here we have reason to believe, based on past experience, that there is only a small percentage of people who will challenge their assessment and ask for a hearing.
Based on our experience to date with the Mental Health Act, which has similar provisions, we can let you know that of 54,000 admissions in 1990 to psychiatric facilities, where rights adviser programs have of course been in place for the past six years, there were only 78 review board hearings on findings of incapacity. So it has not been our experience that there is a great move to challenge this finding, but we believe that to sustain the right to challenge a process is important.
As you will hear during the Attorney General's presentation, people with mental incapacity can be assessed under the Substitute Decisions Act and a substitute decision-maker can be appointed to make personal care decisions on their behalf whenever the need arises. In that situation, the problem is taken care of already because there is a substitute decision-maker there and people like health care practitioners will simply refer treatment decisions to the guardian. There will be no need to reassess mental capacity to give consent each time the person needs health care.
Another concern that has been raised is the potential cost of the advocacy requirements of the Consent to Treatment Act. Again, looking at our experience with rights advisers in psychiatric facilities and their duties, informing patients of their rights when they are found to be mentally incapable does not appear to us to be expensive. We would be building on something that is already being done in the psychiatric hospital setting at this point in time. We think that although these are difficult economic times, this would be using resources wisely. There is a base program there already. We do have experience with this.
Recruiting and training people to fulfil the role will be the responsibility of the Advocacy Commission, and certainly this kind of rights advice will represent only a small part of the commission's broad advocacy role. That was the point I made earlier, that we see the role of the advocate under this legislation as a narrow advocacy right: rights advice, rights information.
There is one other point about the Consent to Treatment Act that I would like to make, one that I think the committee will hear substantial response from people on. Under the act at this point, the recommendation is that people aged 16 and older are presumed to have the mental capacity to make their own treatment decisions. However, age 16 is only a reference point in that situation. The intent of the act is to ensure that those who are capable of giving consent have the right to do so, including those who are under the age of 16. However, it has been clear in discussions I have had with groups that there will be public health officials, as one example, who will be concerned that some young people will be prevented from seeking advice about birth control or sexually transmitted diseases or other health services, and these are now legally provided to mentally capable young people on the basis of common law consent right.
It is not the intent of this new legislation to impede in any way a young person's access to health care. The act allows health care providers to assess the individual situation and make a determination that a person who may be under the age of 16 is mentally capable of making certain treatment decisions with respect to the treatment being discussed and recommended.
The government recognizes that on this issue there are several points of view, and I want to ensure that all the options are fully examined by the committee. There are differing points of view out there that we are continuing to hear. Some people would prefer to have no reference to age in relation to mental capacity, just to allow the common law situation to exist and to rule, and to evolve or be tested as well. Others have indicated that they have a preference for an age. Some have agreed with 16; some have said the age should be 14; some have said it should be 12. Those reference points, with the ability to determine someone younger as being capable, vary in people's opinion, so I think you will hear about this issue.
I want to emphasize that it was never the intent of the legislation to see very, very young people making their own treatment decisions, but neither is it the intent to have young individuals who are capable of making treatment decisions being denied that right. There is a balance there to be struck. As I said, I am sure you will hear much about it.
On the issue of very young children making their own treatment decisions, you will recall a newspaper article in which someone suggested that one flaw with the legislation would be that a doctor would have to assess whether a three- or four-year-old child who was indicating somehow that he or she was refusing to receive a needle, for example -- whether that somehow was indicating that the child was expressing a refusal to give consent to health treatment. It then puts the provider in a position of having to make determination around that.
Certainly the legislation does not envision those sorts of situations. The intention of the legislation is to create a framework around consent to treatment that is reasonable and consistent. So again, as you hear about these issues and whatever amendments the committee determines are appropriate to try to clarify these points, I would welcome that kind of feedback, but I want you to be clear that this certainly that was not the government's intention.
Before we go to the briefings -- we will be doing the briefing and then we will be going to questions -- I want to point out that there is nothing in the Consent to Treatment Act which authorizes substitute decision-makers to consent on behalf of mentally incapable individuals to non-therapeutic procedures such as sterilization for contraceptive purposes, organ and tissue donation and clinical research. These are procedures that have no direct medical benefit for the individual, non-theraputic procedures. This is an issue of great controversy, as I am sure all members here will be aware. Again let me indicate that nothing in the act authorizes a substitute decision-maker to make those kinds of decisions on behalf of a mentally incapable person.
I am pleased to announce that Professor David Weisstub, who is the author of a widely acclaimed report on mental competency and a well-known expert in the field of law and psychiatry, has agreed to study and prepare a report on this issue. He was appointed on July 15 and will complete his work by the summer of 1993, so that issue is apart and separate from this legislation and will be dealt with following the receipt of that report.
In closing, let me say that I do look forward to the discussions that will take place at these hearings and to working with members of this committee to refine the act.
A number of ministry representatives will be attending the hearings, and they have been involved from the very beginning in developing this legislation. I do not think I gave a time reference, but the consultation certainly started before we came into government. This is an issue that certainly has had a long history of discussion, in the Mental Health Act and other advocacy concerns that have been around for a long time. We are pleased to be able to be involved, but particularly now to bring it together with pieces of legislation like the Substitute Decisions Act and the Advocacy Act, and we think the blend of the three is important.
The ministry representatives who have been involved in the development of this from the beginning are very familiar with the issues and will certainly be on hand throughout your deliberations. I urge you to take full advantage of their knowledge and expertise. They will offer their assistance to the committee whenever they can.
So you know who they are, let me introduce Gilbert Sharpe, director of the ministry's legal branch. He has a long association with this particular legislation. He will be doing the briefing and helping me answer some of your questions later.
Juta Auksi and Giuseppa Bentivegna are both ministry staff and they will be in attendance to help and answer any questions you might have. I also say thank you on your behalf to Brenda Pearce, an articling student who put together the annotated binders you have that will help you through it. All these people will be willing to help.
Many of these individuals have been involved in much of the consultation that has gone on involving the groups out there, and also Theresa Firestone, who has been very involved through the whole consultation. Theresa is here and can also give you indication of whom we have met with and talked to. If you think we have missed someone, let us know and we will try and make sure we help feed that into your process.
As the hearings proceed, I or my parliamentary assistant, Paul Wessenger, will be in attendance and we will certainly be listening closely to the discussions. We believe these are very complex issues the committee will be dealing with. The discussions will require a great deal of careful thought and reflection on the part of the committee members.
It is obviously, therefore, very important that we analyse carefully the presentations, views and opinions that will be expressed here as the hearings proceed. There are some points within this legislation that will raise serious differences of opinion because of people's life experiences. We know that even the rules of the Mental Health Act as they exist now -- the difference in opinion between consumers, survivors and some family members around the way the act works to help or impede people seeking treatment or choosing to deny consent to the treatment is a point of controversy. Those points of controversy will be raised squarely here for the committee to deal with.
I certainly look forward to the discussions and, as I have indicated, I remain open to considering alternative approaches that reflect the intent of the act. Our responsibility is to the Ontario health care consumers, their rights to be fully informed and to know what their health treatment options are.
If we can at this time proceed to the detailed briefing on the act itself, we can then move to questions and answers. I will turn it over to Gilbert Sharpe, who will be taking us through the briefing.
Mr Chiarelli: What is the extent of the detailed briefing?
The Chair: How long will this briefing take?
Mr Sharpe: It is up to you, but I thought I might go through the act and highlight some provisions and put them in perspective for you. The binders give you a detailed analysis of where everything is. Later on, in the new year, we are going to do an integrated briefing of the four bills.
Hon Ms Lankin: Mr Chiarelli, if it helps, it is my intent to stay through the briefing. I will be here for the question-and-answer period. I am not leaving.
Mr Chiarelli: I am just thinking of the time available. My personal opinion is that I would rather have some time, or the full time, to question you now. We can always have your officials back to go through some detailed briefing clause by clause or section by section.
Hon Ms Lankin: We are not looking at it clause by clause at this point. We want to provide an opportunity for members of the committee to have some overview of highlighted sections of the act. This is not a clause-by-clause briefing.
Mr Chiarelli: How long will it take?
The Chair: Yesterday, the briefing took about 20 minutes.
Mr Chiarelli: How long will it take today?
Mr Sharpe: Again, what I had in mind were highlighting provisions. As I went through, there could be questions in the context of the issues I raised rather than just pointing to sections. That might not be too productive.
Mr Chiarelli: If there were no questions, how long would it take?
Mr Sharpe: If there were no questions, it would probably take about one half-hour.
The Chair: Maybe we could do a few questions first if they are generated right off the bat.
Mrs Sullivan: I think many members of the committee would like to present general questions to the minister relating to the overview of the legislation before we move into details.
The Chair: That is the way we proceeded yesterday. Maybe we could do some questions now.
Hon Ms Lankin: I am in your hands. I suggested proceeding that way at the suggestion of the clerk and I agreed with it. If that is not what the committee wants, that is fine with me too.
The Chair: Okay. We will proceed with a few questions right away. Mr Chiarelli.
Mr Chiarelli: I have a particular question that for me, in any case, will put the legislation in some context because particular representations have been made to my office and I believe to a number of other MPPs. I would just like to know how you would describe the concerns of the Ontario Friends of Schizophrenics, who have been following the development of this legislation very carefully and in fact have commented and made representations on some of the things you have pointed out in your briefing. Are you familiar with their concerns and how would you describe their concerns?
Hon Ms Lankin: I actually attempted in my statement to raise this issue for the committee. There are differing opinions with respect to the workability of some of the rules around committing to treatment in an involuntary situation as it exists under the Mental Health Act now, and I would think the group you referred to would feel its challenge becomes even more difficult under the provisions of the legislation here. I think this is a very delicate issue of balance that needs to be struck.
Clearly, we want to have a situation where every person who is and can be deemed capable of making an informed decision about consent to treatment is afforded that right. The response that members of Friends of Schizophrenics will feel is that they find themselves, in many situations, trying to do the best they believe they can to get treatment for a family member. That person, as a result of the disease process they are experiencing, may express a denial of consent or a refusal to consent at this point which leaves the family feeling totally helpless about helping that individual to get the treatment they believe he or she needs.
There are two competing issues there -- not competing in the negative sense, but in the sense that there has to be a balance struck. I hope I have indicated some sensitivity to this issue. We will be looking for the comments coming forward from these groups to committee in the hearing stage and from the committee's discussions and debates to assist in striking that balance.
Mr Chiarelli: I do not agree with anything you have said with respect to the factors that have to go in to determining appropriate legislation. What I have concern with --
Hon Ms Lankin: I am sorry, did you say you do not agree?
Mr Chiarelli: I agree with what you said, but I do not agree with the fact that we have an actual bill before us. Given the nature of the concerns, the nature of the discussions, I wonder if it were not appropriate to be perhaps discussing a draft bill rather than a bill before a committee which is a live, active bill for which we are going to go into clause-by-clause and presumably introduce it into the Legislature for final approval.
Hon Ms Lankin: I suggest, as it was my experience in dealing with various complex series of bills under the Regulated Health Professions Act where we have some of these difficult balancing decisions, the best way for us to proceed is to hear from the people involved and, as legislators, make some commonsense decisions through discussions and the opportunity to have exchange with those people.
That can be done through the committee stage. I have indicated an openness to make appropriate amendments to try and seek that balance where there is consensus and where the opinion emerges from the process of discussion. It is also my experience that where that discussion starts to happen in a forum like this, we may be able to get the parties who have differing points of view together to have some discussions and, at some time, perhaps to arrive at a common approach as well.
Mr Chiarelli: The health professions legislation, as I understand it, was discussed in draft form before it was introduced in the House as a bill, and it was subsequently introduced as the bill. If I were to go through your remarks, I have just highlighted in a few places some words and phrases that give me concern with the fact that we are dealing with a live bill rather than, as occurred in the health professions process, a draft bill to deal with in the first instance.
Hon Ms Lankin: Again, Mr Chiarelli, I am sorry the amendments were all made when there was live --
Mr Chiarelli: I am not finished yet, minister.
Hon Ms Lankin: Okay, but the amendments were all made when there were live bills before committee.
Mr Chiarelli: Exactly.
Hon Ms Lankin: I am trying to assure you that I am very open to those amendments, but this may be a point of disagreement. The fact is we have a live bill before us.
Mr Chiarelli: I agree, and I am going to make a request with respect to that shortly. In any case, I want to point out some of the phrases and comments you have made with respect to this live bill, if I can put it that way.
On page 4: "I am hopeful we can find the appropriate balance on these complex matters." We are dealing with a live bill.
Another quote: "I recognize there is a need to clarify for purposes" etc.
A further phrase on page 5: "Some people are concerned that the process of" etc.
Page 6: "There is still some debate about how we define" etc.
Similarly, on page 6: "I am recommending some changes."
Again on page 6, further down: "Delays in treatment in non-emergency situations: There is some concern that" -- and you are addressing that concern.
You are saying further down on page 6: "I am open to considering alternatives."
Also you say, "Some people may also be concerned" with respect to another issue.
You say, "We have reason to believe that" on page 7.
Page 7: "Another concern is the potential cost" etc.
The whole phraseology -- I can go on: "Public health officials may be concerned," and "on this issue there are several points of view," etc.
I just think that when we are dealing with matters of personal freedom, matters of life and death, we are dealing with very emotional issues. I practised law for 17 years before I was elected in 1987 and I was in circumstances where I had to deal with some of these issues. You know now, by experience, because of the health professions legislation the type of pressures and representations that can be brought to bear on health-related issues. I repeat that the process was started by dealing with a draft bill, precisely because they were emotional, legal issues, issues of livelihood, of professions, that affected people in a very personal way. Because of those concerns, particularly highlighted by the Friends of Schizophrenics -- and it is all right to say we will look at options and alternatives, etc, but the solutions may be a lot more difficult in finding than an amendment to a bill.
What I am really saying is that I disagree with the process as an MPP, and I would strongly urge that the bill be withdrawn and reintroduced to this committee as a draft bill so that people will have a sense that the debate will be fuller, more open and the process will be more amenable to change.
That is a suggestion I am making. I do not expect you to follow it, but I certainly want to put it on record because I think you will find that in the process we have now you are going to end up with a political problem, a problem in the community, with health professionals, particularly in the mental health area. I am really giving you advice which you are obviously indicating you are not inclined to take, but I think you will want to consider the advice. It is very easy to withdraw the bill and bring it in here as a draft. You can always reintroduce it and go the process as you did with the health professions legislation.
Hon Ms Lankin: Are you finished now, Mr Chiarelli?
Mr Chiarelli: Yes.
Hon Ms Lankin: May I say in response that I find your comments about the phraseology odd. Quite frankly, I come to committee attempting to indicate a very open approach with respect to legislation and very respectful of the committee process where in a non-partisan way representatives of all constituents bring forward points of view and hear from various constituencies in order to bring their best advice to build the best legislation. I think the phraseology is very indicative of an approach I bring to dealing with legislation.
I think if you look at how I as minister dealt with the regulated health professions legislation, you will find that there was that openness to deal with amendments from various members of the committee and to try to work through, with groups, differences of opinion. I appreciate that you have a difference of opinion with respect to whether that would be fuller and would work better under a draft bill or a live bill, I understand that we may disagree on that. What I do assure you is that the process will have that openness and that I will attempt to make the best amendments and the best changes to the legislation that we can, based on what we hear and based on the committee's advice.
Mr Harnick: Minister, you referred in your remarks to some documentation I have from the Ontario Hospital Association, and I am glad you have described it the way you did. I am looking at the example where Julie is six years old and she goes with her mother to the outpatient department of the hospital to be immunized. She sees the needle and she starts to cry. That leads the doctor to believe he does not have consent, and he has to go and get the advocate, pursuant to, I gather, section 10. The advocate then has to come and speak to a six-year-old child and take instructions from a six-year-old child. Well, I have a five-year-old child, and you cannot take instructions from a five-year-old. I suspect you cannot take instructions from a six-year-old either.
I appreciate that the approach has to be one of common sense, and I think that is what you have said. How do we make this bill reflect a commonsense attitude so that health care providers are not in a position where they have to dogmatically follow a piece of legislation even though it makes no sense to do that, even though it is just taking things almost to the point of being ridiculous, and yet they say, "It's there, so I've got to do it"? How do we take this bill and at least indicate that there is some flexibility in it, that there are some discretionary aspects to it, without destroying the character of the bill? I suspect Mr Sharpe has some ideas about that, but I think that is important, and I would like your views as to whether you are going to be amenable to this committee making some of those suggestions.
Hon Ms Lankin: Yes, absolutely. The intent of protecting that principle that individuals have the right to give informed consent whenever they are capable of giving that informed consent with respect to health treatment is the integral part of the bill and of the legislation that we must uphold as we go through this.
In the example you raise, there are some obvious first answers that could be given on how you could clarify that. We need to make a decision with the best advice of what is the best way. What we have heard from some people is that we should take the age out altogether and leave it at the common law, as it is now. The doctor is in the same situation currently, having to make a decision about whether a person is capable of giving informed consent, and I think most doctors would make the decision that the four-year-old or six-year-old child is not capable of giving informed consent.
If the legislation continued with an age as a reference point, with those above being given the presumption of capability, you could put in as a reference point an age for which those below have a presumption of being incapable of giving that kind of consent. That is another approach that could be looked at.
There will be, I think, points of view expressed around those kinds of options. We will look for advice, but I think that part of the legislation probably will have to have that kind of amendment, and I am certainly amenable to that. The general principle that you raised about showing flexibility -- as long as we are looking at keeping the principles intact, absolutely. I think there are some areas where we want to ensure that it is a streamlined process and that it does not cause delays and grind the health system to a complete halt. We are not interested in that, so that kind of advice is welcome.
Mr Harnick: The concern I have in this example, which I think is somewhat of an extreme example, is that a parent takes a child to a doctor for a purpose. The parent, because of parental obligations, has to get his or her child immunized. The schools say you have to do it; paediatricians recommend it; the hospitals recommend that it be done, and I guess the government as well. So the idea of a 4-year-old or an 8-year-old or even a 10- or 12-year-old instructing the doctor about what they want and do not want is somewhat impractical. I think we defeat one of the purposes of this bill if we permit these kinds of situations to exist where the doctors say at the end of the day: "That's what the law says and I'm not prepared to bend the rules in any way. I've got to follow what the law says."
Hon Ms Lankin: Again, I do not disagree with you. We do not want to leave ourselves open to a situation where malicious obedience can present us with all sorts of problems -- or even a genuine concern of liability. In some situations it may well be that. On the other hand, we want to ensure that we codify rights. We can look to what the common law provides now in terms of people's right to give consent or deny consent for treatment. We can see how that is not being carried out in current events as we speak. That right is not codified in any way. So on the flip side of it, we want to ensure that there are responsibilities that health care practitioners and providers are made well aware of and understand their obligation to carry out. There is the need on both sides of the point you raise.
Mr Harnick: Very briefly, did you say "malicious obedience"?
Hon Ms Lankin: You being a lawyer -- I am not -- you can probably help me with this. There is a tenet that you can take a point too far, and I think it is referred to as "malicious obedience."
Mr Harnick: I would not want to characterize a health care provider as being "maliciously obedient" because they are concerned that the act says one thing. Just the word "malicious" --
Hon Ms Lankin: That is the second that I raised. It may well be a concern in terms of liability or responsibility or a lack of clarity. We need to address all those points.
Mr Morrow: I just have one quick question. It is something that really kind of bothers me, and I am hoping you can clarify it for us. Given any situation where a person has left specific instructions and then for some reason later changes or writes to change that, what would happen in that case?
Hon Ms Lankin: If a person specifically changes his or her instructions?
Mr Morrow: Yes.
Hon Ms Lankin: If the person is capable of giving consent at the time and if he or she has given a prior direction, that becomes null and void by the fact that they have changed that direction. I think there is protection in that situation.
Mrs Sullivan: As you know, we have some extensive concerns relating to the complications of the overlap between the bills relating to advocacy, consent to treatment and substitute decisions. The consent bill in particular is one that relates as much to medical ethics and ethical decisions -- moral decisions relating to medical/legal judgements -- as it does to the issue of treatment itself. One of the things we are concerned with, and why we would have preferred either to see an omnibus bill in draft form or a separate open discussion rather than closed-door consultation, is that what we see when we read the three bills together is very serious overlap and conflict between the bills in terms of the nature of the delivery of service that is projected in the bills.
I note that you have indicated, for instance, that in the Consent to Treatment Act, the advocate is simply a rights advocate. In the Advocacy Act, the determination of the role of the advocate is not defined and will not be defined other than by regulation. We are very concerned about that. We feel that is something that should be open, upfront and written down, and something for which people can have a right of input and discussion before, ultimately, that role will affect their lives.
The question of the priority of acts is a matter of concern as well. Does the Advocacy Act kick in over and above the consent act on occasion, or the Substitute Decisions Act kick in? Many of those details are quite unclear to people who have looked at these three combined bills and are trying to make sense of them in terms of dealing with people with whom they work: family, friends, people they may care for. Certainly care givers in various institutions have indicated that those are their concerns as well. In one bill, the Advocacy Act, we see that it is the facility that defines some of the functions and places of operation of the advocate. In the Consent to Treatment Act, it is the practitioner who is required to contact the advocate. What that means is that where the practitioner is operating relates to when the advocate is brought into the situation.
I am just using these as examples, because I think there are other examples of that kind of conflict and overlap that provide real concern. All of those areas of definition, by example, leave out the situation of the patient who is receiving care in an area outside an institutional setting. That is highly problematical, particularly as we move into a different delivery of health care services. We see in the Advocacy Act that the advocate will have a right to clinical and other records. In the Consent to Treatment Act, however, you have indicated that the advocate is there to be simply a rights advocate. If that is correct, why would the advocate necessarily have access to clinical records of the patient? The advocate is there for a particularly different reason.
I think this kind of clarification is very, very necessary. The training and recruiting of advocates -- in the Advocacy Act it is left to regulation. Surely it is important, under the Consent to Treatment Act, that there be input under that very act for the participation of the advocate in a training program relating to the kinds of illnesses or diseases or mental incapacities that have been defined. That will surely have a lot to do with the way the advocate relays information and passes on details about the rights available to that person. I think those are things where there is a lot of difficulty.
In the Consent to Treatment Act, we have talked about the issue of children. You have raised that issue. One of the things we see, according to this act -- a process matter as much as anything -- is that the advocate kicks in before the substitute decision-maker does. Is that not part of the problem? The advocate has to come in before, indeed, the parent can say, "Yes, my child who is three years old should receive that inoculation."
The question of when the advocate is involved in the process can also be a matter of concern in cases, by example, of people who are accused of sexual assault, who are immediately taken to a hospital situation to have samples done under police guidance or a police investigation. At what point does the advocate kick in? Is that procedure going to be delayed?
Hon Ms Lankin: Sorry, could you just clarify that point for me a bit?
Mrs Sullivan: I am suggesting that, for example, in the case of a person accused of sexual attack, where there is an investigation occurring and a medical treatment or course of treatment is necessary -- testing, basically -- to ensure that evidence is collected, what is the right to consent of the patient? When does the advocate kick in in those situations?
I do not think there is enough material included in this bill, for example, in terms of process to ensure that if it is considered to be a Lieutenant Governor's warrant, that it kicks in further. There is not adequate information in this bill in relation to that kind of situation. If the warrant kicks in faster, then that should be indicated.
I think people are very concerned about the issues and that is why we are saying there should be more discussion, more consultation, more information brought forward so people who have, who see and live with these conflicts and are trying to work through the morass of this combination of bills are able to bring these forward. Something that is workable and practical and that protects people's rights and that allows people to make decisions to the furthest limit of their ability is able to do that. I am afraid that with this process now we are going to get so bogged down in conflicting amendments which may fit well into one bill but, because one bill is on the table at a time, do not fit properly into another bill. Once again, through that process, the amendments are going to create even further difficulty.
I point that out to you because I have looked at this legislation. I have spoken with hundreds of people, it seems to me, about it. They have all raised issues of concern and I think those issues have to be on the table in a way where we understand that we are working towards a common goal, a common end. This does not do it for us.
Hon Ms Lankin: I do not think there was a question in there, but I will respond if that is okay, Mr Chair.
Mrs Sullivan: We are used to that.
Hon Ms Lankin: I always have an answer, you are right. I actually think it would be helpful, if people are in agreement, when I finish to move to the briefing because I think we can address some of those concerns you raise, maybe not all of them. We will have to see as we go through the committee hearing process. I think misunderstanding around some parts of how the legislation works or the bills and the provisions work together can be clarified.
For example, when you talk about the advocate's role, conflict between the role under the advocacy legislation and under the consent to health treatment legislation, I think if you look to the consent to health treatment legislation it is fairly clear what the role is, what we are talking about. First of all, you mentioned health practitioners and only in institutional settings. It is very clear that this legislation kicks in when a health practitioner is recommending or going to pursue a course of treatment. There is an obligation for that health practitioner to inform the individual and for the individual to be able to give informed consent. We are not talking about a restriction to an institutional setting. In fact, one of the very reasons for this legislation --
Mrs Sullivan: The Advocacy Act, though, limits the advocate to working in --
Hon Ms Lankin: In terms of a focus of work, a centre of work or the kind of ongoing role under the Advocacy Act, you may be very right. With respect to this legislation, the narrow and what will be a very small part of an advocate's job will be the kind of rights advice set out in the legislation.
As we go through it, you will see in section 10 what has to occur in terms of a meeting with an advocate. The advocate has to explain to the person what his rights are with respect to the finding of incapacity and to rebut that or to have a review board hearing. That, and the kind of assistance the advocate can give the individual, is set out. If you look to section 10, it is very narrow and direct.
When you talk about the ordering of a situation, about whether an advocate would have to be called in for the four-year-old child before the parent could give consent and where the substitute decision-maker is, again, I think if we deal with the issue Mr Harnick raised and that I raised in my remarks around the age, we have a clarification that I think resolves that concern. When we go through the briefing and as you go through the binder, we can point out the map of how the advocate and a substitute decision-maker and/or a guardian under the legislation, the Substitute Decisions Act, kicks in. I think it is a very clear and logical relationship.
I was confused about your comments about a person who is being charged with a sexual assault and the issue of needing to gather evidence quickly and would there be a delay. Perhaps I can seek some legal counsel advice on this to help us, but it is my understanding that an individual in that situation cannot be forced to undergo any kind of treatment situation. It would take a court order to do that under the current laws. I do not think we are preventing something from happening by this legislation but maybe, as we go through the briefing, I can ask Gilbert to address that as well.
The Chair: I was wondering if the government side would agree to proceed to the briefing now, and questions can be asked as we go along. Are we in agreement with that? All right. We will start the briefing now. Please indicate if you want to ask a question as we go along.
Mr Sharpe: As I said earlier, I am going to highlight some of the provisions of the bill, give you a bit of history, put things in context and attempt to deal with some of the questions that have been asked during our consultations, particularly over the last few weeks and around this table.
Starting on page 2, section 1 of the bill, the definitions section, I will just point out to you the definitions specifically of "advocate" and "health practitioner." "Health practitioner," in particular, is intended to be very broadly defined. When this bill was drafted the regulated health professions legislation had not been enacted and the notion here is to list all those regulated health practitioners. In addition we may have others that from time to time are added to the scope. The intention of this act is to cover the provision of health care services everywhere in the province in all settings and to have one set of rules on consent. As the minister indicated, there are currently conflicting provisions in the Public Hospitals Act and the Mental Health Act, there is nothing in the Nursing Homes Act and there are common-law rules that are not really well understood and so on.
"Treatment," on page 3: Again, the intention is to be very broad. I point out subsection 1(2). The notion of partners is being recognized as a potential substitute, in addition to the traditional definition of "spouse" that we have used the last few years. There is also scope here, as there has been for several years in the Mental Health Act, for any competent individual to designate the person to serve as substitute should he become incompetent. It might be a close friend or anyone else.
Section 3 -- you will see a provision later on similar to this -- specifically indicates that we are not attempting to alter the common law in a number of areas. Here the area is restraint and later on, as the minister indicated, there will be reference to non-therapeutic interventions for mentally incompetent persons.
Section 4 is the prohibition provision, the operative provision, indicating that one cannot provide treatment unless a mentally capable person provides consent or, if he is incapable, then his substitute does that.
Section 5 codifies the common-law elements of consent. It must specifically relate to the treatment, must be informed and must be voluntary.
Mr Harnick: If a doctor or a health care giver performs a procedure without consent, there is an offence provision in the act. I think it is later on in the act. The civil standard has been, by way of case law, that if you had been given the consent you would have accepted the treatment that was ultimately given anyway. Although there has been a lack of consent, the courts have not deemed that to be negligence. So you sort of have that double step in the common law today. Is that so with this act? Am I making myself clear?
Mr Sharpe: I just want to clarify that there is no specific offence provision in relation to section 4, so if a health care provider does not obey these rules it is not specifically an offence under this act. That is something some groups have indicated they want to discuss with the committee when they come forward in the new year.
Hon Ms Lankin: One of the suggestions that has been made and that the College of Physicians and Surgeons of Ontario, for example, and other professional health regulated groups will be looking at, is whether an offence of section 4 could constitute professional misconduct under the Regulated Health Professions Act, but that does not take away from your question.
Mr Harnick: Now that you have codified this, there are all those cases that came out of Riebel and Hughes which went on to say that even if you did not get the consent, if you had been given the proper explanation you would have had the treatment anyway. You have one step in here but you do not have the second step, and this is now codified. How will that affect the way judges in the broader sense are going to interpret that kind of case law?
Mr Sharpe: What I hear you saying is the second step in the case relating to causation. In other words, the informed consent is flawed in some way; a particular material risk was not explained to the patient, but a reasonable person in the patient's circumstances would still have proceeded had they been told that material risk.
Mr Harnick: Exactly.
Mr Sharpe: I do not believe this act alters the causation issue in a negligence action. I think it is codifying the information side of Riebel and Hughes and Hopp and Lepp, but we are not attempting to deal with the evidentiary standards or proceeding with a civil action. It may be that in some cases, as you know, the courts have held that breach of a statutory duty is prima facie evidence of negligence and that it may assist plaintiffs by having it now codified in the statute if it can be demonstrated a material risk was not disclosed. But it still is a matter of causation in proceeding with the action open to the physician, say, if he or she is the defendant, to establish the test of reasonability in the patient's circumstances so that the causation as a link will not be there and the action would not proceed. I do not believe we have affected that.
Subsection 5(2) takes words from Riebel and Hughes and Hopp and Lepp in codifying the concept of informed consent, and subsection 5(3) deals with the notion, of course, that consent can be express or implied; in other words, implied by your actions. A patient holds up his or her arm to have a needle or takes his or her clothes off to have an exam, and that is tacit consent.
Subsection 5(4) recognizes the notion that we may be prescribing a consent form. There are some difficulties here and, as you know, the notion of having standardized forms that practitioners have to use is attractive on the one hand but on the other hand, in circumstances where the forms may not be readily available, if they interfere with the provision of care, it could be seriously detrimental. So we have put in a notion providing that we may be setting out a form, but that is something on which I hope, through discussions in committee when we hear from the different groups, some kind of final determination could be made.
Mr Harnick: Dealing with that little consent form you always see in the hospital records about one page long that says "I have been told everything," you know you have a volume of hospital records that thick, and there is one page signed and witnessed by a nurse. Oft-times you find out that in fact it is a standard form. They come in and it is signed at one time. The doctor may come and see the patient the night before the surgery and go over it with him at a totally different time. The act is silent about who should be obtaining the consent, and if there is a written form, who should be giving the instructions or the explanation and being the witness to that form. Oft-times one is done in a totally separate way from the other because the hospital has its problems with liability and consent and the doctor has his problems with liability and consent. It becomes a confusing issue. Have you directed your mind to that in any way?
Mr Sharpe: The difficulty I have always had with consent forms is that they are supposed to simply evidence the discussion the doctor had with the patient, and of course they are there to protect the doctor. Later on, if there is a case that is grounded in lack of consent, the form can presumably be pulled out, although, frankly, I do not know of a case where a form has saved anyone. Ultimately, it has come down to evidence.
Mr Harnick: That is where you hear some really bizarre stories about how the form got signed and why it was signed and who it was signed in front of, and when did the doctor come by and when the anaesthetist came by. Did that have anything to do with the form? "Well, I did not even know that the form was connected to those people who came to see me."
Mr Sharpe: One of the problems, I think, in Ontario and in some other provinces that has complicated the matter is that for years under the Public Hospitals Act under the section dealing with hospital management regulations there is a provision talking about written consent to, say, surgery. Hospitals view that as a management matter, as a process situation, and often nurses have been told to go in and get this thing signed. Of course, nurses are reluctant to do that. It is supposed to be the doctor's responsibility to ensure again that there has been a proper informed consent.
In looking at this, as I say, we have been of two minds. Do you designate a form that provides for all of the major ingredients necessary for a proper consent? Of course some jurisdictions like California have gotten into pages of consent forms that are really useless, and now they are videotaping the consent process. Hopefully, we will never come to that, and no, we do not intend to do that in this act.
But the idea of prescribing a process as to who should do it I do not really think is necessary, because if you place the obligation on the health care professional to ensure that the patient has given him a proper consent, ultimately it is his responsibility to decide how he wants that evidenced. If he wants to use a form, that is his prerogative.
But if the committee decides as we proceed that it would be best to at least provide the basic elements of what goes into a consent, to require a form for certain types of particularly intrusive procedures, and to make it clear that the responsibility rests with the primary provider of service -- because you do not want to get into a confusing situation where there are different providers involved with a patient and because of this act, and a requirement that there be a consent form signed to each element of the service, nurses and social workers and doctors and anaesthetists and everyone are worried about getting their own form signed. We certainly would not want to complicate the process in that way.
Mr Harnick: So it is the primary care giver, or his designated appointee, for those?
Mr Sharpe: That is the intention, and if as the committee process evolves it is decided that it would be useful to clarify that, as you know, we will have the draftsman with us and we could do something.
The provisions relating to capacity, starting with section 6, reflect again some common-law tests that have evolved. These are similar to the Mental Health Act, the description in subsection 6(1), and then section 9 that deals with prescribed criteria, standards and procedures. The minister referred to Professor Weisstub's report on competency that was completed a year and a half ago. There are some standards set out there that we have been examining, and we are hopeful that when the committee reconvenes in the new year we will have some guidance we can show as to the types of processes and criteria.
This is a very significant issue now among all health care professionals, wanting to know how one assesses capacity and under what circumstances one can safely assume a patient is not competent. That is what we are trying to get at with section 6 and section 9 and at the end of the act with the regulation-making power. Again, we have tried to keep the specific heads of reg-making powers fairly brief, but we have set something out where we could prescribe standards criteria and a process for assessing capacity.
Section 8 is, as the minister indicated, one of the more difficult issues. It does relate to age of consent. I should say that the provision in section 8 has been in the Mental Health Act since, I believe, 1987. Here the question is at what point do we, if at a point at all, decide that a young person has become capable of consenting to treatment.
The public hospital regulations have for many years dealt with the age of 16 and there is a certainty involved in that. The hospital knows that under that age they must look to a parent, guardian, society, whoever has legal custody of the young person. On the other hand, as we know, there may well be 14- or 15-year-olds who are factually competent to make their own choices, perhaps not for very complex procedures, but for some straightforward procedures, that they would have that factual ability that is being arguably denied to them now because of the operation of the Public Hospitals Act. So that is the dilemma. I know Quebec has had an age of 14 for some years.
If we codify the common law, we get into an evolving state of capacity which will be different for different young people, because kids mature at different rates. The complexity of the procedure may make it so that the young person is not competent to consent to certain things that are high risk and very complex, but the same person has competency with regard to other things. That is the common law.
It does create some confusion for providers, because there is a requirement that they make some judgements in each case. So what section 8 does is try to find a decent compromise by presuming that under 16 young people are not competent. If a young person demonstrates a wish to make a decision, then that person is to be assessed by the provider and, as the act is currently drafted in section 10 -- I think it is subsection 10(7), as we will see in a minute -- is to be visited by an advocate in the rights adviser capacity, explaining to him that they can challenge this finding of incapacity before the review board, assuming that the provider finds him to be incompetent.
The intention was certainly not to deal with four- and five-year-olds. We would hope that common sense would dictate that at some age one can be assured that a very young person does not have capacity. But when you get up to 12, 13 and 14 that is not always clear, and it does become a very important human rights issue as to at what age, at what developmental stage, for a young person are we as a society going to respect his rights to make autonomous decisions?
It is a very difficult issue. As I say, this was seen as a compromise. It is something that has been in one statute for some years and it seems to have worked reasonably well. If the committee decides after listening to representations that there should be some floor placed on the ability of young people to give consent, whether that be 10 or whatever, or perhaps as a compromise that the mandatory rights advice, when a young person demonstrates a wish to make a decision, should be restricted to a certain age, 10 or 12, the mandatory advocate visit, those, as the minister indicated, would be possibilities the committee might decide to recommend.
Mr Poirier: How does that apply to "but the presumption may be rebutted?" That implies to me that no matter what age you put in there, it may be rebutted. Under what circumstances? By whom? For what? When? What does the common law say so far about this? Is it the severity or the importance of the treatment? Is it the mental capacity of the child or the maturity of the child or the young person? This is a whole Pandora's box, is it not?
Mr Sharpe: You are quite right, it is not spelt out in any detail. But the notion we have in subsection 10(7) is that if the person is under 16 and has demonstrated a wish to give or refuse consent, you have the advocate going in. One could move an amendment that deals with a mandatory assessment by a health provider where the young person demonstrates a wish to make an autonomous decision.
How do they demonstrate a wish? They turn up on their own to the doctor, seeking some kind of care or counselling, whatever. They might do it with a parent present by indicating that they do not wish the treatment that the parent has brought them in for.
At the present time it could be rebutted down to the age of one day and that has raised some technical concerns, although I do not think they are practical ones. The committee may decide it wants to make it clear in law that there should be a bottom age on that rebuttable presumption.
Mr Poirier: Yes. We know who the rebuttee is, but who will be rebutter?
Mr Sharpe: The health care provider would --
Mr Poirier: Only that person?
Mr Sharpe: That is the intention, and perhaps that should be made clear when we get into the legislation. But you mentioned the common law; there really is not this notion of rebuttal presumption at common law. Right now it is very much a matter of the development and maturity of the young person.
I have always been of the view that unless a statute takes away the right from the young person to make the decision for himself or herself, someone may at 14 or 15 be quite competent to make judgements for himself or herself and that health care providers today should be respecting the rights of those persons.
Mr Poirier: What happens when young people come on their own to see a doctor for a sexually transmitted disease, for example? They may be 13, 14 or 15. What happens there?
Mr Sharpe: I would suggest that today they probably receive treatment and if they wish that their parents not be told, it would be my view that probably providers would respect that, because at common law they would be able to determine that the young person was mature enough to make his or her own judgements. There is no presumption to rebut. Some public health people who will come before this committee later on have certainly told us they intend to do that. They will say that this language may make it a bit more difficult for them to deal with young people.
However, today I would expect those young people would come forward on their own, which in itself shows a certain sense of maturity, that they would come to get the care they need. If they have asked the provider not to tell their parents, again, I think you should question providers who come before the committee, but I would think that most would respect those wishes.
Mr Poirier: Do they still today feel protected or do you think they would feel protected by what is brought forward? It may or may not be rebutted by the care giver, but if the parents would find out through some other means that their 13- or 14-year-old child had received some health treatment or care from a provider -- have there not been cases so far where parents have questioned that?
Mr Sharpe: Not to my knowledge, not civil liability cases. There may have been complaints to the College of Physicians and Surgeons based on professional misconduct, although, again, I am not aware of those either. But we have provided here in subsection 24(1) an immunity against civil suits for practitioners who behave reasonably in following the tenets of the legislation. There has been some suggestion in our recent meetings that it would be helpful if a specific immunity were given to those who rebut these presumptions in good faith and on reasonable grounds, so that they can be assured of not being sued. Again, that is something the committee may want to consider when we get to that stage.
Mr Poirier: I think that aspect can be very well tightened up, because with what is happening with civil suits and whatever today, when you look at what is happening with the health situation of a lot of the young people, drugs, sexually transmitted diseases, whatever, under 16, I think we will really have to protect those care providers that want to provide care for those under-16 young people.
As far as we know, there is a heck of a lot of them that do not have care, because they may not know they have a problem, but we want to make sure that the law will protect the health care provider so that he or she does not have to worry. If they tend to specialize and they get to be known to be very open to the younger people, and younger people will pass on the message that this person is very open to young people and he ends up having a lot of interest from young people, we have got to make sure we protect that person.
Hon Ms Lankin: If I can just add to that, I think that raises the question of whether or not there should be a reference point age, and if there is a reference point age, whether 16 is the appropriate level. I think there are two levels to that question that we will hear considerable debate on as we go through this, but I think we share that concern, to ensure that a young person who is capable of making a health care decision is provided that opportunity, and that we do not have a closing down of those services because of a chill effect of the legislation, that providers are concerned that they would be at risk in making those decisions.
Mr Poirier: I do not know, I have not discussed this with anybody, but from my personal experience I find 16 rather high. But we will definitely get a chance to talk about that. I am afraid at 16 we are going to bounce out a whole lot of young people today that you and I know are sometimes way below 16, who need sometimes, or who do not get, the support of the family to go and get health care.
Hon Ms Lankin: Certainly, the way the legislation is written, if an individual below the age of 16 says he wants to make this decision for himself and is capable of making this decision, the health care practitioner then will have to make a determination, as in any other case, whether that person is deemed to be capable of making the decision or not. The process is there, but I think the question you raise is how will health care practitioners behave with that? Will they feel at risk and will that have a chilling effect? I think those are some of the things we need to hear through the consultation or the committee hearings.
Mr Poirier: I am sorry if I took a bit of time on that particular point.
Hon Ms Lankin: It is an important one.
Mr Winninger: Just briefly to build on what Mr Poirier asked you, and you may have answered this for me before -- I forget which expert is which -- the 14-year-old young lady comes in and asks for an abortion. Under this particular section we have been referring to, could a doctor presume that the 14-year-old does have capacity to consent, notwithstanding the 16-year cutoff age? Or would the doctor have to proceed the way other doctors have and involve children's aid and get the consent to the abortion that way, without the child's parent consenting?
Mr Sharpe: The way this is drafted, the physician would assess the competency of the 14-year-old to consent to an abortion, and if that physician believes the young person is competent then the presumption against capacity will be rebutted. They would be advised by their insurers and so on probably to well document that rebutting of the presumption and they would then be able to deal with the 14-year-old as a patient, one on one, autonomously, and provide the abortion with her consent alone. That is the way this would operate.
Mr Winninger: And be covered under section 24.
Mr Sharpe: Section 24 would provide the immunity so as long as they behave reasonably.
Mrs Sullivan: I am interested in this section, although I think in the entire scope of things it is a relatively small point we will be able to get to more clearly on clause-by-clause. It seems to me that one of the problematic areas here is the specific age. The concept of a mature minor being included may be a more ethical approach if you are looking at questions of whether the treatment is understood, the risks and the alternatives, and the questions are understood.
I think the drafting here does not give adequate reference to situations, for example, where there is an indication of the physician's diagnosis or judgement that the young person is not capable of making a decision and therefore turns to the parent as a substitute decision-maker.
We live in a very different time from some of the concepts relating to parent decision-making years ago, when most parents lived together, when there was agreement between them on courses of action and so on. We are now into a situation where we have a different social fabric, where disagreement between parents can have an impact on the physician who wants to provide the treatment or who is recommending the course of treatment, when it is a refusal of treatment by a parent. It just seems to me that redrafting with some other emphasis here is going to be necessary.
I am also very concerned at these ages being included if you are dealing with children who are mentally unable to make decisions, and that judgement has been made regardless of age factors and where there is a different kind of dependency relationship than can be categorized in the normal terms by age. So we would certainly be looking for some consideration there.
As I indicated before, one of the things I am concerned about with this bill is that the advocate, because of the process that is outlined in this bill, comes in before the parent, so there is also a delay there that I just do not think is acceptable in terms of the normal delivery of care, whether it is immunization or a cut finger.
Mr Sharpe: As I indicated earlier, I guess it comes down to the importance that we as a society place on the rights of young people. If we decide that it is very important, particularly with adolescents, to respect their autonomy, and they have indicated clearly they want to make their own choice in an important health care decision situation, but the physician, perhaps under some pressure from the family and parents who he or she has dealt with for years, decides that the young person is not so capable and therefore does not pay attention to their concerns, how do we ensure that the young person's rights are protected?
The way this act suggests is that there be a delay while the advocate visits the young person and explains to them that they have the right to challenge the decision that they are not capable to a tribunal. Is a visit by an advocate necessary? Could it be done by simply having the provider obliged to tell the young person they have a right to challenge that finding, to give them a form or to give them an explanation? Do we trust providers, frankly, to do that under coercion from parents who are standing there?
This act says we are better advised to have someone from the outside come in and speak to the young person separate from that treatment situation. And, yes, that would delay treatment. Is it worth it to respect the rights and the interests of the young person in making their own choice about their own care? I guess those are the debates we have gone through in our consultations. The committee will hear a number of sides too, I would expect, during the hearings process.
Mr Poirier: Further to that point, you have just said that the parent decides to tell the care provider that the child is not competent to make the decision.
Mrs Sullivan: The practitioner.
Mr Poirier: Yes. I see another point where the parents will tell the care giver that they do not want that child to have the right, even though they may recognize the child is competent. What happens then?
Mr Sharpe: Again, under this act the care providers hopefully will make an independent decision, because it is still their obligation to make sure they have a valid and informed consent from their patient, and in this case their patient is the young person. The young person has demonstrated an intention to make a decision. The providers, the doctors, say, should then assess the capacity of the young person in that situation to make that choice. If the decision is that the young person is not capable, a decision the parents would be very happy to hear presumably, then the way the act is now prepared the young person has a right to have an advocate visit him and explain that he can challenge that decision before the tribunal.
Mr Poirier: The care giver's decision?
Mr Sharpe: The care giver's decision that they are not capable. The parents, although they perhaps can exercise a bit of coercion, should have no role in affecting the judgement made by the physician, that should be independent. But where that judgement is that the young person is not capable, and it may be that a long-standing relationship with a family practitioner and the parents might have had some influence in their coming to that choice, the young person will have an independent individual come in and explain that if he would like to challenge the physician's decision that he cannot make his own choice, he has a right to do that. Then the advocate will help them do that, perhaps get counsel or whatever is necessary. In the interim, there will be no treatment.
Mr Poirier: In the interim, what happens if it is a bit of an emergency situation?
Mr Sharpe: We are coming to that. Actually, that is different.
Mr Poirier: How about the decision where the young person may or may not, versus can or cannot, make the decision. I know English is my second language, but I was tapped on the fingers about the difference between "may not" and "cannot." Maybe they can make an informed decision, but the parents say, "You may not make that decision."
Mr Sharpe: In that case, as far as the provider is concerned, the presumption that they are not capable would probably retain the right on the parent to make the choice. If the young person is so coerced by the parent into not demonstrating a desire to make a choice, even though factually they may have that ability, the physician is under no obligation to rebut the presumption, have an advocate come in, that sort of thing. That has created concern among some providers who have indicated that they would prefer to stay with the common law, where they do not have a presumption against competency to worry about. They can simply deal with the young person and decide, are they or are they not competent, and if they are not, they look to the parent.
Mr Poirier: So in fairly non-medical terms, some parents are bound to go snake pertaining to a care giver's decision?
Mr Sharpe: That is a concern. Could this somehow effect an interference in family relationships? The fact is that today, as I indicated, at common law for all settings outside of hospitals, this is currently the situation. The young person has the right to make his own choice if he is factually competent. There is no presumption against that.
Mr Poirier: Including age.
Mr Sharpe: There is no age at common law.
Mr Fletcher: Mr Chair, a point of clarification. Are we asking questions at each step along the briefing, or are we waiting until the briefing is over? My question may be answered if the briefing continues.
The Chair: That is what I was going to suggest. If we speed things along because the hour is getting late, a lot of things might become clearer as we proceed.
Mr Fletcher: Then I will pass, Mr Chair.
The Chair: Mr Sharpe, if you would like to continue.
Mr Sharpe: Section 10 is another of the important sections. This deals with a person 16 or older who is judged to be incapable with respect to treatment. The health practitioner must do a number of things: advise the person of the finding and give him written notice that he is entitled to meet with an advocate and apply to the board to have that decision reviewed, and notify an advocate. Subsection 10(2) requires that the advocate promptly meet with the patient and explain the effect of the finding of incapacity, which is essentially that someone else will now make the decision for him, and that he has a right to challenge the finding that he his not capable before the review board.
The reason, of course, the advocate steps in ahead of the substitute is that the substitute really does not have a role until the capacity decision is finally determined. As the minister indicated, and based on our experience with a similar provision in the Mental Health Act, the person who is told that he has been found to be incapable and has a right to challenge that finding, in most instances that challenge does not take place. They are satisfied or they do not understand or whatever, but the substitute then moves in and makes the decision on the treatment for them.
This section is really a very important one, because in most instances, when we think of having powers removed from us as adults, it is usually done through a court process. In the so-called sanity trials under the old Mental Incompetency Act, there is a very high onus of proof beyond a reasonable doubt before someone can be found to be incapable and then have rights removed from him to make decisions about, say, his finances. There are some who have expressed grave concerns that in health care there should be an exception made where simply the judgement of, say, a physician can remove our rights to make very important decisions, perhaps more important than money, decisions about what happens to our bodies. For that reason, this compromise was struck during discussions at the Fram committee several years ago -- you will hear more about that on Monday -- the notion that we certainly cannot put all health care decisions on competency through the courts, for obvious reasons, but can we ensure there are protections so that the person found to be incapable, who does not believe he is incapable and wants to make his own choices, knows there is a process whereby he can challenge the finding of incapacity? That is what this advocate's visit is intended to achieve.
It is not mandatory that there be a court hearing or a tribunal hearing before someone loses the right to make those autonomous choices in health care, but we want to make sure the person knows he has that option, should he want to exercise it, and that is what this provision is about.
We have taken three steps. We have said that when, say, the doctor finds the person to be incapable, you should tell him about the finding, give him written notice that he has a right to challenge that before the tribunal and have an advocate come in and review the process with him in addition to those other safeguards. That is essentially what this section is all about.
Mr Fletcher: Just a note as far as Alzheimer's patients are concerned: My father, before he died, suffered from Alzheimer's, and my sister had to go through a legal battle just to get treatment for him. Is this going to alleviate that at all, as far as Alzheimer's is concerned? Sometimes you do not know night from day, or you can have explained to you that yes, you have the right to an advocate, and then the next minute not even know what a person is talking about. In the case of that disease, is this legislation, or even this part of it, going to help people who wish to take care of their family member who has Alzheimer's?
Mr Sharpe: To be honest, the focus here is more on the rights of the person who has been found to be incompetent. I have an uncle with Alzheimer's who has been in Baycrest for a time; when I visit him, sometimes he knows me and sometimes he does not. When he has somewhat lucid moments, he is still not competent to make care decisions, but being a former lawyer -- he is still a lawyer, I suppose -- he would certainly be aware of the situation where his wife is now making care decisions for him. The fact that an advocate visits him to tell him that he could challenge that decision before a tribunal I do not think in his case would make any difference. I think he would still trust his wife to make those decisions. He has not demonstrated a real desire to take over that role during the last time he has been in.
The problem with someone who is truly incompetent understanding what the advocate says to him is of course a very great difficulty. Here we felt we should err on the side of caution in at least giving an explanation to him -- the concept in the legislation about gearing it to the particular disability of the individual where possible so that you do your best as an advocate to explain to him. It is almost like taking instructions from a mentally ill client who will perhaps be judged not fit to stand trial but ultimately could know enough about the court process to at least be able to tell you he wants to challenge the attempts of the crown to do that. The test is very low for instructing counsel, and I would hope that here we would have a similar ultimate determination that enough could pass through so the individual understands he can challenge it.
In this situation, if your relative's decision were, when he was somewhat lucid, "I want to make my own choices and I want to challenge it," then counsel could be obtained and he could attempt to bring that before the tribunal. The evidence might be overwhelming that they are not capable, but at least they would feel they have that option of going forward and still attempting to make their own choices.
As I say, in the case of my uncle it would not have made much difference, because in that family relationship he really trusted his wife to make those choices for him.
Mr Fletcher: This would also come into effect if the person with Alzheimer's were to say yes one day and no the next, what Mr Morrow was talking about before.
Mr Sharpe: Yes, that is right.
Hon Ms Lankin: I am going to build on that and ask Gilbert to address the issue -- it comes up later in the legislation -- around advance directives and making known what your wishes are in advance for treatment and/or who could be the substitute decision-maker in certain situations, those kinds of things in the situation you are dealing with, which is very different from the situation we perhaps will hear with respect to Ontario Friends of Schizophrenics and the problems they face as family members. You may want to hold it until you get to that point, but there is a connection.
Mr Sharpe: That is fine. In the interest of time, so we can complete the briefing, perhaps I could go to section 13 and talk about the wishes-versus-best-interests idea and the advance directive and its role.
The thrust of the legislation, as we have been discussing so far, is to respect a person's autonomy wherever that is possible, so that the concept in both Bill 108 and this are that a person should be able to, when competent, make out a power of attorney for personal care, in the case of personal care decisions, indicating in advance what he does or does not want and who he wants to make choices and so on should he not be competent in the future. It may be that someone diagnosed early on with Alzheimer's would make out such a thing.
I can remember some years ago being involved in amendments to the Powers of Attorney Act, which dealt just with estates, dealing with the Alzheimer's society to make certain that where one of their members wanted his spouse to continue to look after his assets, when he is admitted to a psychiatric facility the public trustee not automatically take over, which had been the law for many years. The acts were amended to make sure that would happen.
This is a similar kind of extension into the personal care area. In section 13 we deal first with the power of attorney for personal care, which we will hear about on Monday. It is a very formalized process. The idea in subsections (2), (3) and (4) is that wishes will always override the best interest notion if they are known.
In subsection (2) wishes with respect to treatment override earlier instructions, so even though a person has made out a formal document, if he subsequently says he has changed his mind that is good enough; he does not have to go through a formal process of changing his mind. In subsection (3), again we get into later and earlier wishes.
Subsection (4) is a kind of advance directive concept. Wishes with respect to treatment may be written in the prescribed form. We are not requiring that the form we develop be used necessarily; we are simply thinking of putting together something as a guide. But we have met with a number of groups such as Dying with Dignity that have suggested forms to their members. We would not preclude their forms from being used or from any type of form being developed, but the idea here is that someone, when competent, can indicate in writing, if he wishes, what he would or would not want done later on.
The "later on" might not necessarily be a living will situation, a terminal situation; rather, it might be someone who does not want to go into a particular type of facility if he is not able to make judgements for himself, if he does not like a particular kind of nursing home, say. Or a chronic schizophrenic also has taken a certain kind of medication that has given him terrible side-effects, like tardive dyskinesia, may choose to indicate when competent that he does not want that, or he may when competent be very grateful that intervention was given when he was incompetent and indicate in his advance directive that he would want to be brought into hospital and cared for; that when he becomes incompetent, whatever he says he wants people to disregard. We are trying to make the scope of the advance directive notion very broad in the legislation.
There is one exception and perhaps we should speak about it very briefly here. It is in section 29, on page 16 of the bill. We have set up a structure to permit departure from instructions or wishes, even though clearly known. This is in subsection (3), in the case where it is an application to a tribunal, where the board is satisfied that the incapable person would probably, if capable, have given consent because the likely result of the treatment is significantly better than what was available at the time he made out the living will.
What this is intended to apply to would be, to take your example, someone who has Alzheimer's and has made out a living will indicating that he does not want any heroic or special measures used or any treatments given once he reaches a certain state. He reaches that state. The will is clear; his wishes are clear: He does not want care or treatment. A new drug is developed in the meantime that has proven to be very effective. Should we deny giving that drug to him because he has made out a prior statement without the knowledge that the drug was available? This would provide an opportunity to the provider of care, to the family, to apply to a tribunal, and the test is very tight. It is that the person would probably have given consent because the likely results of the treatment are significantly better.
Norm Sterling, you may recall, raised during second reading the concept of the breadth of the override provision to take into account, again, a very controversial area. A woman who may have made out a living will subsequently gets married and gets pregnant. She is six months' pregnant and is in a car accident and is brain-dead. The living will said, "No heroic measures; disconnect all life support." The family indicates that she really wanted to have this child and it is possible to keep her on life support long enough to do a caesarean section a couple of months later and it is something she would desperately have wanted.
Should there be a means of taking those new and different circumstances into account in this legislation? That is a very difficult issue. The policy that was developed here does not reflect the concept of broadening it to significantly different circumstances, because groups like Dying with Dignity have suggested it does create a possibility of family overriding clearly expressed wishes in advance by people and undermining the effect of a living will. The argument is that it is like any of us who makes out a will. We should be responsible enough to know we have made out this document and to review it regularly and alter it if our circumstances have changed. It is argued that we should not weaken the effect of a living will by broadening the effects of subsection 29(3). But I believe that, based on our consultations of the last few weeks, there may be groups coming forward speaking to both sides of that issue in the new year.
The Chair: Thank you, Mr Sharpe. We have several questions lined up now.
Mrs Sullivan: One of the things that is giving us all pause and concern as we go through this is that we are thinking about different applications of the bill in terms of different illnesses or periods of competence and so on, which may change from issue to issue and time to time; that because of the impact of the particular illness, a person may appear to be competent at a point in time, that the illness itself may allow that appearance although the appearance is not what a physician or a care giver in another situation may have determined to be competent. I am thinking of situations like schizophrenia, situations like the patient with a severe stroke, who is in a highly depressed state, where no competent wishes would have been expressed, although there may be a level of understanding about a certain level of treatment given.
I suppose as we go through this and look at the person's wishes coming first, what we see in many cases are wishes for or a course of medical treatment at a particular time, where in another situation the person would have said, "Yes, this is in my best interest," but in that particular situation, even while being judged competent, he would say no.
I think that is where the controversy comes in, the balance between the whole range of disabilities that would lead to an incapacity or a conclusion on the part of the health practitioner, when in other circumstances there would be very different judgements.
Mr Sharpe: It is a very difficult situation, because we felt it is important to try to place the maximum emphasis on individual autonomy, and you do this by trying to respect wishes as much as you can. This has been reflected in American cases like Quinlan and Saikowitz and so on. But how do we know whether the person was actually competent when he or she expressed those wishes some time ago? Say with a patient suffering from a psychiatric condition, he might have been in the throes of psychosis when he made a statement; there was not an assessment at the time, but those are the expressed wishes that are available.
Mrs Sullivan: If you have a situation where a patient has been found guilty by way of insanity in a court and is placed in a correctional institution and a course of treatment prescribed, because that person is in an institution already, he is there under another section of the law, how does that situation fit into consent and into the substitute or advocacy situation? Does the advocate appear? Does the consent occur in any case?
Mr Sharpe: No matter what the setting in the province, whether it be a jail where the person is receiving care by a physician, say, or a person committed as an involuntary patient to a psychiatric facility, a person found not guilty by reason of insanity and put on a Lieutenant Governor's warrant in a facility, the rules would be the same for all of them, that if they are found to be incapable, there would be appeal mechanisms available. The Mental Health Act currently has a mechanism that does that, and ultimately the substitute would make decisions for them.
So, yes, this would apply uniformly across all of those populations because a finding of, say, not guilty by reason of insanity, or that the patient is dangerous on account of a mental disorder and is committed to a mental hospital, does not necessarily mean he is incapable of making treatment decisions. That is a separate determination of the same prisoner.
Mrs Sullivan: I think of the person who is being transferred, then, to Penetanguishene, which is basically a hospital setting. If the patient is not incapable, why would the patient be in that setting?
Mr Sharpe: Because they have been found not guilty by reason of insanity of a very serious crime and they are very dangerous. But they are not guilty, so they are not going to be in prison; they are put in a maximum security psychiatric setting to protect society and provide a milieu where they can receive treatment.
Hon Ms Lankin: Perhaps again to relate it to what occurs in our psychiatric institutions today under the Mental Health Act and the rules that are there now, maybe you could make some connections. Because this is not abstract; we deal with these situations today.
Mr Sharpe: Today a patient who is brought in on a Lieutenant Governor's warrant to Penetanguishene, having been found not guilty by reason of insanity, is dealt with in the context of the legislation and the Mental Health Act. If they choose not to have treatment and they are competent -- they may be treatment competent -- then no treatment is given. If they are incompetent, then a substitute is provided, and there is a rights advocate who provides advice to them so that they can challenge the finding of incompetency before a tribunal and ultimately to the courts. After that route is exhausted or if they choose not to exercise it, the substitute comes in and makes a choice for them, just as with any other patient. That has been operating under the Mental Health Act for some years.
Hon Ms Lankin: That is the situation we already experience.
Mrs Sullivan: Let me then move back to this bill. As we move through this bill we see that only the guardian, in terms of substitute decision-making, can ultimately make the decision that a person will go to a hospital or a psychiatric institution.
Mr Sharpe: You are talking about the admission dimension, that normally a substitute consent to treatment would permit the admission to the facility in order to get them the treatment unless they are objecting. If they are objecting, then you have to have a guardian, and if the admission is to a psychiatric facility, the guardianship order must specifically state that there is authority for them to be admitted to a psychiatric facility. This today is a very difficult area. In my view there is no authority short of clear guardianship or committeeship of the person under the Mental Incompetency Act or committal under either the Criminal Code or the Mental Health Act. There is no way a substitute decision-maker can sign someone into hospital. They do not have control of the body.
The Public Hospitals Act, for example, simply says that the next of kin can sign a consent to surgery. That does not mean they can sign them into hospital. It is a very difficult area we are attempting to address here by suggesting that the substitute can also authorize the admission to a facility where it is necessary to get them the treatment, unless the person is objecting, and then we have some protections built in.
Hon Ms Lankin: This is the very issue that organizations and families, like Ontario Friends of Schizophrenics, will want to see dealt with in the legislation, because this is the problem they experience in dealing with members of their families in trying to get treatment at a time when they feel that person needs it. Some of the combinations of things, like the advance directives and other sorts of provisions of the legislation, may assist. But we will hear very clearly, I think, that that organization will feel the legislation needs to be clearer and to provide more rights to families in those situations.
Mr Carr: In the minister's statement you were saying you do not envision too many going before the board. I think you talked about some of the circumstances now. In numbers, what do you anticipate in terms of different cases going before the board? Have you any idea what you will be looking at?
Ms Auski: The experience with the Mental Health Act indicates that the numbers would not be high. I think the minister quoted in her statement that in 1990 there were some 54,000 admissions to psychiatric facilities and there were only 78 hearings on the mental capacity issue before the review board.
In fact there would undoutedly be fewer than that if this package of three pieces of legislation goes forward, because many of those would likely be dealt with for ongoing mental incapacity under the Substitute Decisions Act. You would not have to go back repeatedly. Say with a psychogeriatric patient who was going to be a very long-term patient, you would not have to use the provisions of the Consent to Treatment Act, which is really geared more for people with temporary or fluctuating incapacity.
Mr Carr: I know the minister touched on it and said a little bit in the statement, but in terms of the time frame you are looking at --
Ms Auski: Those that go to hearings?
Mr Carr: Yes.
Ms Auski: The rules here, and as well in the current Mental Health Act, put fairly stringent time frames on when the board must hear the case. I believe it is within seven days that it must convene a hearing, within, I believe, one day it must render its decision and within two days it must have written reasons. So there should be no delay from that part.
There are far fewer cases that then go further to appeal to court. If that happens, and we do not have the control over the court process, there is an interim treatment provision that could take care of serious problems that might occur.
Mr Carr: Is there any interim period before they appear before the board too? My concern is about some of the delays that take place. We say we would like it one to seven and then we anticipate 74 cases, or whatever. This is not unlike what happens to a lot of boards and commissions that get set up, whether it be WCB or the hearings, and we say we are going to do it within a certain time frame, gear up and then for whatever reason we have more. Then, for example, they might not be able to convene and have a hearing in that period of time. There are provisions in here then for something like that, similar to what would happen if they went the other route through to the courts?
Ms Auski: Actually, I should really clarify too. I did not finish my statement about the number of hearings. Clearly that is how many are now under the Mental Health Act. There would undoubtedly be some number more extending it to other areas.
Mr Carr: Sure, I understood that.
Ms Auski: What may be worth while here is, I think, the next part that Gilbert would be talking about, the emergency provisions which deal with people who are mentally incapable. If the need for treatment is sufficiently urgent, the criteria are there. If the person is incapable and you need a decision and you cannot get consent in a prompt way, when is treatment permitted without consent?
Hon Ms Lankin: I think that is one of the last sections of the act that we want to deal with. If we could perhaps touch on that and have some final comments, we might be able to conclude and answer more questions.
The Chair: If we could have one brief question from Mr Malkowski first. He has been waiting a while.
Mr Malkowski: This is very brief. You do not really need to respond. It is just to get your comments on it.
On section 13, under the will to express, let's say through written, oral or any other mode of communication, let's say through blinking of eyes for some people or body language for people who are immobilized, I think we need to include that. For example, a person who is deaf and blind, they may have to use someone who is called an intervenor or someone who uses sign language so that the care provider can make sure they can identify the communication needs of what the person is expressing.
Mr Sharpe: Yes, that is very important. The act should clarify that the consent can be given through any means of communication. I am sure we can do that during clause-by-clause.
Hon Ms Lankin: Perhaps, Gilbert, you could wrap up with the explanation of emergency.
The Chair: Sure, that would be fine.
Mr Sharpe: Section 22 is the emergency provision. This is a provision permitting that health care providers need not follow what has gone before the process for obtaining consent, where the person is incapable, or is likely to suffer serious bodily harm within 12 hours if the treatment is not administered promptly, and it is not reasonably possible to obtain a consent or refusal on the person's behalf, in other words to find a substitute, because delay could result in serious bodily harm.
The primary concern expressed by the medical profession is the 12 hours, as the minister mentioned. If someone has gangrene, you do not necessarily know if he or she is going to lose the limb in 12 or 16 hours. It may be that there is sufficient protection with the concept of "serious bodily harm" and "promptly," because we are dealing with a situation of dispensing with the consent at all and allowing the person to receive the care that is indicated.
Section 24 deals with the protection from liability and there are a number of provisions. I will not take time to run through them now.
Section 28 focuses on applications to the tribunal where certain instructions or wishes are not clear, and there is a process set out for doing that.
The other provisions are, I hope, fairly straightforward and will be discussed, I am sure, in some detail as we get into committee.
I should point out that there have been some questions raised about the new panel or tribunal that is being established. It is going to replace the current panel under the Mental Health Act, although for the purpose of committal hearings under that act it will retain the lawyer, the psychiatrist and the layperson. But for all other purposes in section 35, we are looking at not necessarily requiring those people, though at least having someone who has expertise in determining capacity, where that issue is before the board. This should open up the membership on the board to a host of other individuals who do have expertise.
Mrs Sullivan: You talked about transfer of the one office. Will the psychiatric patients' office also be transferred to the advocacy commission?
Mr Sharpe: I believe that is the intention.
Ms Auski: I believe yesterday the Minister of Citizenship did mention that, yes. That would be in relation to the Advocacy Act.
Mr Sharpe: Finally, section 41 establishes the ability to appeal from the tribunal's decision to a court on a question of law or fact, or both. The regulation-making powers, as I indicated in section 45, allow us to prescribe forms and in particular to prescribe criteria, standards and procedures to be followed by health practitioners in determining capacity.
The Chair: As the minister has indicated, she or her parliamentary assistant will be available during the hearings for any questions that come up further to this.
On behalf of the committee, I would like to thank the minister, Mr Sharpe and Ms Auski for appearing before us. Thank you for taking the time. Seeing no further business today, we will adjourn until Monday, December 16, at 3:30.
The committee adjourned at 1754.