Manitoba Committee Hansard — 19 June 1992 (Legislative Affairs Committee, Sitting 5, 35th Legislature, 3rd Session)

35-3-la5

Manitoba — Debates (Hansard)

MG-8048 Third Session - Thirty-Fifth Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE on LAW AMENDMENTS 39-40 Elizabeth II Chairperson Mr. Jack Penner Constituency of Emerson VOL. XLI No.5 ·1 p.m., FRIDAY, JUNE 19, 1992 Printed by the Office of the Q.-.s Printer, Province of Manitoba ISSN 0713-9586

MANITOBA LEGISLATIVE ASSEMBLY Thirty-Fifth Legislature Members, Constituencies and Political Affiliation NAME ALCOCK, Reg ASHTON, Steve BARRETT, Becky CARSTAIRS, Sharon CERILLI, Marianne CHEEMA, Guizar CHOMIAK, Dave CONNERY, Edward CUMMINGS, Glen, Hon. DACQUAY, Louise DERKACH, Leonard, Hon. DEWAR, Gregory DOER, Gary DOWNEY, James, Hon. DRIEDGER, Albert, Hon. DUCHARME, Gerry, Hon. EDWARDS, Paul ENNS, Harry, Hon. ERNST, Jim, Hon. EVANS, Clif EVANS, Leonard S. FILMON, Gary, Hon. FINDLAY, Glen, Hon. FRIESEN, Jean GAUDRY, Neil GIUESHAMMER, Haro ld, Hon. HARPER, Elijah HELWER, Edward R.

HICKES, George LAMOUREUX, Kevin LATHLIN, Oscar LAURENDEAU, Marcel MALOWAY, Jim MANNESS, Clayton, Hon. MARTINDALE, Doug McALPINE, Gerry McCRAE, James, Hon. MciNTOSH, Linda, Hon. MITCHELSON, Bonnie, Hon. NEUFELD, Harold ORCHARD, Donald, Hon. PENNER, Jack PLOHMAN, John PRAZNIK, Darren, Hon. REID, Daryl REIMER, Jack RENDER, Shirley ROCAN, Denis, Hon. ROSE, Bob SANTOS, Conrad STEFANSON, Eric, Hon. STORIE, Jerry SVEINSON, Ben VODREY, Rosemary, Hon. WASYL YCIA-LEIS, Judy WOWCHUK, Rosann CONSTITUENCY Osborne Thompson Wellington River Heights Radisson The Maples Kildonan Portage Ia Prairie Ste.

Rose Seine River Roblin-Russell Selkirk Concordia Arthur-Virden Steinbach Riel St. James Lakeside Charleswood Interlake Brandon East Tuxedo Springfield Wolseley St. Boniface Minnedosa Rupertsland Gimli Point Douglas Inkster The Pas St. Norbert Elmwood Morris Burrows Sturgeon Creek Brandon West Assiniboia River East Rossmere Pembina Emerson Dauphin Lac du Bonnet Transcona Niakwa St. Vital Gladstone Turtle Mountain Broadway Kirkfield Park Ain Flon La Verendrye Fort Garry St.

Johns Swan River PARTY Liberal NDP NDP Liberal NDP Liberal NDP PC PC PC PC NDP NDP PC PC PC Liberal PC PC NDP NDP PC PC NDP Liberal PC NDP PC NDP Liberal NDP PC NDP PC NDP PC PC PC PC PC PC PC NDP PC NDP PC PC PC PC NDP PC NDP PC PC NDP NDP

100 LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON LAW AMENDM ENTS Friday, June 19, 1992 nME-1 p.m. LOCA nON-Winnipeg, Manitoba CHAIRPERSON-Mr. Jack Penner (Emerson) ATI ENDANCE-11-QUORUM-6 Members of the Committee present: Hon. Messrs. McCrae, Orchard Messrs. Cheema, Chomiak, Edwards, Helwer, McAlpine , Ne ufe ld, Penner, Rose, Ms.

Wasylycia-Leis WITNESSES: Bill 73- The Heal th Ca re Direc tives an d Consequential Amendments Act Jaques Belik - Manitoba Medical Association Anthony Dalmyn - Canadian Mental Health Association Barbara Wiktorowicz - Alzheimer Society of Manitoba John Oldham - Private Citizen Gordon Mackintosh -M anitoba Association for Rights and Liberties Bill 75- The Hea lth Ser vices In su rance Amendment and Consequential Amendments Act Gordon Mackintosh - Manitoba Association for Rights and Liberties Mary James - Private Citizen Elizabeth Wood - Private Citizen Pat Cherter - Private Citizen Written Presentation Submitted: Scott Cleghorn -Manitoba Medical Association MATTERS UNDER DISCUSSION: Bill 71 - The Retirement Plan Beneficiaries Act Bill 73- The Health Care Directives and Consequential Amendments Act Bill 75- The Heal th Services Insur ance Amendment and Consequential Amendments Act *** Clerk of Commit tees (M s.

Patricia Chaychuk-Fitzpatrlck): Good afternoon. Will the Standing Committee on Law Amendments please come to order. We must proceed to elect a Chairperson. Are there any nominations? Hon. Donald Orchard (Minister of Health): I would nominate the member for Emerson. Madam Clerk: Mr. Penner has been nominated. Are there any other nominations? Seeing none, Mr. Penner, you are elected Chair. Mr. Chai rperson: Order, please. Will the Standing Committee on Law Amendments please come to order.

This afternoon, the committee will be considering three bills: Bill 71 , The Retirement Plan Beneficiaries Act; Bill 73, The Health Care Directives and Consequential Amendments Act; and Bill 75, The Health Services In sur ance Amendment and Consequential Amendments Act. * (1 320) It is our custom to hear briefs before the consideration of the bill. What is the will of the committee? Agreed. To date we have had 1 0 presenters registered to speak to the bills and I will read the names aloud. The list is Dr. Jaques Balik, Manitoba Medical Association; Mr. Bill Martin, Canadian Mental Health Association; Dr. A.J.

Kirshen, private citizen; Ms. Barbara Wiktorowicz, the Alzheimer Society of Manitoba; Mr. John Oldham, private citizen; and Mr. Gordon Mackintosh, the Manitoba Association for Rights and Liberties. For Bill 75, The Health Services Insurance Amendment and Consequential Amendments Act, there will be: Mr. Gordon Mackintosh, the Manitoba Association for Rights and Liberties; Ms. Mary James, private citizen; Ms. Elizabeth Wood, private citizen; Ms. Pat Cherter, private citizen. There will be one written submission: Mr. Scott Cleghorn, Manitoba Medical Association.

At this time I will canvass the audience and ask that if there are any other persons present who are

10 1 LEG ISLATIVE ASSEMBLY OF MANIT OBA June 19, 1992 interested in making a presentation to any of the bills that are before the committee, please contact the Clerk of Committees to have their names added to the list. I would also ask any person requiring photocopies of their briefs to be made to also contract the Clerk. If there are any persons requiring photocopies of their bills, the Clerk will accommodate you. I would also like to advise the committee that a written submission has been received for Bill 75, which I indicated. The submission is from Mr.

Scott Cleg horn on behalf of the Manitoba Medical Association. This submission has already been distributed for the committee mem bers. Is there agreement from the committee to have this submission Included in the committee Hansard for this meeting? Agreed and so ordered. Did the committee wish to impose time limits on the presentations? The answer is no. There will be no time limits, although I would urge all presenters to be as brief as possible for the sake of allowing all presenters to make their presentations today. We thank you. I would now call upon Dr. Jaques Be Ilk, Manitoba Medical Association.

Bill 73- The Health Care Directives and Consequential Amendments Act Dr. Ja ques Bellk (Manitoba Med ical Association): Honour able ministers, comm ittee MLA members, ladies and gentlemen, on behalf of the MMA, we wish to thank very much this committee for giving us the opportunity of making a presentation on Bill 73, The proposed Health Care Directives and Consequential Amendments Act. We wish to firstly say that we strongly support the passage of such legislation, and we must commend the work of the Minister of Justice (Mr.

McCrae) and the Law Reform Commission of Manitoba in respect to the proposed legislation. We wish, however, to address five important aspects of this present bill that we believe require amendments before it is passed into law. The five items that I will be referring to are first, requirement for a proxy; second, clarification of the physician's right to deny futile treatment when requested; third, consent for organ or tissue donation; fourth, rec ommenda tion for a witn ess; and fifth, requirement the directive be dated. I will now briefly address each of the issues.

Requirement for a proxy being the first one-this is certainly our primary concern as an association, and we believe the proposed legislation will be greatly strengthened by addressing the issue of a proxy decision maker. We must consider for that the need for a signed proxy decision maker under two different circumstances, the first one being, when an advance directive is available, and the second, when no such document is available or has been completed.

When an adv ance direc tive is ava ilab le, according to the proposed bill, completion of an advance directive will theoretically reassure the individual or the maker of control over his or her medical decisions while incompetent. In reality, we believe that is not so. Only two-thirds of directives, according to a recently published study in the United States, are indeed followed. The reasons for this lack of 10 0 percent compliance with directives is related to the fact that dir ectives not alw ays address the specific circumstances that the maker will find his or herself in when incompetent.

Directives are often poorly written and often of ambiguous

interpretation. I wish to briefly take you throu gh a medical example that illustrates our point. Consider a patient with early stages of Alzheimer's disease, who rights an advance directive with clear request for no life support if he or she becomes incompetent. Consider that individual, the same day that he or she has written that directive, suffers an accidental fall, is taken to the emergency room, and is found in need of ambu latory support because of a head concussion.

The physician in charge of the care of that patient will be faced with the advance directive on one hand, and perhaps with information from relatives, friends or others, that this individual, that very same day that he signed and completed his directive with the wording as I alluded to requesting no life support, was in fact planning on going on an around-the world cruise next month or the following month, waiting for his grandson to be born and very much willing to partake in that happiness.

The physician would have to make a decision between following the directive as it reads-it would imply very clearly, no life support-even though that head concussion could have been an event for which the patient will recover within two or three days perhaps, or a little longer, and return to a stage that he or she apparently found to be comfortable

June 19, 1992 LEG ISLATIVE ASSEMBLY OF MANITOBA 102 and worthwhile living, or elect to interpret the directive as meaning, most likely the individual meant if he or she were to become incompetent because of his disease, no life support should be provided when needed. It is a typical scenario where the physician is left with interpreting directives at the mercy of not following what is stated, and therefore, be at risk of being sued later for not complying with the statement versus interpreting the directive, and therefore, perhaps defeating the whole purpose of . the directive.

A proxy decision maker in a situation like that will very clearly be able to perhaps balance out the writings, and perhaps interpretthe instructions in the directive, allowing the physician to then promote treatment according to what the patient would have wanted had he or she been allowed to express his or her wishes at that time. The second scenario is when no directive is available. The reality of advance directives, living wills and durable powers of attorney in the United States is that only 15 percent of individuals have completed advance directives even though it is available in 49 states.

We do not expect, in Canada, in Manitoba, any better figures than that. The reality of it is such that only a minority of individuals will take advantage of legislation such as ours that would allow them to complete advance directives or appoint proxy decision makers.

If an individual were not to have an advance directive and found to be in an incompetent state, then we would very much be in a situation similar to what we have nowadays, where physicians are often confronted with having to make decisions without quite knowing what is in the best interests of the patient, or having to rely on opinions and suggestions of family memb ers without quite knowing how useful, or how much that represents truly the patient's perspective.

We very much propose, therefore, that the legislation should be amended for an adult person who lacks capacity to make a health care decision, that the decision be made to appoint a proxy defined as the first-named person or groups of persons from a list, with heading the list being the patient designated proxy, if there was one, followed by a nearest relative hierarchy, such as found in

Section 2 of The Mental Health Act. The second item of our presentation deals with futile treatment.

Section 7 of Bill 73 precludes a patient and a proxy decision maker from medical dem ands for treatment that patients, when competent, will not be able to make. As clear as that may sound, the reality is that, nowadays, many competent patients and their families often present demands for futile treatment.

In fact, in a recent study in the United States, it has been shown that at least 30 percent of surveyed individuals, when asked what sort of care they would like for themselves when found in a persistent vegetative state, irreversible condition associated with brain death or lack of cortical brain function, responded that they wish every possible life support applied to them. We fear that if the act were to be passed as such, patients will nevertheless continue on requesting in their advance direc tives, futile treatments.

Physicians, because of fear of future litigation, would grant either on a temporary or worse yet, in an indefinite way, treatment that would otherwise be medically inadequate or futile. We propose that this could be prevented by a clear and unambiguous statement in legislation denying the request for futile treatments. * (1 330) The third item of our presentation deals with organ donation. Presently, it is stated that the proxy under

Section 14 (c), does not have the rightto consentfor removal of tissue from the maker's body while leaving for transplantation purposes to another person. The concern raised in regard to this

section deals with the fact that, in regard to The Human Tissue Act, where it is clear that the nearest relative is allowed to consent for organ removal or tissue removal when death is inevitable, or has occurred, the reading in this

section may lead others to interpret as, no organ donation is allowed, as opposed to what we believe this

section is meant to address, that is to avoid or prevent proxy decision makers from authorizing inter vivos organ donation. We propose that the act be amended to clearly identify that the prohibition is against inter vivos organ donation as opposed to any organ donation that could occur, as The Human Tissue Act already allows nearest relatives to authorize for. The next item deals with recommendation for a witness. The bill, as presently stated, does not require an individual filling an advance directive to

103 LEG ISLATIVE ASSEMBLY OF MANIT OBA June 19, 1992 provide for a witness that the directive was in good feal. We believe that a witness would address two very important issues: No. 1, will reassure the physician or any other health care profes sional attending to the patient while incom petent, that individual was indeed competent when completing the advance directive; No. 2, would ensure that the directive had been completed, and therefore , would be made available when the maker was indeed held incomp etent.

We also believe that the bill should clearly state that no directive should be made under undue duress or influence. The last item that I would like to address deals with the need for dating the advance directive .

Here, we believe that by requiring the directive to be dated, the age eligibility could be confi rmed, that indeed the individual when the directive was written was over the age of 16 , as clearly stated in the act; that in case more than one directive was available, that the latest directive could be clearly identified; and to possibly ascertain competence based on historical evidence from the point of view of patients who do have progressive chronic diseases that lead to incapacitation of their memo ry and/or brain function, to be able to ascertain that , in fact, when the directive was written, that individual was competent and could understand what he or she clearly identify in that document as being his or her preference toward treatment.

With that, I thank the committee very much for listening to the presentation, and I am willing to address any questions or issues. Mr. Chairperson: Thank you, Dr. Belik. Ms. Judy Wasylycla-Lels {St. Johns): Mr. Chairperson, I would like to begin by thanking Dr. Belik on behaH of the Manitoba Medical Association for taking the time to be here this afternoon and presenting a very thorou gh brief with some clear recom mendations for us to consider. I have some questions, first a general one.

Although there is no law presently before us, or in place in terms of living wills or advance directives or desig nated decision makers, obviously, many people have been doing it on their own, making living wills and putting out directives. Is there enough of an occ urrence of that, to date, for you to be able to tell us what the experience is here in Manitoba with such directives or living wills? Can you make any generalizations in terms of langua ge cl arit y of di rective dile mma s for physicians, how they have been handled and so on? Mr. Bellk: Thanks for the question.

We certainly do not have any data in that respect. You may know that perhaps. I am only aware of the Misericordia Hospital, for instance , that puts out a pamphlet with the advance directive form and makes it available to patients being admitted and encourages them in some sense to fill them out. All the other advance directives, or advance directives like documents that one may encounter in Manitoba, were all based on personal initiatives. I clearly cannot give you an answer to how often they are appropriate or not.

Based on the data coming from the United States, where advance directives have been in existence for a much longer period of ti me, it is clear that most advance directives are not clear enough when it comes to apply to the situation that the individual has found when incompe tent.

Meaning either the directive is too general and, therefore , it is very difficult to determine in that particular circums tance what the individual would have decided as being in his or her best interest, or the directive is so detailed that it becomes impos sible to appropriately follow and, therefore, it is often dealt in a manner that does not completely address all rules and items listed in it. Ms. Wasylycla-Lels: Mr. Chair person, I appreciate that.

It is the difficulty in being able to make any generalizations from the sporadic use of living wills or directives, and I apprecia te the information you have been able to provide . It is clear from your-or at least I am going to make the conclusion from your presentation-first of all that the MMA is stro ngly supportive of this initiative generally, but has some concerns; and then you clear ly reference a couple of dilem mas for physicians. It seems that they are on both ends of the spec trum.

The dilemma of a directive that is maybe vague but however it clearly calls for no intervention , and the dilemma I think you are posing is that it means you could be prolonging or saving life but for that directive. Then on the other end you reference , I believe, the dilemma of a directive that very specifica lly calls for intervention of some sort that could very well be in the best judgment of the physician and the medical profession futile. Certainly, that poses an interesting dilemma in our whole health care reform debate when we are talking about trying to put in place standards and

June 19, 1992 LEG ISLATIVE ASSEMBLY OF MANIT OBA 104 controls around medical intervention so that unnece ssary futi le proce dures, drugs, interventions, tests and so on are not occurri ng. I will be interested to know how we sort through that dilemma. I would like to ask you the question, specifically some advice in terms of how we amend this legislation or bring in some changes that will address those concerns. You reference the use of a proxy . YQU also talk about a clear statement, an unambiguous stat ement in terms of the futile intervention. Could you tell us, have you looked through this bill?

Have you got any specific areas where you think we should be looking at an amendment and precis ely, how we could-perhaps we could do both in one fell swoo p? Mr.Bellk: We believe, for the very reasons that you alluded to before, that implementing the law in such a way where an individual will always have a proxy decision maker unless he or she specific ally, in an advance directive, refuses either certain individuals or no one to represent him or her.

That could be done by taking into account this list, a hierarchical list similar to what is already present in The Mental Health Act where a proxy is appointed according to a certain hierarchy. We believe that advance directives in reality really are not helpful unless you as a physician have someone that you can discuss with, interpret the wording correctly and achieve a consensus as to what the individual really would like done under these circumstances. I think an analogy can be drawn to an individual having a day in court without being allowed to speak and without having a defence lawyer to plead his case.

It is really being left with the words without any

interpretation to it, and most often the words are simply not enough. In regard to the futile treatm ent that you alluded to, we believe physicians need to be clearly told that they are not obliged to provide futile treatment. We feel that the reality of Manitoba in 1990 is that even though all physicians should know that we are not obliged to provide futile treatment, there are perhaps as many as 1 00 patients in persistent vegetative states, or the likes, sitting in health care fac ilities across Manitoba because individuals feel uneasy about this conti nuing care that in most cases is clearly futile.

The reality nowadays is physicians should know better, but do not. Perhaps this act, with a sentence or two clearly stating that physicians ought not to provide futile treatment even if requested, will get a clear message and would not have to interpret

an act. Ms. Wasylycla-Lels: I have a couple of questions, the fi rst going back to the first Issue about ambiguous unclear statements or directives. You have talked about the proxy and the advance directives. I am wondering if you are suggesting that this law, this proposal be amended to ensure that doctors who make decisions to prolong or enhance life, when the directive is very ambiguous, unclear, not be held liable for that decision. Are you asking that kind of statement to be put in this legislative propos al? Mr.

Bellk: I guess we are mostly concerned with the conceptof futiletreatm entin regard to ambiguity. I think, and this is my personal opinion, the act is clear enough in regard to prot ecting physicians for as long as he or she follows the directive to the best of his or her understanding. I do not think there is any ambiguity in that respect. *

(1340) Where I think there is ambiguity is on

Section 7, that claims that a maker does not have while incompetent any more rights than while competent. Sure, one can interpret that to mean, well, if you know that a patient who is competent has no right to request anything, that it is futile, therefore , when he or she is incomp etent, he or she does not have that right too. Why not say it clearly, I guess that is our point. Ms. Wasylycla-Lels: Just a question on your rec omm endation pertaining to The Human Tissue Act. Your brief calls for consistency between the legislative proposal before us and The Human Tissue Act.

I understand your presentation to mean that when there is a clear directive, that takes priority over The Human Tissue Act. I am wondering if that is your understanding and that is your positi on, and secondly, if you still feel we need to have an amendment that addresses the different aspects of the two acts. Mr. Bellk: What we were particularly concerned with is

Section 14(c), where it reads the removal of tissue from the maker's body while living. We ourselves were not quite certain as to the meaning

105 LEG ISLATIVE ASSEMBLY OF MANIT OBA June 19, 1992 of "while living". We interpreted that to mean inter vivos donation. If that is not the case, we would strongly advise, or suggest, that the act be amended to allow proxy decision makers from having the same rights that The Human Tissue Act presently conf ers. Otherwise, we will be faced with a very unusual situation where, say, for instance, a spouse is the proxy decision maker of an individual. That spouse, as a proxy decision maker, cannot author ize, say a kidney organ donation, however, as a spouse, he or she can, and that does not quite make sense.

We feel that if The Human Tissue Act allows the nearest relative to confer the right for organ donation near that or after that, that the proxy should have the same right. If, in fact,

Section 14(

c) relates to inter vivos donation, that should be clearly spelled out. Nowadays, we have a major problem retrieving enough organs for transplantation for patients who are in desperate need of it. We are afraid that if this legisla tion is passed with a rather obscure sentencing, physicians may again be deterred from approach ing proxy decision makers and requesting organs based on their poor understanding or

interpretation of this bill. Mr. Gu izar Cheema (The Maples): Mr. Chairperson, I just want to thank Dr. Belik. I have known him for a long time. I worked with him, and he was my teacher at the Children's Hospital, so I know his capabilities as a teacher, physician and educator. Certainly, I want to first point out to him that we did bring our bill, it was Bill 16. That was basically a draft from the Manitoba Law Reform Comm ission. The minister has brought Bill73, which is almost a mir ror image of that bill, but there are certain additions there. I just wanted to put that on record. I think it is very important.

We were disappointed, and I am not going to hold my disappointment here, because the Minister of Justice (Mr. McCrae) did not mention in his speech, not even once, that the bill was already in front of the House as a private member s' bill. I feel obliged to mention that. I was disappointed. Certainly, I want to address some of your concerns which we have discussed. The first one, your point of how we are going to teach Manitobans that we have a law.

I think, as you have said, in the States, there are only 1 0 to 15 percent of people who are aware of their laws, but we have Manitoba health, and I think through various ways, we can educate . It can be done through your offices or through the other prof essional agencies or through the Manitoba Health Services Commission. It can be no tified. I do not think that is going to be the major issue. My main concern here is, as you have said, in terms of your example of a patient who has Alzheimer 's disease and signed a proxy this morning, and after a few hours, had a head injury.

If it is not very clear in his health care directive what should be done, whether life support-what is life support? I think that can be qualified because still the health care providers will have to function under the broad area of health care guidelines. I do not think it is possi ble in any guidelines to put whether you can do a, b, c, d or f. I think it should be up to the judgment of the health care prov iders. As you know, it is already being done, because the law is going to simply protect health care profes sionals, but these things are being done on a daily basis.

That will address your second problem, what is the next issue of futile treatment. It depends upon the definition of futile treatment. If you go across this pro vince and talk to many other individuals, everyone has their own definition. I think it is going to be very risky, as a lawmaker, to put something into writing which is a futile and which is not. I think It should be up to the judgment of the health care providers, as long as they are working within the framework of the guidelines, so we can certainly, at the commi ttee stage, look into that to make sure that your concerns are met.

The third one, which I am really concerned about is there Is a

section in

Section 22 of this bill, and we are going to ask the minister, when we are going clause by clause, to make sure to say that when the other one gets proxy, or the health care directive has acted in good faith according to the wishes expressed in the living will, and not contrary to the wishes of the person who has made the will, they should be protected, and that is not very clear. I think it needs to be very well defined because that could expose many of the concerns you have. It is so vague, and we want it to be very specific. That was not even part of my bill when we brought that bill forward.

I take your concerns very seriously, and our caucus will try to address some of them. I think, as you know, that this is the first bill of this kind in this country. When you are drafting

June 19, 1992 LEGISLATIVE ASSEMBLY OF MANITOBA 106 such a major part of the health care , or our living system, which actu ally should have come a long time ago, and we are talking about living wills, we take care of everything else, but we do not take care of our health. I think we must say that at least the gov ernment has done that. The government has reco gnized a very major aspect. Cer tai nly, with my disappointment, I will also say that the minister has done a good job in terms of at least taking the initiative. When we have this bill ac tually in a practical sense, we are going to have some difficulties.

I think that probably it will be a process of coming back and having some mo re amendments done in the long term, but certainly your concern will be addressed at the commi ttee stage. I would like to know from you: What is the defin ition of futile trea tmen t? How do you rec ommend that we should put in the wording in this bill? Mr. Bilek: Perhaps if I left the impression that we wish the act or the bill to define life support or futile treatm ent, it is not quite our Intention. What we feel is that it ought to be clearly spelled out that futile treatment ought not to be provided.

I quite agree with you that evidently the definition of futile treatment is a difficult one. It varies, and we physicians have a great deal of difficulty ofte n addressing it in regard to specific patients, but we believe the broader message is important. If it is not clearly identified that physicians do not have the obligation to provide futile treatm ent simply because the Individual requested in his or her directive , or because the proxy decision maker claims that he or she wanted it that way, that is the most important, I guess, battle to win. The same holds true for life support.

We do not believe that one ought to Identify life support. The issue is truly interpreting directives, knowing what exactly the individual had in mind when the directives were written and how you as a physici an, or health care prof essional, will best represent that individual by having simply the directive to follow. Mr. Cheema: Mr. Chairperson, the other concern expressed by Dr. Belik was the amendments needed to make sure The Human Tissue Act is reflective of what it had been in the past and this law really excluded that part.

That has been pointed out not only by you , but also by the Manitoba Association for Rights and Liberties. I think that needs to be addressed in terms of making sure that the proxy does not exclude that part, so I think we should take that seriously. The other recom mendation is of a witness and I think that is very important and probably we can take care of that also. The date part, I was not aware of that, that the date part and the time was also missing. l thlnk those are the important things.

I am sure the minister's office has an excellent legal staff and they can advise us how to address those Issues. • (13 50) I want to express my thanks that you have responded to our request initially. The MMA did just send me a note that you will be mak ing a presentation, and certa inly we will take your concern very seriously. Thank you. Hon. Donald Orchard (Minister of Health): Dr. Belik, thank you for your presentation. Two points that I would like to make, we have rec ognized the concern over the issue you have mentioned of dating.

It is the intention of the government this afternoon, to propose an amendment that would address that issue. Secondly, in term s of the impact on The Human Tissue Act, Mr. Chairperson, with your concurrence , and of course with leave of the committ ee, which is required because we are not dealing with The Tissue Act here, and we have our little rules that we have to make sure we abide by. It would be the intention , with your permission and leave of the committee, that we would introduce the appropriate amendments to address the concern around The Tissue Act. Dr.

Belik, I have to say that I am quite intrigued with the futile treatment because that becomes quite an interesting issue. I see as difficulty, and I checked with legal counsel to ask whether there was in any existing statute, their knowledge of a definition around futile treatment. As you have indic ated, and they have indicated , none exists. I hate to be so crass, but I can see a real lawyers' wonderland created if we tried to put a definition around futile treatm ent. We could open up a whole Pandora's box.

I understand what you are saying, sir, and I think that it is laudable that the MMA would be advancing the concern. Can I ask you, sir, if it is possible within the MMA Ethics Committee, to attempt to get their minds around what might be definable as futile treatment, because I would ma ke the conclusion that

107 LEGISLATIVE ASSEMBLY OF MANITOBA June 19, 1992 experience will tell us whether this act will be used in reality of the coin reverse of what we intended-! think what the Law Reform Commiss ion Intended. I think, if I can speak for the intention and presentation by yourselves and others who were consulted by the Law Reform Comm ission in making the report, the idea, I believe, was advanced that individuals should be able to empower health care prof essionals to not provide heroic measures.

You have drawn the circums tance where they may use this act to empower every heroic treatm ent, futile treatment, as you have indica ted. I think experience will tell us whether the Manitoba circums tance would lead to much use of this new legislation in the latter case , at which time, the Legislature wou ld be well-served by any advice you might be able to provide us on defining futile treatment, or whatever would be the appropriate ph rase ology, so that we migh t consider amendments at a future time. I thank you for your presentation, sir. Mr. Bellk: You are welco me. Mr.

Chairperson: Do you want to respond , Dr. Belik? Mr. Bellk: Well, I guess you touch in a very difficult issue the concept of futile treatment. I would just like to make one quick comment. The reality o f medicine is, we are making a distinction between appropriate and futile treatment every day in medicine. When we decide to treat with treatment A versus treatment B, or not to provide treatm ent A, we are making that distinct ion. It is very hard when one has to put in words and has to clearly define, because it involves the whole concept of quality of rrte.

One could argue, for instance, that a patient in persistent vegetative state , after a two-m onth period, has been shown to have an irrecoverable condition. That patient will never reco ver brain function. Howev er, some may argue, well, there is still quality of life in lying there and depending on others for every possible support. I think that is where the difficulty lies-how to define quality of life, more so, how to define futility of treatment because I think we all agree on futility of treatment concept. What we do not agree as physicians, is how good life has to be before we are willing to support it.

Hon. James McCrae {Minister of Justice and Attorney General): Mr. Chairperson, as a court esy to the honourable member for The Maples (Mr. Cheema), I think I can acknowledge that it would have been appropriate for me to recognize that the honourable member for The Maples recognizes a good idea when he sees one. He has the good sense to know a good initiative when he sees one. So indeed, the honourable member did have, before the Legislature, a private memb ers' bill putting forward virtually the same thing that we are.

I say that, and I do not like to take away from what I have just said either, but I have to say that this gov ernment, and all of us, should perhaps recognize the wisdom of the gove rnment of Manitoba for reactivat ing the Law Reform Commi ssion. The Law Reform Comm ission did an awful lot of work in this area and brought us to the point that we are today. While I guess it is beefs and bouquets, I do acknowledge what the honourable member has done, but I also say that It was a wise gove rnment that reactivated the Law Reform Comm ission as well. Ms. Wasylycla-Lels: I am not about to enter this discussion.

I just thought of another question, that while Dr. Belik is with us, I would like to ask him. I am sure that there will be issues raised throughout this afternoon about whether or not there should be anything in legislatio n requiring a physician to determ ine if there is a directive . I would like to ask Dr. Belik, based on the legislation as it now stands, how physicians, how the MMA, how individual physicians will interpret it in terms of, will they out of this immediately demand, or ask for a directive if one exists, or will they wait and see if one is produced volunt arily?

What is your sense, and should we be looking at any changes in that regard? Mr. Bellk: I believe that physicians would certainly be very pleased to request a directive or inquire about a directive , but we are very pleased by the way the act reads in putting the onus on the individual in having to produce or make the advance directive known for it to be taken into consideration. *

(1400) We believe it would be very hard for any health car e pr ofe ssional to conduc t a thorough investigation to completely rule out a possibility that a directive has been written and it is in some safe box somewhere that ought to be read before decisions be made. We believe that it should be upon the individual to either carry in his or her

June 19, 1992 LEGISLATIVE ASSEMBLY OF MANITOBA 108 pocket, or identify whichever means that will allow that directive to become known if she or he were to be in need of. Mr. Cheema: Mr. Chairperson, I just want one thing to be on the rec ord, that I take the Minister of Justice's word very seriously because I think it is very important. We did have initiative Initially, and certai nly, you are the majority, and you are the gov ernment, and they have to at least recognize the importance. Certainly one point I want to ask Dr.

Belik, and probably he can explain to the commi ttee, that right now even though it is not a part of law, these things, in fact, are being don e. That differentiates us from the United States. H what is happening in Manitoba and Canada was happening in the United States, there will be a lot of lawyers who will be very rich. We have a very different approach to the health care system. This will give protection to the physicians, and also will give dignity back to the patient.

The other issue which is quite important is our elderly population, which you know, when their family members move away, it becomes very tough for the health care provider to make decisio ns. H you have something in writing that will not only give security for the health care pro vider or institution, plus it will also give comfort to the family member s who are not, at that time, in a part of the commu nity. They may be somewhere else. We have come across those problems, and those are the practical issues. I am sure you do agree with them. Mr. Chairperson: Thank you very much, Dr. Belik.

Did you want to respond to that? Mr. Bellk: No, I just wish to thank you for the comments. I fully agree with what you say. Mr. Chairperson: Thank you very much for your presentation. Before we proce ed, I want to relate an incident that happened on our farm to the committee. We do have a C.B. radio on our fa rm. We operate most of our equipment by radio, at least we co mm unic ate by radio, and there is such a thing as skip, which is interference with the two people who talk, and it comes from out side. I would suggest to comm ittee member s that I am encountering a bit of skip in the committ ee at this time.

I would suggest that we turn down the squelch just a wee bit and maybe the two people who should be commu nicati ng can be heard. Thank you very much. I will now call on Mr. Anthony Dalmyn, who will be replacing Mr. Bill Martin, of the Canadian Mental Health Asso ciation to come forward please. Mr. Anthony Dalmyn (Canadian Mental Health Association): Mr. Chairperson , there is no written presentation for the Canadian Mental Health Associa tion. My presentation is devoted primarily to commending the government as well as the member for The Maples (Mr.

Cheema) for his private members' bill and indeed the previous government, the current oppositi on, for its attitude on Bill 73. Bill73 is a good piece of legislation. It impacts on The Mental Health Act in a way that Is slightly different than the Law Reform Comm ission recommended, but the Canadian Mental Health Association sup ports the way In whic h this legislation operates. The members of the comm ittee will remember previous sessions on The Mental Health Act, particularly the sessions last summer on Bill 5. Bill 5 left a loose end.

When you consider the situation of a person who goes to a psychiatric facility, The Mental Health Act provides that person has the right, while competent, to consent to treatment or not to consent to treatment or refuse treatment. The act provides that if the person is not competent and is found to be not com petent upon a proper assessment, then treatment decisions will be made by the nearest relative or by the Public Trustee. The introdu ction of nearest relative was one of the innovations and reforms of Bill 5 last year.

The commi ttee will recal l that there was a concern by certai n segments of the population of health care consu mer s that that was not good enough. Parti cularly, the victi ms of fam ily abuse who experience ongoing psychiatric problems were repelled by the possibility that a family member who had contributed to their situation could be the person designated by law to make treatm ent decisions for them. That population, with the support of the Canadian Mental Health Asso ciation, asked very strongly for the right to appoint proxies.

The minister made a commitment to study the situation-! am referring to the Minister of Health (Mr. Orchard}-upon receipt of the Law Reform Commi ssion's report. The minister has kept his word .

Section 28 allows a mental health consu mer to appoint a proxy to make treatment decisions and

109 LEGISLATIVE ASSEMBLY OF MANITOBA June 19, 1992 gives the proxy precedence over the nearest relative or the Public Trustee. That is a good reform . The gov ernment and all other interested parties are to be commend ed for taking the legislation this far, and we urge you to take the legislation to com pletion on that issue. We have a question of clarity of language. The Health Care Directives Act at large says that a health care consumer can have a directi ve, which can simply be a piece of paper, which gives directi ons for health care, or the directive can add the appointment of a proxy.

The or dinary health care consumer can simply go on the basis of a card or a piece of paper. That is a situation that has been before the cour t. For example, a number of people of the Jehovah's Witnesses faith carry wallet cards refusing certain types of treatment involving blood products. This is obviously not desirable in the context of The Mental Health Act. The legislation operates on the basis that there is always a decision maker to stand in the shoes of the incom petent patient, whether it be a proxy, a nearest relative or the Public Trustee.

Nevertheless, as The Mental Health Act now reads in subsection 24.1(3), a consent giver, be it proxy, once these amendments are through, or a nearest relative or the Public Trustee, should attem pt to determine the known wishes of the patient while competent. A patient who has had previous medical treatment may have established a suitable or successfu l pattern of practice that they would readily consent to, to the exclusion of others. They would want to consent to some things, and not others. They would make their wishes known. I suppose if there is a mixed message in the legislation, it is this.

Section 3 of Bill 73 says The Mental Health Act prevails. We then have The Mental Health Act amendments which say that, a proxy appointed under The Health Care Directives Act is recognized, which carries the implic ation, perhaps, that a directive has no status. I think if it came to court, but it should not have to come to court if the legislation is sufficiently clear, a directive would express the patient's competent wishes, and should be recognized for the purposes of 24.1(3).

I have had the privilege of a discussion with the Attorney General's staff, and I think I have made the point to them, and I make it to this commi ttee. Perhaps a court will say, a directive , obviously, is a good expression of com petent wishes for the purposes of 24.1 (3). There is a chance it is not. In any event, this legislation is to be read, not necessari ly by lawyers, judges and courts, but by the public, by pr act ising phy sicians and psychiatrists. It should be as clear as possible. It should be proactive .

It should be crystal clear that in considering the prior competent wishes of an individual for the purpose of The Mental Health Act, any directive that the person made, should be given due weight and considera tion. The other area of comment on The Mental Health Act refo rms,-let me stop there. It is a commen t on a

section within the main body of The Health Care Directives Act which has some impact on mental health practi ce.

Section 21 of Bill 73 will provide that no person is required to inquire into the existence of a directive or of revocati on of a directive . The Law Reform Commis sion's report and draft bill are somewhat ambivalent on this. Recomme ndation 33 of the Law Reform Commission had said that the onus should be on a person or patient who is the maker of a directi ve. We then mo ve through the Law Reform Commis sion report and we see them shifting from a wor ding that says, the onus is on the patient, to, there is no onus on the health care pro vider.

There was a related recommen dation in the Law Reform Commiss ion's report saying that no health care provide r can be liable for ignoring a directive they know nothing about, which has been carried forward into paragraph 22(

b) of Bill 73. *

(1410) The Canadian Mental Health Associati on has no difficulty with the idea that a patient bears the ultimate onus of commu nicating the contents of a directive or the appointment of a proxy to the physician or health care provider who is attending them. The Canadian Mental Health Associati on has no problem with paragraph 22(

b) that says, nobody Is liable for not acting on something that they know nothing about. The question is the gap in there. When a disabled person comes into a psychiatric fac ility, they commun icate some things, they do not commu nicate ot hers. The person may have a file. There may be a record of who the proxy is. There may be all sorts of indications of prior competent

June 19, 1992 LEGI.SLATIVE ASSEMBLY OF MANITOBA 110 wishes. There is material right there that can be readily investigated. One would suggest and expect in this pro vince, that the ethical and legal situation is that a physician would make reasonable inquiries. The previous witness before this comm ittee, Dr. Belik, said, the medical profession collectively, ethically and legally has no problem with the idea of making reasonable inquiries, but does not want to be propelled into investigating to the nth degree. My comment Is that there is a problem in the wording of

Section 21. Somewhere along the way, the original intent of the Law Reform Comm ission, which was that there is no onus on the maker, has been turned into an idea that there is a statement in legislation that nobody is expected to inquire. There should be reasonable inquiry. I do not know whether one would want to legislate, as they do in the draft bills in Ontario, that there is a positive legal obligation on the physician to inquire. I think the reaso nable protection of the physician is ac complished simply by deleting 21 and resting on 22(

b) and on sound clinical practice, and on the ge neral law that applies to health care, or alter nate ly, by going back to the original recomme ndation of the commission saying, the onus is on the maker to commu nicate their directive. I say this has implications in mental health. 1 realize that my comments affect health care at large, but I believe this could be the source of particular probl ems in psychiatric faci lities. As some member s of this comm ittee know, the Canadian Mental Health Association operates an advocacy program through Its Winnipeg region.

A number of patients report that when they come in in a crisis, obvi ously, th eir com petency is som ewha t compromised, and sometimes, they do not get full respect, their files are not read, and there have been problems that have emerged. So the Canadian Mental Health Association has some concern on this recomme ndation and suggest it could be tightened up. Overall, however, the sound coming from this podium is definitely applause. Thank you, Mr. Chairperson. Ms. Wasylycla-Lels: I would like to begin by thanking Mr.

Dalmyn on behalf of the Canadian Mental Health Asso ciation for taking time to appear before this comm ittee and to give us some reaction to Bill73. For the record, I think it should be clearly indica ted or reiterated, that the Canadian Mental Health Association strongly supports this legislation, and indeed, has fought long and hard for this concept to be entrenched in law over a number of years. We all recall the debate around Bill 5, amendments to The Mental Health Act. I have questions on the two points that you have raised, Mr. Dalmyn.

First, you raised the general discrepancy between treatment of those who fall under the health care system generally, and those who fall under the mental health care system and mental health legislation. My question is, what is the best way to correct that? The MMA has suggested that, I believe, that we change the legislation to require, in all cases of directives, the identification of a proxy.

I presume that would be one way to correct the imbalance so that in both systems a proxy is required, or the alternative suggestion would be to eliminate, and I guess we would have to then amend The Mental Health Act, the special requirement in terms of going to the nearest relative and disregarding the directive. I would like some advice in terms of how best to deal with that discrepancy. Mr. Dalmyn: Mr. Chairperson, I agree that Bill 73 leaves some differences between the rights of people in general health care and the rights of people in psychiatric facilities.

I do not view that distinction as necessarily being bad. I suppo se it is conceivable that some day, there would be a question of discrimination against people on the basis of their mental status, but as I read the ope rat ion of this leg islati on, the operative differences are not significant, and perhaps are justifiable by the problems that people are dealing with.

When we look at the MMA's recom mendation 1 emphasize the MMA, the previous witness befo ;e this committee was suggesting that The Health Care Directives Act, the main act, should be amended to sa� that if somebody does not have a proxy, then their nearest relative will give consent on their behalf. I suppose it is not within the mandate of my o ��anization to comment on that. As a private citizen, I would say I agree with the Law Reform Commiss ion, I agree with the Atto rney General (Mr. McCrae), and I agree with the bill as it stands.

It is one thing to allow an individual to have a he�lth care . direc �ve or to appoint a proxy to project the1r own Wishes 1ntothe future. It is som ething else

111 LEGISLATIVE ASSEMBLY OF MANI TOBA June 19, 1992 to impose treatment decisions by your nearest relative, regardless of the level of wisdom of that relative or your degree of estrangement from that relative upon everybody. That recom mendation is not consis tent with the philosophy of the Law Reform Comm ission's report or the act. I do not think that can be accepted without very serious study. The question of the rules for consent to health care on behalf of incompetent people who do not choose to have proxies is a different topic, and it is not addressed in Bill73, and it should not be picked up.

The other side of it, should we begin serious tinkering with The Mental Health Act to just say that proxies will be the rule in The Mental Health Act, that does not work either simply because of the number of people who do not have proxi es. I believe Bill 73 makes a good reconciliation between giving people under The Mental Health Act better rights, the right to have a proxy, while preserving the regime that allows proper treatment decisions in the best interests of patients under The Mental Health Act. Ms.

Wasylycla-l.els: My other question has to do with your comments about whether or not inquiries about whether a directive exists or not should be required or not and how it should be handled. I had the same concern that you mentioned, Mr. Dalmyn, about 21. It would appear, and I believe this is the essence of your remarks on this matter, that by virtue of it being in here and the way it is worded that in fact people will conclude, individuals will conclude, organizations will conclude that in fact we should go out of our way not to inquire about whether or not a directive exists.

It would seem that the best way to handle this point would be to actu ally delete 21. I am wondering if-certainly we will pursue this later-the Minister of Health has considered that or not and, if that is out of the question, if the minister and the gove rnment refuse to consider deleting

Section 21 , is there another alternative for ensuring that we do not go the opposite of the intentions under this bill. Mr. Dalmyn: The problem that I tried to describe with

Section 21 is that it seems to depart from sound clinical practi ce. Sound clinic al practice obviously is to make inquiries, and

Section 21 says you do not have to make inquiries. I am suggesting either that 21 can be dispensed with or that the wor ding be changed simply to say that the maker of a proxy has the onus of commu nicating the proxy. That read in conj unction with what already stands as paragraph (

b) in

Section 22 would send the correct message and would provide proper legal protection to health care providers who act in good faith . Ms. Wasylycla-Lels: Just a clarifica tion, just so I understand, because I may have misunderstood you before, you are not suggesting the deletion of 21, but a change in wor ding in terms of the onus being put on the proxy. Mr. Dalmyn: I believe either would have the same effect. A positive amendment may be more clear in sending the right message to pro viders of health care and to consumers of health care . Mr. Cheema: Mr.

Chairperson, I first wanted to express our thanks to Tony Dalmyn for coming and making a presentatio n. Certainly we have received commu nication from Bill Martin, Executive Director, and your associa tion, supporting Bill 16 and now Bill 73. *

(1420) Your one concern of

Section 21-ac tually, when the bill was being drafted we had a concern. How do you enforce health care providers in institutions to explain to each and every patient that they have this right, explain to them and then you are putting the onus all on the health care profe ssional. We have a concern that it is ideal if we could do that but, to do that, to achieve what you are asking, we have to basically amend then The Health Services Commission Act, because that way we have to enforce the health care providers to make sure they are explaining to all the patients.

I think it will become very difficult, become almost impossi ble. The other problem is going to be if a patient is visiting two physicians or two hospitals, two personal care homes, two other faci lities, how do you reinforce those things? It becomes very tou gh. I think it should be up to the patient to make arra ngements to ask for and, as the educa tion can be done very easily through the Health Services Comm ission and not sort of forcing them to do, that is what you have to do, but just educating them and giving them all the options.

Just to ask everything the health care professional is to follow, I think is going to becom e impossi ble. Certainly your intentions and the associa tions' intentions are quite right, but it may not be possible. I just want to explain to you that we also discussed this when we were drafti ng Bill 16.

June 19, 1992 LEG ISLATIVE ASSEMBLY OF MANITOBA 11 2 Ms. Wasylycla-Lels: I jus t need to seek a clarification around the issues pertaining to 21. I guess I am having some trouble understanding if we did change 21, and make a positive statement that the maker of a proxy has the onus to indicate that a directive exists, how that is any more likely to lead to reaso nable inquiry than existing wording of 21. Mr. Dalmyn: Mr. Chairperson, the answer is that 21 , as presently wor ded, says there is to be no inquiry. That removes, one would believe, the obligation to inquire.

We delete or modify 21 by putting the onus on the maker. We do not impose an indefinite or intolerable burden on health care providers to make inquiry. We also make it clear that the fundamental message of the legislation is that the maker cannot hide his light under a bushel basket. You cannot leave your direc tive in a back drawer, in a safety deposit box, and expect a health care pro vider to act on it when you are brought in bleeding from a car accident. It sends the right message without putting an improper burden on clinic al prac titioners, and the common law will enter into it.

The common law will require a prac titioner to get whatever points of history are relevant in dealing with that patient. Depending on the nature of the crisis, if you have no time and there is no directive known to you, you do what you have to do. If you have time, and you have a minute or two , where you are dealing with a patient who has some ability to express his or her wishes, get some inform ation, do what is reaso nable.

The common law does not put heavy burdens on doctors, and I simply suggest that the deletion, or modification of 21 would leave the law consistent with medical ethics , sound medical practice and the common law as to doctor's obligations. Mr. Dave Chomlak (KIIdonan): Mr. Chairperson, so if I can conclude what you are stating, Mr. Dalmyn, the providing of this

Section 21 actu ally in fact may affect common law to the extent that, in the normal inquiries a doctor or health care prof essional makes, they will not be required to even make a reasonable inquiry about a proxy or about a directive . Is that correct? Mr. Dalmyn: Mr. Chairperson, the member has put the concern accurate ly.

Section 21 goes beyond reaso nable protection of pract itioners and begins to modify the standard of care that would exist in common law, yes. Mr. Chairperson: Thank you, Mr. Dalmyn. The next presenter before the comm ittee will be Dr. A. J. Kirshen, private citiz en. Dr. Kirshen, will you please come forward . Is Dr. Kirshen in the room ? If not, then we will proceed to the next presenter, Ms. Barbara Wiktorowicz, the Alzheimer Society of Manitoba. Am I pronou ncing your name corr ectly? Ms. Barbara Wlktorowlcz (Alzheimer Society of Manitoba): It is Vict-o-ro-v ich. Mr. Chairp ers on: Vict-o-r o-v ich.

Will you proceed, Ms. Wiktorowicz. Ms. Wlktorowlcz: Thanks very much for giving us this opportunity to make a presentation on this legislation. With me today is Deloree McCa llum, who is an active volunteer at the Alzheimer Society and someone who has experienced Alzheimer's disease in her family and has worked on our comm ittee that has reviewed this legislation. If there are further questions, she will be here to help me respond to them. Overall, the Alzheimer Society is very supportive of this legislation .

We favour a broader approach to the health care directives which is grounded in the principle of self-determ ination. As you know, Alzheimer's disease is in fact a terminal disease and has a long-term progressive nature. It can go up to 20 years. This distinguishes it from any other illnesses and sudden catast rophic accidents. It is very important, then, that in considering the opportunity that an individual who has been told that they have Alzheimer's disease, will have some time and oppo rtunity to consider whether they want to refuse treatment, or choose one treatment over another in their future.

Our overall support is favourable, and we commend the gove rnment for bringing this legislation throu gh. We have a couple of concerns in a general overri ding issue. Our concerns are, one, is the limitation to the proxy in

Section 14 where the proxy cannot give consent to drug trials or experimental treatm ents. Since research is developing in the area of treating Alzheimer's disease, and It is of primary interest to those who are afflicted and their caregivers, we believe that it is a little bit too narrow to limit the proxy's ability in this area. I guess, if there cannot be any amendments here, we would take a very active role with our families in terms of educating the individual with Alzheimer's disease that this is something that has to be placed into their health care directives. As Dr. Balik

113 LEGISLATIVE ASSEMBLY OF MANITOBA June 19, 1992 indicated earlier, only a small proportion of people will actu ally complete this health care directi ve. We believe that this limitation should not necessarily exist. The second one is the relationship between the proxy and the commi ttee. The commi ttee, which is the legal person who can be appointed as private trustee-the Alzheimer Society wishes to express concern regarding potential conflict between the proxy and the comm ittee which is not addressed to our satisfaction in the legislation.

The act does not exclude the private committ ee and the health care proxy from being one and the same person. However, if the private comm ittee and the health care proxy are two separate individuals, the act does not provide for resolving conflict between these two in situations which involve financial costs. If the health care proxy makes a medical treatment decision which involves cost to the makers such as the health care aide, dentures, wheelchairs, hearing aids and so on, the private comm ittee would necessarily be involved , but may not agree with the decision.

We can foresee that there may be conflicts and some sort of mechanism perhaps should be put in place to settle a dispute like that. Our overriding concern is still the issue that unless an individual has com pleted the health care directive or appointed a health care proxy, it still leaves the family, once the disease progresses and the individual is incompetent, in sort of a legal limbo. The diagnosis of Alzheimer's disease may or may not be made while the person is still considered competent. The early symptoms of the disease are very insidious.

The diagnosis is not made easily, and ofte n, the demen ting person does not understand or agree to medical consult ation. Many families make applic ation for private comm ittee, but few known to us, are extended the specific authority concerning the individual's medical treatment. Usually this is excluded and the com mittee is just to gove rn decisions around a person's property, not personal decisions. .. (1 43 0) We strongly suggest that this act address this issue.

In the case where the person is judged to be incompetent as a result of Alzheimer's disease or related dementia, and there is not appointed a health care proxy, that an opportunity be provided for an individual to apply to become a health care proxy, whether under the health care act, or thro ugh another appropriate

section of The Mental Health Act. Such inclusion would strengthen the case for concerned and caring family members who require some authority for medical treatment decisions. Thank you very much. That is my presentation. Mr. Chairperson: Any questions? (Mr. Bob Rose, Acting Chairperson, in the Chair) Mr. Cheema: Mr. Acting Chairperson, I first of all, would like to express sincere thanks again to the presenter.

I just want to go back to her last concern in terms of-can she again explain to me how she feels that the-as I am sure she has read the whole thing in terms of the proxy and the health care directive can be changed by the person at any time, and the competency has to be decided upon by the health care prov iders. That definition is very broad . One person could be competent for a part of the daily affairs. He or she may be competent for financial affairs or may not be in some other aspect. I think this is quite an open definition.

I think that may address that part, as long as that is being very well explained and the health care directive and the proxy knows about that, but a lot of education has to be done. As you have pointed out, the main concern is whether people are going to know these things exist. That was our concern also but, certainly, the Health Services Comm ission can do that. I mean, the physicians have to get involv ed; more health care providers have to get more involved ; the hospital has to make a policy in terms of letting people know that such and such a law exists.

I just want to ask you whether that part of the definition of com petency would address the issue you have raised. Ms. Wl ktorowlcz: Well, sti ll I bel ieve not completely, because the issue is more that there still is a gap left for those individuals who do not, while they are competent, sign a health care proxy or a health care directive . I gues s it may really extend beyond this legislation.

I think we feel that there has to be some legal authority given to a family member or someone either that the person appoints or that a court appoints that becomes a person who has a legal authority to make decisions about the medical care, even though the individual has never signed a health care proxy form . I agree that the society will become involved in educating families and, as you said, hospitals, and

June 19, 1992 LEGISLATIVE ASSEMBLY OF MANITOBA 11 4 physicians maybe can be active in that, but we know that many people do not take advantage of that opportu nity, so we think there still will be a gap there. Mr. Cheema: Mr. Acting Chairperson, again, I am sure you are aware that the Public Trustee could get involved in the example you have given. In cases where you do not have a family member or the patient incap acitated or the health care providers are concerned that care is not being provided accord ing to the wishes of the patient, the Public Trustee can get involved and that could address your other issue.

Also, the other aspect, which I pointed out at the earlier stage of the presentation, was that still these things are going on, that the two physicians or the three physicians or the two health care providers could get together with the family and discuss all the options. Those things are being done but, to make it legal, still the Public Trustee in my opinion can do the same thing as you are asking. Ms. Wlktorowlcz: The Public Trustee would have to be appointed for that individual, and right now it is usually a kind of a gap in the law.

In my conversations with physicians they act as if there is a proxy usually with the closest family member. I mean they see the family is well intentioned and that is who they work with so, in effect, that is what happens. Family member s have expressed concerns to us saying, well, we are really in a vac uum. If they did not want to pay attention to what we suggested be taken seriously in terms of drug treatments that help, there is no onus on health care providers to do that at present. There is not a vehicle in terms of a family member.

Even if the family member has been appointed a committee, that still gives them only the right to make decisions about property. Mr. Cheema: Mr. Acting Chair person, the first concern the presid ent had was whether participation in drug treatm ent or experimental treatment has to be a part of the proxy. If that can be given in terms of the will, it can be explained what that includes and these are the basic guidelines how the patient is going to be treated. I think that can be corrected. Certainly we can ask the legal opinion whether that is going to be viable in the long run, but there I find some concern.

For example, you do not want somebody to be tried on experimental drugs, or some treatm ent which may or may not be a well-accepted, normal pattern of practice in a general way. I think that is one concern. That may be the reason that when the bill was being drafted, they did not include that. I am sure individuals will be concerned. If you are talking about certain groups of patients, it may be applicable but, when we are making a law for everyone else, then I think it becomes very difficult. I just wanted to hear from you what you think. Ms. Wlktorowlcz: Mr.

Acting Chairperson, I think I would assume that if the individual, though, appoi nted a health care proxy, that they have confid ence in that person's decisions about their own health care. That is why I am not sure why a health care proxy could not, without some kind of advance writing in the directive , make decisions on this medical research area. Alzheimer's would be one example, but there are ot her diseases that ther e are experime ntal treatments, and it may be very much, to the person who is suffering with the condition, to their benefit to receive some of these treatm ents.

If they had not had the fore thought to write it into their directive , but they had appointed a health care proxy, it seems like there is a contrad iction there that I do not think is really necessary. Mr. Cheema: The final comment on the same issue again-as you know , under our health care , all the health care pro visions, the treatment methods, the drugs and everything else have to be approved by the drug agency and Manitoba Health under the Manitoba health act.

If that act is not going to cover the medical treatm ent which you are asking the drug trials and experimental drugs, that could cause a major concern in terms of the cost and also a major concern in terms of the legal liabilities for those drugs which are being simply tried. I just wanted to express that may not be pos sible. If it was just for one

section of the communi ty, then one can have a good look at the whole thing, but when you are talking about the whole spectru m of patients and communi ty, it may not be certainly practical at this stage, but we should have a look at that in the future. That is my own conce rn, and practical problem which we could have if we putthat kind of wording into the law. Ms. Wlktorowlcz: Mr. Acting Chairperson, yes, I agree that some limitation might be important to have in there in terms of only drugs that have been approved and that, so that seems fair. I think it could be maybe somewhat extended from what it is right now.

11 5 LEGISLATIVE ASSEMBLY OF MANITOBA June 19, 1992 The Acting Chairperson (Mr. Rose): Thank you. Are there any other questions of the presenter? If not, I would like to thank Ms. Wiktorowicz for her presentation. The next presenter, Mr. John Oldham, private citizen. Mr. John Oldham (Private Citizen): ladies and gentlemen, the bad news is that I think this is the worst time of the day to be listening to any speaker, let alone a preacher. The good news is that the document I have before you, while it looks lengthy as most of my sermons, I will not be reading it all.

I am honoured to be here and to be sharing in the process of this nation and this province where the public can be consulted in the decision making, whether some of us have tented out on the peace village or some of us present here in this room. I am here as a private citizen as it says, but I expect that I represent a significant number of people in the chur ch and ot her communi ties of spiritual and religious trad itions in the interfaith world.

I present, as a minister of the United Church of Canada for the last 23 years, who has learned a great deal from the ill and from the dying in care institutions and in their private homes. * (1 44 0) I write as a form er member of the Manitoba Hospice board, who had done preparation for the board in terms of the law Reform Comm ission's documen t. I write as a religious consultant and co lumn writer for the Right to Die Society's bimonthly journal called last Rights, and I am a member of that society .

I enclose for your consideration a statement which I will refer to later that I made on CBC commentary the day after Nancy B. died. I assume that you are aware that the polls reveal that nearly 80 percent of Can adians are in favour of euthanasia or doctor-assisted suicide when it is the stated wish written instruction of the patient.

I recognize treatment directive document to which we address today will go a far way to honour the wishes of the vast majority of Canadians, and have the effect of beck oning the Criminal Code to catch up with the wishes and the practice of the medical com munity and the general public to facilitate a good death. I wish to affirm the position of the law Reform Comm ission in Bill 73 of the right of an adult, in this case now you have it at 16-e person of a sane mind to seH-determination. I am one who will cont inue to be the advocate of those who wish to exercise either their right to live or their right to die.

I support the naming of a proxy as long as there is some safeguard, and there seems to be in the legislation, that that person is not attempting to make selfish gain by serving in that function. I encourage the commi ttee to study and utilize the material from the booklet and treatment directive called let me Decide, prepared by Dr. Molloy of Hamilton. It is here in my hand and your Clerk has it for file. They are available at local boo kstores for $5 or less, and I am quite happy to pass this one on to anyone here.

I understand that 25,000 copies are being circul ated to Ontario doctors and others in the health care field in Ontario where this issue is currently under review as well. This treatm ent directi ve uses medical term s and lists variou s instructions in detail and allows for update and review. Too many so-ca lled living wills are so general, as Dr. Balik as already testified, or so brief, that they are of little precise guidance for the family or the medical com munity or for the proxy. I wish to make available to you as well, as part of my submission , a recent and excellent

article from the June 1992-this is hot stuff, the book is just off the press this spring-this issue, from the June Canadian Medical Associati on Journal provided to me by one of the doctors here in the city to whom I am grateful. It is entitled Family Physician s Attitudes Toward Advance Directives, and it is probably the most current information that can guide us in any modifications to the legislation. Written by a Dr. Hughes and Dr. Singer of the University of Toronto, the survey strongly favoured Bill73 as it is proposed, a directive compr ising both instruction from the patient as well as a proxy component.

The issue of how to encour age people to fill out directives is a vital one. Might a process be used through the Manitoba Medical Association that patients are given a copy and invited to fill it out? As well, all people admitted to hospital might be given a copy if they have not already completed one. Perhaps, if we are visionary, even in a few years time our driver's licence might have a summa ry type of directive just as it now has instructions regarding organ and body donations.

In summa ry, I have been impressed with the commitment of the health care com munity to honour the wishes of the patients and their families if the patient is unable to co mmunic ate. I have had the

June 19, 1992 LEGISLATIVE ASSEMBLY OF MANITOBA 11 6 opportunity of being involved in caring for those whose wishes have been respect ed, either to go home and die in the dignity of their living room, or to have treatm ent suspended while remaining in a hospital bed. Recently, a senior who had chronic long-term pain, heart disease and other illness had made it clear to me, his pastor, that he wanted to die. He dictated a two-line statement to me that he wanted to die and he stated, I wish to die naturally, I do not want intravenous.

A thorough assessment and consu ltation was done with the hospital community, the doctors, the nurses, the family. He chose not to eat and it took him three weeks to die. We shared the 23 Psalm together and his one regret was that it was taking him too long to die. I hope that some day, some day soon we can honour those kinds of wishes with greater dignity and respect than to let a person starve to death in a hospital bed. The point however is that a two-line statement witnessed by me, his minister, served as a treatment directive that was honour ed and followed by the health care team at the Grace Hospit al.

I sit by bedsides of people tied to tubes and machines and I know that it is not how they want to exist. I visit those severely brain damaged for over a year and see the strain on family, and I know that the wishes of the patient were not to continue in a vegetable state. The patient indeed had verbally told his son his wish but it was never written down. My hope and prayer is that your work in this legislation will make it legally and morally binding to follow the wishes and the instructions of pat ients as they exercise both their right to live, and their right to die.

I commend you for your work and some closing remarks or some additional remar ks that came to me today, as I read over the legislation, I am aware that there are no secti ons related to the format or to the type of treatm ent directive that would be suitable or recognized excep t for

Section 11, in the docu ment where it says the Lieutenant-Governor in-Council may by regulation prescribe a form of directive but the use of such a form is not mandatory. In light of Dr. Belik's earlier comments about the variety of written documents and the usefulness or lack of some of them, there might some wisdom in an implementation comm ittee consulting with the different Winnipeg hospital ethics committees to prepare a basic directive that would have the approval of the authorities, to serve at least as a guideline for people asking what can I fill out.

I do not see that guideline included in the legislation. I would hope that there is some supplementary material that you have from the reform commis sion or other sourc es. The enclosed one by Dr. Molloy, which I will refer to in a moment, might be augmented by statements from other direc tives cur rently being tested in Manitoba. One would not want to have a directive that gets too long or complex as it might frighten some people from filling it out, as Dr. Belik has suggested.

Number two, in chatting with hospital chaplains and social workers this week preparing for today, her e are som e conce rns I hope you consider -hospital board, staff and doctors be protected from possible legal action, as was the concem in the Nancy B. story.

Consideration needs to be given to situations where the medical staff have concluded that a person would not benefit from aggressive treatment-! think the phrase was futile treatment in an earlier presentation today- but where one or some family members, out of their emotional difficulties in letting go, will not agree to switch to comfort or palliative care, consideration needs to be given to the issue of when is ongoing treatment really an invasion or an assault to the person's body.

I notice on the CBC news this week and in the Winnip eg Fre e Press today tha t the federal-pro vincial Health and Rnance ministers are deeply concemed about cutting costs to maintain our universal medicare. On page 5-I am sure some of you have browsed through it already-there is this quo te that Canadians will have to be more careful when they spend their health care doll ars for everything from hip replace ments to Caesarean sections, Health and Rnance ministers agreed yesterday.

Federal Health Minister Bouchar d sugg ested as many as 30 percent-wowl-30 percent of the medical procedures perform ed in Canada may be unnecessary. I would like to see some documen tation to that. Certainly there could be considerable financial savings and greater respect for people if that is the case . My sense is that we must scrutinize not only the ethics but, also, the finances of keeping people existing for months or years in a state which they

117 LEGISLATIVE ASSEMBLY OF MANITOBA June 19, 1992 would not agree to if they were able to state their wishes. I think specifically of many people on a ward at Deer Lodge who are extremely brain damaged. I visit there and I commend the caring staff, but I wonder of the wisdom of keeping these people captive to a system that seems to deny that there is dignity and that there is a blessing in death. I visit in many seniors' residences and notice that friends once active and alert have become fillers of chairs. Their once sparkling eyes have becom e but vacant stares.

In many such cases, modern medicine and technology have become more of a curse than a blessing. In years past, most of these people would have died naturally with pneumonia or other complic ations. It seems to me that these difficult questions must be face d. Bill 73 does not address the ongoing ethical and financial issue of what to do with the thousands of others who make no living wills.

Further on the next page, on page 3, I will just highli ght a quo te from the CBC comme ntary statement I made the day after Nancy B. died: Because of the media hype focused around Nancy B. and issues-this is the second paragraph-related to euthanasia and the right to a good death, which is what the Greek word means, Nancy B. will long be remembered for her courage to assert her right to self-determination, which is the philosophy behind the Law Reform Commission, the right of self-determination.

Further down in the last three paragrap hs: With the increasing demands on limited health care dollars we will have to make more and more tough ethical decisions. Should we spend our money keeping a severely brain damaged person existing while we say we have no money to do heart surgery that could give someone else years of significant living? As a clergyperson , I have learned a lot about death and dying from those who do it, and Canada has learned a lot from Nancy B. All main world religions teach that death is not to be feared. There is a time to be bom and a time to die.

Nancy B. and many others like her are choosing their time. •

(1450) Nancy B. has offered us not just an example of self-determination but, rather, as well an invitation to come to terms with our own death. Nancy B. has taught us about the sanctity of life, as well as the sanctity of death and how we can honour a person's spirit in their living as well as their dying. On pages 4 to 11 , and I am only going to make reference to it, this is the reprint from the Canadian Medical Association 1992 Issue. I have written for permission to reprint it and have not received a response yet. I just received this the other day.

I would like to highlight on page 4 some of the research that has been done with Ontario doct ors. This might be helpful for your committee's work and for implementation stages. The questionnaire was mailed to over a thousand family doct ors. The results indicated that 86 percent of the doctors favoured the use of advance directives, but only 19 percent had ever discussed them with more than 1 0 patients. Most of the physicians agreed with statements supporting the use of advance directives and disagreed with statements opposing them.

Then down toward the conclusions: Family physicians favour advance directives but use them infrequently. Most physicians support offe ring them to terminally or chronically ill patients but not all patients at the time of admission to hospital, although about 40 percent say that. Although gove rnments emphasize legislation which you are dealing with today-most physicians believe that public and professi onal education programs would be at least as likely as legislation to encourage them, to encourage the doctors, that is, to offer advance directives to their patients.

On page 5 of that, just a brief statement that connects us with the United States and references to Dr. Belik's comm ents, the second paragraph down, in the U.S., 49 states have enacted legislation on advance directives. Moreover, the patient's self-determination provisions of the 1990 U.S. Omnibus Budget Reconciliation Act require-get this-requires hospitals receiving Medicare and Medicaid reimbur sement to inform all patients at the time of their admission of their right-just their righ� to complete an advance directi ve. In Canada, Nova Scotia and Quebec have legislation supporting proxy directives.

No province currently has legislation on instruction directives. Then again they reference, 15 percent of people in the U.S. have completed an advance directive . Now if that happens after ongoing education here in Manitoba and in Canada, we are only getting to 10 to 15 percent of the people. I am not sure how

June 19, 1992 LEGISLATIVE ASSEMBLY OF MANITOBA 118 we deal with the issues related to these questions with the 85 percent of Canadians in the future years. I want to refer on page 12 to a document that is a reprint that highlights themes from this booklet called, Let Me Decide. Then on page 13 through to 16 , you will find a copy, a tear-out that is available, the tear-out from the middle of the booklet. This is a specific one that has been developed by a Dr. Molloy, and a nurse, Virginia Mepham, of the Alzheimer Society in Ontario. Some of you may be familiar with it.

It has been updated, and I would hope that you would study it and look at the chart as to how it might be simple enough to help people indicate what their wishes are without being so complicated that they or their doctors or their tam Illes are confused by it. In

summary, I commend you for your work. I am proud to be part of a province that may have the first legislation-1 do not know how the Ontario

schedule is developing-but may have the first legislation of this kind in Canada. The Acting Chairperson (Mr. Rose): Thank you, Mr. Oldham. Are there any questions or comments for the presenter? Mr. Cheema: Mr. Acting Chairperson, first of all, again, we are very grateful that Mr. Oldham has come and made the presentation, because we had received a note from him earlier Indicating his views on the whole issue. I think you have touched on many important issues in terms of the wishes of the patient and your involvement in various hospitals and what you see, how the patients are sometimes unable to make decisions.

Sometimes their life is being prolonged without any major outcome and without having dignity of life attached to that. I think this bill, as you have said, will address some of the issues but certainly will not go far enough which you are asking, and I think time will tell how we can change that aspect. One of your concerns, on page 4 of Bill 73 is that to prescribe form. What you have suggested and, in your brief, you have given us a page from the book you have referenced a number of times.

I am sure the minister knows that there is a form in the Law Reform Commission report, and I think that may solve your concern and give some guidelines how the form can be developed and explained to the patient. The other issue is the public education. That has to be done, that has to be a major component, as Dr. Belik and yourseH and other presenters have made very clear. That should be probably the policy of the hospitals as well as the health care providers. Certainly those are my comments.

We again appreciate your willingness to come and participate in, as you have said, a very important document, the first in this country to at least give guidance to other provinces, that we need to have such a law in this country to make sure the dignity of an Individual patient and individual citizen is being maintained. The Acting Chairperson {Mr. Rose): Mr. Oldham, do you wish to comment? Mr. Oldham: Not directly, but I appreciate your comments, sir. Mr. Chomlak: Mr. Acting Chairperson, I would also like to thank you for your presentation, Mr. Oldham.

There are some interesting suggestions in there that I noted, notably the inclusion perhaps of a wallet directive-1 thought that was interesting-also, the statistical information you provided us and, also, the information from the United States about hospitals that provide that kind of information on admission. That strikes me as a very useful tool, because education is clearly one of the most significant factors in the introduction and the passage of this bill.

It will fundamentally change many aspects of our society and will touch everyone in this province, so the means by which the public is educated becomes paramount. I think having health care professionals and other institutions advising people as well as some of those other suggestions, would be useful. Your example of a sample directive is useful. I think the legislation probably covers that in that the

Section 11 is not mandatory. It says, and I think it is done that way-1 suppose the government or the drafters would probably point this out as well-the legislation says that the Lieutenant-Governor may by regulation, but not make it mandatory. I expect, and we will ask this I suppose, and perhaps the minister would be prepared, likely there will be by regulation a kind of directive that will be provided. I suspect there will be, by regulation, a sample directive, so that will be taken care of. I thank you for that suggestion. Mr. Oldham: Sir, yes, that would be very helpful, especially in the educational phase of this program where a sample is provided so people can use it or

11 9 LEGI SLATIVE ASSEMBLY OF MANITOBA June 19, 1992 modify it. I would not want to have something that is mandatory. For example, in the case of my friend who died at the Grace, it was a two-line verbal statement to me that was honoured. Certainly, we need to have that flexibility. I know that there are people who need some direction on what they want to say, and I would affirm that. The other thing I want to acknowledge is that while many of you may not read The Winnipeg Sun, or consider Peter Warren on your Christmas card list, there is an

article in today's issue of The Winnipeg Sun specifically about living wills-kind of preparing for today, I take it. He talks about the resources now with computers, whereby you can have a system built in so that regardless of where you live, they can have quick access to your living will if you are in another part of the country, even in another part of the world. (Mr. Chairperson in the Chair) Dr. Molloy is developing this computerized network of system where regardless of where you are, access can be quick by a few buttons to your living will that is on file in a central registry.

That would resolve one of the issues as well as doctors not knowing if there is one, is there one, where is it, when can we get it, do I treat aggressively for the next five hours until I get one, or whatever. That is also pending in this ongoing discussion with Dr. Molloy in Ontario. Mr. Chairperson: Thank you, Mr. Oldham. The next presenter is Gordon Mackintosh, the Manitoba Association for Rights and Liberties. Mr. Gordon Mackintosh (Manitoba Association for Rights and Liberties): We provided a brief to the minister and to the opposition critics, the one that is being passed around now.

I sat at this table too long to want to go on very long here. I will just be very brief. Rrst of all, I want to commend the government for this bill. This really is an excellent piece of legislation. It is one of the most progressive and comprehensive of its kind, and my understanding is, that goes for all of North America. • (1 500) I was surprised to hear that there are, I heard 4 7, and the gentleman says 49, states in the U.S. that have similar legislation of varying degrees, so we are joining a big family. Our experience will be important to oversee.

In particular, we will want to see over the next several years, to what extent there is knowledge of and use of this legislation. If there are some deficiencies in that regard, we hope that the government will look to changes, whether it be by the physician taking a more proactive role, or perhaps by other changes. I also want to commend the Liberal caucus for the introduction of its Bill 16 . That was also an excellent piece of legislation. I also want to commend the NDP caucus for what I understand is its general support of this bill, and certainly for the concept of advance directives.

MARL, as I say, strongly supports the bill, and therefore, the comments that I will make now, are not so important that they should hold up the bill if they cannot be dealt with at committee.

Section 23 of The Wills Act says that if you do substantially comply with the formal requirements for making a will, the will can still be validated. We think that is good provision. There are, although not a lot, some requirements that have to be met. For instance, if one spouse signed an advance directive, there could be some difficulties un der this legislation. In certain circumstances, it may very well be that is an advance directive that should be relied on, that we can feel assured represents the interests or the wishes of the person who is the subject.

We think there should be an outlet for someone to go to court to get an advance directive validated even though all of the requirements may not have been met. That is recommendation No. 1. Recommendation No. 2 is that we think there should be a provision in the bill which allows or recognizes advance directives made in other jurisdictions.

I know in speaking to Legislative Counsel earlier, he pointed out that this legislation really has such minimal requirements that we should not be concerned but, if there are 47 or 49 states in the U.S. that do allow for advance directives, you never know what one will come across. We think that an advance directive, no matter where made, should be valid in Manitoba. Our third recomme ndation is regarding the consent of proxies. We think that it should not be necessary certainly for a proxy to give prior consent.

In speaking with Legislative Counsel, it is the opinion that the bill does not require prior consent, so recommendation No. 3 has been satisfied, I believe.

June 19, 1992 LEGISLATIVE ASSEMBLY OF MANITOBA 120 Recommendation No. 4: Amendments to The Human Tissue Act are needed, we propose, and we understand that that will be addressed. Recommendation No. 5 is clarification in

Section 3 regarding the status of advance directives insofar as The Mental Health Act is concerned. This was addressed in detail by Mr. Dalmyn from the CMHA, and we endorse that. We hope that can be clarified. Recommendation No. 6 regards the Trtle of the act. The Health Care Directives Act I think is a bit cryptic. I do not think people know what a health care directive is. Now that is easy to say, but what is the alternative? People talk about this as living wills, should it be the living wills act, but there is all kinds of baggage that come along with that.

Living wills sometimes connote the ability to commit-one saying, you know, kill me, or something like that, so there are lots of other considerations. I do not think "living wills" is accurate. Perhaps the Medical Consent Act, which is the title of the Nova Scotia legislation, may be a bit better. It is a bit too broad, but then I think The Health Care Directives Act is a bit too broad. I would invite the committee to consider whether the act truly will enable public understanding of this scheme.

Recommendation No. 7: Again, it is important that we have educational programs in place to inform the public of what this bill entails. The other two recommendations we have set out in writing there, and I will not speak further to them. Those are the comments of our association. Mr. Chairperson: Thank you, Mr. Mackintosh. Are there any comments or questions? Mr. Cheema: Mr. Chairperson, I have developed a good habit of appreciating individuals who have come forward in making presentation and, Mr. Mackintosh, your association has done a good job.

We have all worked very closely on a very nonpartisan basis to develop some regulations which are going to help all individuals in Manitoba, and this is one very good example. We appreciate your concerns and, certainly, some of them have already been addressed. As far as some of the others are concerned, we have the time of the committee and we can probably ask the minister and the legal counsel for some explanation. I just wanted to express our appreciation for your ongoing support for the right of a patient and the dignity of individuals, which this bill is simply asking for-give what is best for the patient.

They should be the best judge, not any one of us. Ms. Wasylycla-Lels: Mr. Chairperson, I would like to thank Gordon Mackintosh and all members of the Manitoba Association for Rights and Liberties, not only for the presentation this afternoon which is very excellent and detailed, but also for their years of work on trying to move Manitoba in this direction of recognition for rights of health care consumers and that of course, nowhere is that more necessa ry and apparent, than an area like directives and living wills. I have a couple of questions.

The first has to do with your No. 1 recommendation on substantial compliance. Can you tell me, I do not know The Wills Act, do you know the wording under The Wills Act and is it directly applicable for the situation? What would you recommend specifically In terms of amending 8111 73? Mr. Mackintosh: The statutes may be at the back. I do not recall the exact wording of that. I do not have that with me. My understanding is it says that where there has been substantial compliance with the requirements for making a will, the will can be validated, and I believe it is on court application.

Well, it would be on court application, certainly. Ms. Wasylycla-Lels: How strongly do you feel about that amendment? Is it something that we should push for hard at this committee meeting, or if there is no will on the part of the government to incorporate such an amendment, do you feel it can be dealt with in any other way? Mr. Mackintosh: I certainly would not recommend that anyone go to the wall on that one. I think, though, if there is some general support for that, it should be included.

It just ensures that the advance directive is available in all possible circumstances so long as it likely reflects the will of the patient. Let us face it, this bill has very few formal requirements, but there are some, and there may be circums tances wher e even those particular requirements really do not prove anything. Ms. Wasylycla-Lels: Let me then ask your recommendation with respect to some of the suggestions made in earlier presentations about actually making even more specific requirements around the directive.

For example, the MMA brief rec ommen ds specifically that the directives be dated and be signed. They also call for a witness and a number

121 LEGISLATIVE ASSEMBLY OF MANITOBA June 19, 1992 of other things. I am wondering wha t the recommendation of MARL would be with respect to looking at some of those considerations. Mr. Mackintosh: We would strongly oppose those kinds of requirements. That is going the opposite way of where we should be going. *( 15 10 ) The common law, the Ontario Court of Appeal has said that the Jehovah's Witnesses card which is simply preprinted and signed only, no date, no witness, just a signature, is good enough.

It is critical that the Manitoba legislation not kick out the Jehovah's Witnesses card, because If it is good enough for the rest of Canada, it should be good enough for Manitoba. Ms. Wasylycla-Lels: Okay, I appreciate that response from you, Mr. Mackintosh. Could you help me out, though, with respect to directives that may be very clear and ambiguous. This also has been raised by the MMA and I believe others.

I am raising this issue now, not from the perspective of worrying so much about liable suits for doctors, as I am about making sure we know the intentions of the consumer and the intentions of that directive. Should there be anything in this law, anywhere, that does somehow not penalize a doctor or a physician or a health care professional from making a decision out of good faith,

interpretation of a directive, when that directive is ambiguous and unclear? Mr. Mackintosh: We are of the opinion that the act as drafted is good enough. I do not think we can make lay people lawyers or make them go to lawyers. I think any words have to be reasonably interpreted. There are always qu estions of

interpretation in any document, in any written word, so there will be some judgment calls that will be required. The test will be, was it a reasonable

interpretation, and if there is goodwill exhibited by the health care professional there should be no liability. I mean that is just common sense. I do not think we need any tightening up of the legislation in that regard. Ms. Wasylycla-Lels: I would like to raise one other matter pertaining to an issue that has been raised previously and that has to do with

Section 21 , the question about no onus to inquire about a directive. I am wondering where MARL stands on this issue of whether or not to have something in legislation that may encourage or discourage depending on which wording you choose, reasonable inquiry or whether it is best to leave it out of the act and leave it fall under common law cases to date. Mr. Mackintosh: After listening to Mr. Dalmyn, I thought yes, that is a good point, and although the subcommittee of MARL that studied this has not considered that, I would think that MARL and the health care consumer committee would support the repeal or the deletion of

Section 21 . I would think that it may be reasonable in some circumstances for a physician to make inquiries. Mr. Cheema: Mr. Chairperson I just want to ask, I first thought I would end my remarks but I want to know about this

Section 21 . You are asking that we should delete the whole

section and leave it very vague, and then how is the law going to interpret that section. That means that if as a patient you are wasting your one physician or you are wasting one hospital or something goes wrong, you are putting that health care provider at a very unwanted risk. I think it is very open. It simply will, in my opinion, I am subject to change, but I want to know how do you recommend that we should take this out completely. Mr. Mackintosh: There are three options here, either leave it as is, take it out, or three, require the professional to make reasonable inquiries. Now either one of those, I think, would be fine. I would say that even taking out

Section 21 ,1 still would think that the court would conclude that there should be reasonable Inquiries made. For instance, If a statement had been given to a health care provider that a health care directive existed or that oh yes, I wrote this down or Joe Blow will take care of that. If there is something that twigged in the health care providers mind here, or should have twigged, that there is a health care directive, then I think an inquiry should be made and 1 think the law would require that. I think that without

Section 21 that would be good law. Mr. Ch eema: Mr. Ch airper son , can Mr. Mackintosh tell us then, if we have to include that, that means that we may have to amend The Manitoba Medical Act and the College of Physicians regulations also to make sure the physician follows those guidelines. If we are forcing a health care provider, not only physicians, and the hospital, personal care homes and other health care providers who are involved in a patients care basically, then we have to change so many other regulations to make sure they are following the law.

June 19, 1992 LEGISLATIVE ASSEMBLY OF MANITOBA 122 Do you think that is one way of-it is not opening the whole area of problems and trying to do something which may or may not be possible? Mr. Mackintosh: I do not come from a considered study of this issue, and so I would defer to your knowledge of regulations under The Medical Act in that regard. I would think that just as a matter of good ethical practice, one would ask, is there a health care directive, just as much as one would ask, do you have any allergies? Mr. Cheema: Mr.

Chairperson, that is why I think if we are to follow your guidelines and your views and then the definition under the ethical physician, I think we need to probably look in terms of a College of Physicians regula tion and also The Manitoba Medical Act, because if we are going to ask them to follow all the instructions, then there has to be a law which will force them to do it.

We cannot just rely upon something which we would like them to do, but that is part of just one aspect of the law and not the others. 1 am just concerned, and certainly we will ask the legal opinion from the minister's office whether that is possible or not and what are the long-term implications of putting such a regulation in this law. *** Mr. Chairperson: If there are no further questions or responses, then we will proceed to Bill 75, and I am going to ask Mr.

Mackintosh to stay up front and continue on with his presentation in regard to The Health Services In sur ance Amendmen t and Consequential Amendments Act. Would you care to make your presentation now? Mr. Gordon Mackintosh (Manitoba Association for Rights and Liberties): I have just one concern, Mr. Chair. Ms. Wasylycla-Lels: Could I suggest just a quick five-minute recess while we Inform the Minister of Health (Mr. Orchard) that his bill is now up. I think he would want to be here. Mr. Chairperson: What are the wishes of the committee? We will recess for five minutes. *** The committee took recess at 3: 17 p.m.

After Recess The committee resumed at 3:41 p.m . Bill 75- The Health Services Insurance Amendment and Consequential Amendments Act Mr. Chairperson: Would the committee come to order, please. I am going to ask Mr. Gordon Mackintosh of the Manitoba Association for Rights and Liberties to come forward, please, on Bill 75, The Health Services Insurance Amendment and Consequential Amendments Act. Mr.

Gordon Mackintosh (Manitoba Association for Rights and Liberties): By transferring powers from the Manitoba Health Services Commission to the minister under Bill 75, we ask, as consumers of health care and as the people for whom the health system is for, what assurances are there to ensure our due share of input into health care policy and priorities? We cannot say that the Manitoba Health Services Commission adequately defended or stood up for the considered interest of consumers.

We do not oppose this bill in principle, but raw ministerial power is of grave concern given our experience over the last year or, indeed, the last three years. I hope the Minister of Health (Mr. Orchard) will read these comments. The Health Care Consumers Rights Committee is comprised of repr ese ntative s from many organizations, as well as comprised of individual perspectives. It has been active since 19 80, conducting seminars, research, advocacy services, and has lobbied legislators and conducted outreach on issues of public concern.

Our experience with this particular Minister of He alth has been an acid test. Despite seven requests since last June for a meeting with the minister to discuss what should be our mutual concerns, we have been propelled here today to express our surprise, our indignation, about an administration which has shut out one of the most valuable perspectives that can be brought to this health care system, that of consumers, organized consumers.

Now it can be said that everyone is a health care consumer, but many individuals, despite their individual contribution, cannot bring a perspective in a co-ordinated way with careful research and the articulation of common concerns that our committee can bring. The minister has created the Health Advisory Network, and its committees do accommodate the

123 LEGISLATIVE ASSEMBLY OF MANITOBA June 19, 1992 perspectives of many individuals, but the Minister of Health needs more than that. The minister needs to hear from organized consumers. He needs to hear of the common concerns, the research, and the positions that are taken after considered discussion among consumers. The minister should invite our contribution with a welcoming handshake. We need him, he needs us, we are a balanced public policy. We acknowledge that we are but one interest of many, but our organization of consumers, which bridges common concerns, is a valuable resource for this government.

Now I quote the action plan which the Minister of Health has recently unveiled, quote: We are confident that a systematic effort to empower individuals can help ensure that they become an increasingly powerful force for improvement in health services and in the health of Manitobans. After five months with no reply from the minister to our request, no reply whatsoever from his office or from any official to a request for a meeting, we wrote finally to the opposition caucuses for a meeting with them. There were the welcoming handshakes.

Those caucuses eagerly embraced so many of our recommendations that four and arguably five private members' bills were introduced or announced this session to which the government has not even spoken to, to our knowledge, and now this bill. The minister supplants the Manitoba Health Services Commission. The Manitoba Health Board is created. Manitoba's health care system, to my understanding, is the largest single item of public expense in this province, and it is arguably the most critical in terms of human life itseH and community wellness.

Yet, the evidence is that this area is the least accountable to the community, let alone to its consumers. Nowhere in Bill 75 can assurances be found that greater public input or patient em powerment respecting health care policy or priorities will be facilitated. There is no plan for, for example, publicly elected hospital boards or publicly elected regional health boards. In the least, the Manitoba Health Board should be given specific advisory responsibilities. Its composition should be clarified to req uir e the appointm en t of co nsumer representation. Recall the words of the action plan.

Even with these recommended improvements, the minister still must adopt an attitude of openness, for he represents the interests of all stakeholders in the health care system. We urge and we request the minister to share his valuable time with our committee to explore a perspective that will ensure input from which the government must make its decisions from an enriched perspective. Thank you, Mr. Chairperson. Ms. Judy Wasylycla-Lels (St. Johns} : Mr.

Chairperson, again I would like to thank Gordon Mackintosh and all memb ers of the Manitoba Association for Rights and Liberties, for appearing before us this afternoon making a brief that is very much relevant not only to Bill 75 before us today but also in terms of the government's stated health care reform plans. I again want to commend the work of the association for year after year, over the last decade or so, pursuing advancement on behaH of health care consumers, seeking meaningful input in a role in the decision making arou nd health care and working with individuals and communities to help themselves.

I think that the goals and objectives and record of MARL, and particularly your health consumers committee, are examples for all of us and particularly for the government of the day. Mr. Mackintosh, you have referenced your own experience in making contact with this Minister of Health (Mr. Orchard) and this government. It is not unlike examples told to me from other organizations and groups. It is not unlike the experience some of us as MLAs have experienced in getting some sort of reasonable conside ration to our inquiries, questions and requests for information.

I, in terms of my own example, can cite numerous examples where we have written to the minister and after over a year receiving no responses. It is clear that the minister, when he wants to respond on an issue, chooses to do so and, when he does not want to, probably for philosophical or policy reasons, does not do that. Point of Order Hon. James McCrae (Minister of Justice and Attorney General}: My point of order, Mr. Chairperson, is more in the nature of a question. Does the honourable member have a question of clarification to put to the presenter, or does she want to make a speech?

There is a time to make speeches, but it is not now. Mr.Chalrperson: The honourable minister has no point of order.

June 19, 1992 LEGISLATIVE ASSEMBLY OF MANITOBA 124 *** * (1 550) Ms. Wasylycla-Lels: Yes, I have many questions to put to the presenter. I am very concerned about the inclusion of the concerns and interests and ideas of health care consumers in every aspect of our health care system, and I think the presenter has given us some very cle ar-cut examples and evidence of health care consumers being totally, appallingly neglected by the present administration, in particular the Minister of Health (Mr. Orchard).

I wish the Minister of Health were here right now to hear these concerns, because that is the person who is in question, that Is the department that we are dealing with, and that is where change has to come from. I hope that he will return soon and hear the concerns of people at this committee. I have many questions, and I begin with questions around communication between this organization and the Minister of Health. Mr.

Mackintosh, you have indicated that you have had seven requests in to the minister for meetings, for responses to information, for calls, and you have not even had the courtesy, I believe, of an acknowledgement. Is that correct? How many different types of requests have you put before the minister in terms of issues when you have sought input, when you have sought information, and have you ever received any kind of response from the Minister of Health? Mr. Mackintosh: Our requests for a meeting began last June, as I said. That was followed up with letters to his office, letters personally to him.

It was not until February of this year that we did get a response from the minister. It was a brief response, and the minister at that time said that he is unable to meet with us because of the pressures of the Legislature. Well, we came do wn her e today to the Legislature. He is not here, so again, he does not hear our concerns. He did arrange for a meeting with two officials of the Department of Health. We met with them and they expressed concern, as did we, that we are discussing policy, and they felt ill at ease discussing policy and suggested, really, your meeting should be with the Minister of Health (Mr.

Orchard). Of course, we had to advise them that that was not possible. These are well-meaning people in our committee. It is a well-established committee, people from the aboriginal commu nity, from seniors, from an organization concerned about immunization; it is comprised of representatives from CMHA, from the Manitoba League of the Physically Handicapped, from the AIDS Shelter Coalition. Ms. Wasylycla-Lels: Mr. Chairperson, the bill before us, Bill 75, is the amalgamation of the Manitoba Health Services Commission and the Department of Health.

By the minister's own words, this is being done in the interest of health care reform, to enhance the opportunity for making inroads in terms of an overhauled health care system that Is more effective, efficient and sensitive to the needs of patients and consumers. · I would like to ask the presenter, Mr. Mackintosh, how he views the whole area of empowerment and community self-help models and rights for patients in terms of the health care reform agenda. Can you have health care reform without major changes on the front of empowerment and community self-help models? Mr.

Mackintosh: I will just be brief in my response. Our committee is concerned about the lack of consumer input into public policy making. There has been a disproportionate input from health care professionals and administrators in the past. We are not saying there is any ill will there at all, that is just the historical development, that Is what is the status quo. There has to be more consumer input in health care, as in many other areas. Number two, health care consumers have to be more involved in their own personal health. I know the medical profession would welcome that.

On those two fronts, there has to be change. It has been diff icult to organiz e health care consumers. People are in and out of the health care system, they want to leave that experience behind. It Is usually not a good experience. It Is a time of bad health, a time of high stress. There are people in the health care system that are long-term users, and they have banded together to form a consumer movement. This is all part of a worldwide movement; there is nothing unique in Mani toba about the health care consumer movement. There have to be dramatic changes.

Certainly Bill 75 does not echo at all the words of the action plan. There is nothing in there that we see that will facilitate patient empowerment, either respecting health care priorities in general or individual health.

125 LEGISLATIVE ASSEMBLY OF MANITOBA June 19, 1992 Mr. Chairperson: I want to at this time remind all members that I believe that there was an agreement to adjourn the House probably at four o'clock or thereabouts. I wonder what the wishes of the committee are, whether we wantto continue beyond four o'clock. What is the wish of the committee? Ms. Wasylycla-Lels: Well, I would say if the Minister of Health (Mr.

Orchard) is not available to be here, then we might as well adjourn to a time when it is convenient to him, with all of our apologies to the presenters who have obviously taken time from busy schedules to be here to communicate something very meaningful to the Minister of Health. Mr. Chairperson: The bells have started ringing. There will be a vote and we have to

Document details

Collection	Manitoba — Debates (Hansard)
Citation	35-3-la5
Type	hansard
Volume / chapter	35th 3rd hansardpdf la5.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	47dd4827efd99b66f4500097664b173be7bbf140

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