LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON STATUTORY REGULATIONS AND ORDERS Thursday, 21 May, 1981 Time - 8:00 p.m. CHAIRMAN - Mr. Warren Steen (Crescentwood) BILL 17 - THE MEDICAL ACT MR. DEPUTY CHAIRMAN, Abe Kovnats (Radisson): We have a quorum. This Comm ittee will come to order. The Chairman advised that he would be a little bit late but would be here quite soon so he's asked me to take the Chair which I have done. We are on Bill No. 17 , The Medical Act and I believe the item under discussion when we left just before the supper hour was Item 37. All right we will start on Clause 37. 37 -pass.

MR. SAUL CHERNIACK: Are you sure it's 37? MR. DEPUTY CHAIRMAN: Well he signed up to 36(2). HON. L.R. (Bud) SHERMAN: We're on 36(2), Mr. Chairman. MR. DEPUTY CHAIRMAN: We are at 36(2)? If there's any more discussion on 36(2) I will . MR. SHERMAN: Mr. Chairman, I un dertook to consider the questions raised by Mr. Cherniack and others and study them over the dinner hour break which I did. I propose that the

section remain as is in the legislation. The fact apparently is that the Law Society operates no differently and this is not an excep tional or a uniqu e situation. Further to that, the difference in terms of operation here vis-a-vis that in the case of, for example, the registered nur ses lies in substantial

part in the num bers. We're looking here at a council; we're looking at a repres entational body of 28 elected representative from electoral districts who represent, in each of their cases, a limited number of profes sionals ranging probably in the area of 40 to 45 to 50 depending on precise geography.

Whereas in the case of the registered nurses we're talking about a membe rship of some 9, 000 or 10 ,000 and a smaller dir ectional body, a smal ler management body in their board of directors, so that the line of communic ation between the elected representatives and the membership thems elves is much closer and much tighter in the case of the college than in the case, for example, of the registered nur ses and so far has proved to be workable and is, therefore, pr esented to the Comm ittee in this wording and I believe the wording can be justified. MR. DEPUTY CHAIRMAN: Mr . Cherniack. MR. CHERNIACK: Mr .

Chairman, I, too, had a discussion with representatives of the council and the conclusion I came to is that they have no real communic ation with their membership at all. But the 613 other conclusion is that the membership doesn't seem to care so I wouldn't get too upset about it. I gather that they get hardly any turnout at all from the membership at their meetings which may mean they're very happy with what goes on. If they don't care enough to turn out and raise a fuss then why should we.

On the other hand, they require members to give them notice that they are coming - I think six week notice or some ridiculous thing like that. But I, too, checked The Law Society Act and I see that the Law Society has all sorts of practice. They carry out a procedure which I think is commendable but I find they do it voluntarily; it's not in the Act. MR. DEPUTY CHAIRMAN: Item 36(2) -pass; 37 pass; 38(1) -pass. MR. CHERNIACK: I have marks on 38 (1) . I don't know whether they're original to me or if they were suggested by MARL and I'm just looking to see. Yes, it is they.

They're suggesting that 38 is far too broad, gives powers to the Comm ittee or any member to inspect books at his place of practise or elsewhere and review the professional competence. They're su gge sting, I think, that they should have the council's approval before they do it. I certai nly think, Mr. Chairman, that they may be asking a little bit too much caution but 38( 1) says that the standards commit tee, or any memb er thereof, may inspect books at the place of practise or elsewhere.

Or elsewhere may mean a hospital -and I don't recall whether Miss Seidel had some comment to make on that or not, I'm not sure. But I certainly question any member toddling in somewhere and saying, I want to see your books, I want to see your records. I think there has to be some formality involved. If it's the Commit tee then if it designa tes a member or designa tes a person to do it, okay.

But the way it is written, as I read it, is that any member of the Commi ttee can walk in and inspect books, records, without any complaint. it seems to me there ought to be some basis on which they're going to go, not just snooping. I don't know whether the Minister would want to suggest some variation but I certainly think that the snooping right that's given is more than our police have I believe. Not that I know much criminal law but I don't think the police can walk into my house and search the house without a warrant, or my place of busine ss. Here they'r e say ing jus t anytime at all.

I certainly would like to hear some suggestion of some streng thening of the restraints on the Commit tee or any member. MR. DEPUTY CHAIRMAN: Mr. Jenkins. MR. WILLIAM JENKINS (Logan): Just to reiterate what my colleague has said. I think that these powers that the Association or the college here is asking for are very severe. I can remember a few years ago when we were bringing in consumers legislation, we really got ourselves into a jackpot from the then Opposition and now government on snooper clauses. Now if you want to see snooper

Thursday, 21 May, 1981 clauses, this is a real snooper clause; not only a place of business or elsewhere. I think that's pretty broad; I think that's very, very broad coverage. I certainly would expect the Min ister who is one of the mem ber's who was here, who complaine d very bitterly at that time about snooper clauses, that he would cert ainly now put his money where his mouth is and make sure that there is some cutting down of this power that we are going to give the people to snoop. That's really what it boils down to, Mr. Chairman. MR. DEPUTY CHAIRMAN: Mr. Downey. HON. JAM ES E.

DO WNEY (A rthur): My br ief comment, Mr. Chairman, would be that it is pretty clearly spelled out that it's in direct relationship to the practice of medicine and, as the impression that I would get from the members opposite, that it was to do almost with any books that the individual may have. I think it is pretty well spelled out that it is in line with what the Act is trying to do and I have no difficulty with it the way it is, Mr . Chairman. MR. DEP UTY CHAIRMA N: (1) - pass -Mr. Cherniack. MR. CHERNIACK: I agree with Mr.

Downey that it relates to the practice of medicine but it is a matter of competence. it's not a matter of doing anything illegal, improper, it's only is he good enough?

For that, as I under stand it, hospitals have ti ssue comm ittees, hospitals have peer review commit tees but this says that any member of that committee can walk into any doctor's office during reasonable hours and start looking over his records or he can go beyond that. (I nterje ction)-Well, of course it has to do with medicine but there is nothing that says that upon an allegation being made or complaint being lodged, qu estioning the competence of a doctor, then a mem ber may.

You know, there has to be some basis for it; otherwise, you've got these people with a right to wander in and out on their own decision. I really feel that this a snooper clause, no question about it, without any authority and I'd like to think that somebody will volunteer a reduction of the power. lt may be, which I'll say, and on a complaint being lodged . The Commit tee or any mem ber designa ted by the Commit tee may proceed. The note in the college's brief says that at the present time the college standards review the standards of practise within hospitals; on occasion it does enter the physician's office.

This has always been on a voluntary basis and has never been refused by any mem ber of the college; nevertheless, it was felt desirable to have this right est ablis hed in The Med ical Act . Mr. Chairman, without an apparent need for it -they say that right off the bat -has never been refused; without an apparent need. They are now asking for a power which is very broad and I really would like to make a major issue of this.

I'd like to feel that there's justification for giving any member of the Comm ittee, stimu lated by anything at all which may be mere curiosity, to walk in and to start inspecting books, records and other documents of any member at his place of practice or elsewhere. I don't how far the "or elsewhere" goes and then review the competence on direction from 614 council or on its own initiative. I don't mind if the Commit tee meets and decides that but surely no member shall have that authority. I want to suggest again that there should be a complaint, otherwise why go?

A complaint need not be formal, in my estimation, but there should be a complaint; then it should be the decision of the Comm ittee or a designated member thereof and then I think I could accept it. Now I'd like to hear comments. MR. SHERMAN: Mr. Chairman, this

section is in here for the protection of the public. I can't agree with Mr. Jenkins that this equates to the situation that was examined some years ago when we talked about the snooper clauses to which he referred to in The Consumer Protection Act. We're talking here about a specific specially in which the public has the right to be assured of its protect ion in terms of medical practice. In fact, it's standard practice now; in fact, the function exists right now under the rules of the college. What this proposed

section would do would be establish the right in The Medical Act. Taken with 38(2) and I realize we're not there yet, Mr . Chairman, but it's the same subject, it would, for example, establish the right to utilize the in volvement of perso ns with par ticular expertise. For example, the use of a psychiatrist to help audit a psychiatrist's practice. Let me say I'm not particularly hung up on this provision and I would certainly be prepared to invite the representatives of the college to justify it.

But I think that if you're going to charge a profes sional body, such as the Colle ge of Physicians and Surgeons, with the respon sibilities with which they are are charged, the heavy respons ibilities with which they are charged, they have to have an oppo rtunity to audit practices in order to ensure that standards and ethics are being universally maintained, or at least maintained as universally as possible. lt doesn't come as a surprise to any practitioner; I mean no one is forced to study medicine and become a doctor; nobody is forced to subject themselves to these kinds of disciplines.

All of us in the respective voca tions th at we cho ose su bject ourselv es to certain kinds of disciplines. In the Statutor y Or ders and Regu lations Comm ittee of this Legislature we recognize that we sometimes may have to work fairly lengthy hours; that's part of the job. Doctor s recogn ize th at because of the heavy responsibility they carry that their practices, their standards and their ethics have got to be monitored and evaluated. So no objection that I know of has come from the medical profession. But if my friends from Logan and St.

Johns are particularly disturb ed about it I would certainly ask the Commi ttee's indu lgence to invite the college representatives to justify it. MR. JENKINS: Mr. Chairman, we have already passed 36(2), (1) and (2), where the council doesn't have meetings, no general mem bership meetings. I don't know even if the total membership of the College of Physicians and Surgeons are even aware of some of the changes that are in this bill. There are no general meet ings held; that is what we were told by a representative of the college.

Now we have a standards comm ittee which is part and parcel of this council and I know it's part of the game and, as I say, Mr. Chairman, through you to the Min ister, we

Thursday, 21 May, 1981 are. as a Legislativ e body, no t only for the consuming public of this service but also, I think, we have to look after the people that are practising in this service as well. We owe them a responsibility. They are not all here; there are some people here. Now, I'm not satisfied with the way that these people get themselves elected to these boards and councils because it is a very peculiar method; one that is totally foreign to any association that I have ever belonged to.

But if the doctors aren't that hung up about it, then as far as their electing or appointing these peoples to these councils and boards that seem to run their affairs, and they have the power of life or death over these people because, on their say so with the certain provisos that are here for them to appeal, these people can say whether they work or not to work.

You know this is practically what we call in the trade union movement is a closed shop; it is a closed shop. it's an absolutely closed shop and I've been a member of a trade union for a long time and I can tell you I am not in favour of a closed shop because a certain clique of people can get together and if they don't like you they can make damn sure that you don't practise or you don't work and that is one of the things that is dangerous in this legislation that you're putting in here now. I appeal to the Min ister just to think about it a little bit.

You're putting tremendous power into the hands of a very few people who, by their own admission today, have said th at the people ar e no t th at interested; they don't want a general membership meeting to even approve their bylaws. I don't know how they prove their bylaws. So I say what we're getting is the reports here of a very few people, not all the people who are members of the College of Physicians and Surgeons, and they are the licensing body, not the Manitoba Medical Association which, for all intents and pur poses is the bargaining unit, but these people as the licensing unit.

So I say to the Minister it's a very serious amount of power that you're putting into the hands of a very few people. MR. SHERMAN: Mr. Chairman, before making a final judgment on it could we ask for an opinion from Dr. Ewart rep resen ting the college and from Legislative Counsel? MR. DEP UTY CHAI RMAN: Agreed? Dr. Ewa rt, would you care to . . DR. W. B. EWART: I'll be pleased to. I haven't spoken today at all and I think this is a very im portant issue and I think ther e is lack of und erstan ding to some extent as to what the standards committee does and perhaps what the profession does.

I think it should be realized that right from the time we entered the profession and once we get into, at least into hospital work, certa inly there is a constant review taking place, peer review taking place with patients' charts, the documentation of charts, the tissue comm ittees; this is all part of the environment of medicine. The constant reviews that are taking place are welcomed; it's part of the impr ovement; it's part of our education and continual educat ion. I think I can safely say almost no question that this is part of the profession , this is part of the way things are done.

In fact, I don't think in some ways, if you wish, that there can be any group, with the possible exception of the Law Society, that no 615 group has as much, how shall we say, self-continual perusal and review. I was just back at the hospital a short time ago and I did a procedure. I write that down; I check on it; I check the intern; all these things are done because, at any moment, this will be coming up for review by my peers.

Now on the standards comm ittee there's about 200 at least that do this job and officially report to the college. it's not a discipline commi ttee, it's done on the basis of overall education; it's a peer review that's taking place all the time; it's part of the profession. We're inbred with it I guess. And quite true sometimes we figure for God's sake I'm fed up writing that note or this type of thing but this is part of the continual procedure. So we really - I think I can state this for almost all the members of the profession -we just take this for granted.

The only difference here is an extension from the hospital into the offices. Now we'r e not alone on this I un dersta nd; I understand that the Law Society has people that go in all the time on a routine basis. I stand to be corrected but I understood this. But nevertheless, in our own cases this is exactly what takes place. The peer reviews are done sometimes in our particular place, where I work with others we do this on our own but we take it for granted that this is the type of thing that would be done by the college because the college is standard.

The protection that we have is that this Standards Group, this peer review group, that we constantly use is accepted and welcomed; it's part of the educational routine and probably the most impo rtant method that we have in keeping standards high. Now we apply this also; we have other jobs that we do and that includes such things as investigation of laboratory, radiological unit s and that. We'r e doing this all the time; there's a constant review taking place. I don't know whether the members here realize that probably, I believe anyhow, we're one of the best in Canada.

There's a constant review of all blood specimens that are taken; these are sent to independent authorities and end up in the college and the members then go over these reviews that take place, appraise them and then we will call up the lab director or whoever it might be and say: your calciums are off, it's about time that you settled down we've had two reports like this. Would you send us a letter explaining why and they send it. Now this is different from the inquir y. This is the method which we think is an absolutely vital part of the college; this is the real, if you wish, individual self-discipline.

We haven't got any powers there except to re commend. You'r e not rea ding electroc ardiograms; we looked over your electrocardiograms and two of them were very poorly read. You better check up on this; we suggest that you to this. But there's no other power; it's a peer review type of thing. I'm afraid I'll have to leave it in that perspect ive. I'l l be pleased to answer any questions. MR. DEPUTY CHAIRMAN: Thank you. Legislative Cou nsel care to make any comments? MR. A.C. BALKARA N: Mr . Chairman, the only comment I believe I can make at this time is that 38 ( 1) , as it's written no w, as suming the entir e

Thursday, 21 May, 1981 Comm ittee or any mem ber thereof were to appear at the office of a medical pra ctitioner or indeed elsewhere, assuming it's a hospital and wants to take a look at certain books and records, I don't think that the hospital or the doctor is un der any obligation to let him in. He could tell him, well, you jus t go back and bring back a cour t order or warrant, otherwise, I won't show it to you. lt simply says may and there's no obl igation compels, as I read it, the doctor to open his doors and open his records and say, here you are, take a look. MR. CHERNIACK: I think Mr.

Balkaran is talking about the rights of the individual but I don't think that they'll get away with it very long; they will be charged with conduct unbecoming. I'm sure that if they say, here we have a member wanting to look at your records, you won't let him do it, they will haul him up with the Discipline Comm ittee. MR. BALKARAN: I don't think a judge will, really. MR. CHERNIACK: I don't think a judge will either but their Discipline Comm ittee may well do it. (I nterje ction)-Well, that's pretty remote. I wanted to ask Dr.

Ewart, in describing this peer review, to what extent did you mix in hospitals, labs, other places with the office of the member? DR. EWART: We're putting that in now with the office. MR. CHERNIACK: I know what you say here, that it's been on a voluntary basis, you've never been refused so you've never had the problem that you are dealing with here. DR. EWART: No, no, we haven't but then we haven't attempted in any particular way to move in that direction. MR. CHERNIACK: Are you now planning to . . . ? DR. EWART: We're hoping, yes, it's part of our .. MR.

DEPUTY CHAIRMAN: I'll tell you, excuse me, jus t one moment. I' ve just been advi sed th at Hansard are having difficulty in identifying the voices. That's the reason that I have jump ed in with the interjection with the names, so try to put up with it. Dr. Ewart. DR. EWART: No, we're attempting to move beyond the area of the hospitals into the offices with the anticipation that we will be able to impr ove standards in doing that as well. MR.

CHERNIACK: Are you planning to walk into any doctor's office without any notice and start looking at his records to see whether he keeps his records on each patient adequately, that there's a full file kept on the patient? Are you planning to just walk in one after the other after the other, like take over one business building and cover all the doctors there? Is that the way you would operate? DR. EWART: I can't visualize it being done by the standards committee without some notification; it may be.

I would defer, if you wish, to another 616 member of the comm ittee who may be more involved in that line, but I can't visualize it being done in that way because the purp ose of the standa rds comm ittee, as I said, is peer review. it's not a snooper if you follow what I'm saying, except in the sense of us snooping on each others charts by comm ittees that we set up ourselves in hospitals and so on. MR. CHERNIACK: And if you will hear what I'm purposing, see what 's wrong with that?

I'm proposing to say "and on receipt of a complaint the committee or any designated member thereof may," in other words, I'm suggesting that you will not go into any old doctor's office on any occasion without some reason unless you are really prepared to start going to every doctor's office. Frankly, I don't think you are.

I think that when you find, let's say, in some hospital tissue comm ittee or some thing, you feel that a doctor seems to be slipping or, if you get a report from anybody else, a nurse who may say this doctor doesn't seem to be up to his usual level, then you would start looking into the matter and then I think that the discipline committee should say, "well then, let's look into that doctor's records," and I would welcome your doing it, I do believe it's important.

But the way this is worded I think is broader than you need; it's certa inly broader than you've ever had and I can't think of anything less broad than this is. lt means anytime, any reasonable time, you walk in any time, any member can walk in and say, "I want to look it over and look over the records ." Now, did you say 200 mem bers do that? DR. EW ART: Yes. We have exte nsions at the standards comm ittee so that there are almost 200 people who are doing the work in hospitals now. MR. CHERNIACK: In hospitals? DR.

EWART: Yes, and they report to the college, but although you may not realize it, but we really do inspect each other. MR. CHERNIACK: They have a special task. They go to a certain hospital and they . . . DR. EWART: Or a certain district, sir. MR. CHERNIACK: Here it says any member, any one of the 200, or you may have to increase that number if you're going to start going into offices, any one of them can walk into any doctor's office. Frankly, I doubt that if you want that power, I doubt if you'll use that power and it seems to me until you need it, you shouldn't be ask ing for as broad a power.

I want to kno w what is wrong with my suggestion? I see you're going to say that on receipt of a complaint isn't good enough, but how about in the event that they believe that it is in the best interests of the public so to do of a certain member; then, the committ ee or any designated member, in other words, the committee would say, "Dr. Jones, you go and check on this one. Dr. Smith, you take over that district ." But somehow there has to be some sense of order that is not reflected in this wording that you now have.

Now is there anything wrong with my sug gest ion to sort of make you hesitate, make your mem bers say, 'I'm going to do

Thursday, 21 May, 1981 something that's pretty drastic and I will consider carefully gett ing approval from the comm ittee or the sub-committee and I will do it." Not just anybody at all but for a reason. DR. EWART: I guess the first thing that bothers me is that a complaint starts it because that's not the point. We know this in hospitals and we're used to this in medici ne; that for the educational purpose you don't want it to start as a complaint, you want it to be a continual peer review, sir, and that is the subtle difference I know, but there is a subtle difference between standards and enquiry.

If it's a complaint, then it goes to enquiry, and we're asking, in many respects we have the power to, if you wish, you know, go in and take action of the type that you were saying you want to have us do. This is a more subtle thing and, I guess, it's very difficult for me to explain. it's an educational thing; it's an accordance. This is why I wasn't questioning too hard about, I can't visualize us going in without letting somebody know.

I can see a clinic inviting the whole group of us in, a group through the central, and it may be that it should come that the permission would have to come through the Standards for somebody to go out rather than any one of the 200 sort of deciding on the way home, I'll drop in and inspect somebody. I understand what you're getting at there. MR. CHER NIACK: That's what I mean by any designated member. DR.

EWART: I've put across something that I guess is very difficult un less you're involv ed with it, this subtle difference education and the cooperation of the doctors involved and that it's almost built in, it's taken for granted, it's accepted, it's part of it. MR. CHE RNIACK: If you read this sect ion, cooperation is not taken for granted at all. There is no notice given, there is no by your leave; there's just a march into the office.

I'd like to think that you start out with a softer approach and if you find this inadequate you come back and may I ask two other questions; firstly, where do you mean by elsewhere? Where else do you want to go? DR. EWART: This is if the books are in the home for example, he may take his histories home or it may be that the college offices, the documents in the college offices that he brings in, this type of thing. MR. CHERNIACK: College . . . DR. EWART: . . . the offices of the college. He may bring them down with him. MR.

CHERNIACK: The question I was going to ask is, has there been ample notice to the profession of your intention to ask for this kind of legislation? DR. EWART: Yes, I believe so, but I'll check. MR. CHERNIACK: Mr. Sherman said that you send out periodic memos. DR. EWART: Yes, right, and defer to the registrar on that. MR. DEPUTY CHAIRMAN: The Honourable Min ister of Health. 617 MR. SHER MAN: Yes, Mr. Chairman, the membership and all its members received a news letter.

In fact, received more than one news letter outlining the provisions of this Act and all of them were given the opportunity to acquaint themselves with all the provisions that are being pursued in this Act and through their elected representatives to make their responses. I can't accept Mr. Cherniack's suggestion. I think that to follow the course that he proposes defeats the whole purpose of the evaluative pr ocess and the peer review process and the protection of the public. If you're going to wait for a complaint, that's too late.

We want the standards and the eth ics and the procedu res high before somebody complains and who is going to do the complaining? In this case it is peers who have some kn owledge of what their peers are doing obviously, who are able to make that evaluation. A complaint from the public or a complain t from a nu rse, although not illigiti ma te by any means, do no t necessarily have the kind of validity in this area that the review personnel would have, the standards comm ittee personnel would have.

Complaints can be handled in the normal process but this is to head off complaints, to ensure that the system is sound and it is a practice that is followed elsewhere, in other provinces. it's a practice that's followed here under the rules. it's a practice tha t every me dical practitioner in this province knows, that he or she is subject to and it's a practice, as I understand it, that's followed by the Law Society. Therefore, I cert ainly am prepared to entertain any suggested amendment but I'm recommending the subsection to the commit tee as it is written. MR. CHERNIACK: Mr.

Chairman, I just want to point out to the Min ister that the du ty of the Leg islature is to concern itself with the public interest. lt's also to concern itself on behalf of the ind ividual agains t the gr oup and this sec tion, I believe, is twofold. Firstly, it is to protect the public that we want the council to maintain a standards comm ittee, but I think also, it im poses on the member the threat of a walk-in at any time and I don't think that's intended and I have to tell the Min ister that the only rights that I'm aware of in the Law Society is to inspect the trust accounts and nothing else.

I believe it has nothing to do with standards of practice of com petence. lt has to do with the trust account and an accountant walks in and takes the trust account, only the trust account and looks it over to make sure that all moneys received are indeed recorded and in the bank. Just to bring it to a head, I would move THAT the word "designated" be inserted in the 3rd line between the words "any" and "memb er" so that we will at least know that mem ber has an authority given to him by the comm ittee. MR. DEPUTY CHAIRMAN: Are the members aware of the amendment? Are you ready for the question?

The Honourable Min ister of Health. MR. SHERMAN: My suggestion on Mr. Cherniack's proposal would be that if we are going to accept insertion of the term "designated" that we should be more specific than that in order to ensure that we are meeting the objective of this section. I am not going to belabour the comm ittee with what I see as

Thursday, 21 May, 1981 the objective of the

section and I would suggest that the insertion should be the phrase, "designated by the comm ittee." MR. CHERNIACK: Or then say, or any member thereof designated by the comm ittee. Is that what you are suggesting? That's fine with me. MR. SHERMAN: Yes, designated by the committee, right. MR. CHERNIACK: In the third line, the comm ittee or any member thereof designated by the comm ittee may. MR. DEPUTY CHAIRMAN: Is there a motion? MR. SHERMAN: Take out the thereof or any member and the commit tee or any member designated by the comm ittee.

Take out the last two words, "thereof may" and make it "any member designated by the comm ittee may." MR. DEPUTY CHAIRMAN: The Honourable Legal Counsel. MR. BALKARAN: I think that removal of the word "t hereof" from an

interpretation standpoint might cause some problems. Thereof relates back to the comm ittee and I think that should stay in because any member could be a member of the college, a member of the council. MR. CHERNIACK: I interpre ted it that way and I assumed that they want the right to say to Dr. so and so, you go on in and check it. I think that's more of a peer than the comm ittee itself. I have no objection to the thereof being removed as long as the comm ittee designates a member of the society of the college. MR. DEPUTY CHAIRMAN: Mr. Walding. MR. D.

JAMES WALDING: If it's any help I noticed tha t the following sec tion 38 (2) uses the word desig nated in the form, its designa ted mem bers when referring to the standards comm ittee. Perhaps it would help to have some uniformity in the use of language. MR. DEP UTY CHAIRMAN: If I could have the motion written so that we can have a vote please. MR. SHERMAN: So the proposal would be, Mr. Chairman, that the concluding phraseology in 38(1) would be: And the commit tee or any mem ber thereof designated by the comm ittee. MR. CHERNIACK: We agreed to rem ove thereof to broaden ... MR.

SHER MAN: You'v e agreed to remove the thereof, all right. MR. CHERNIACK: The college feels they should be able to designate any member. MR. SHERMAN: Well, tha t was my origi nal suggestion that we take out the thereof. Then there 618 was an argument as to whether thereof should be reinserted because in the matter of interpreta tion, legislative counsel says it has to be in there for clarity. MR. CHERNIACK: If it's to be a member of the comm ittee it has to be there, but if it doesn't have to be a member of the comm ittee then it doesn't have to be there. They want it out. MR.

DEPUTY CHAIRMAN: Are you ready for the question? MR. BALKARAN: Wait a min ute, I'm not clear on the motion. MR. DEPUTY CHAIRMAN: I'm sorry, Mr. Balkaran does not have the motion here, and if we could have some assistance so that I can read out the motion before we have a vote. Whoever is making the motion, would you repeat it slowly so we can get it written down? MR. SHERMAN: Mr. Chairman, could I go back to the origin al amend ment that I sugg ested to be applied to Mr.

Cherniack's original suggestion, which would have made the clause read as follows, and tha t is "by mem bers of the college and the comm ittee or any mem ber desi gna ted by the comm ittee may . . . " I would like Legislative Counsel's opinion now on that wording because there appeared to be some unacceptability. MR. BALKARAN: Mr. Chairman, the removal of the word "thereof" opens it up to the commit tee to designa te any mem ber.

By definition, "m em ber" means a person who is registered under this Act, so that you can go outside of the comm ittee and design ate another physician and authorize him to carry out this inspection. Now, I don't know if that's the intention or is it the intention to designate a member of the comm ittee, as opposed to the entire comm ittee and I'm not so sure which way the college wants to go. MR. SHERMAN: Mr .

Chairman, my feeling would be that the intention would be to have it a member of the comm ittee, but if the college doesn't require that, then we'll take the word "thereof" out and go with the word ing as pr opo sed -"any member designated by the commit tee may . . . " MR. BALKARAN: I'v e got the motion now, Mr . Chairman. MR. DEPUTY CHAIRMAN: I'm going to ask Mr. Balkaran to read the motion. Mr. Balkaran. MR.

BALKARAN: The motion reads as follows: THAT subsection 38(1) of Bill 17 be amended by striking out the word "thereof" in the 3rd line thereof and substituting therefor the words "designated by the commi ttee." QUESTION put on the am end ment , MO TION carried. MR. DEPUTY CHAIRMAN: 38(1) -pass. I think I'm just about ready to give back the Chair to Mr.

Thursday, 21 May, 1981 Chairman, but before I do, I would like to ask the Honourable Member for Portage, because of the nature of the bills that are being discussed at this time, these medical bills, would the Hon ourabl e Member for Portage like to be referred to as Dr. Jekyll or Mr. Hyde? MR. CHAIRMAN, Warren Steen (Crescentwood): 38(1) as amended -pass; 38(2) -pass; 38(3) - pass -Mr . Cherniack. MR. CHERNIACK: Just how does it work? If that member do es not serve a period of refresher training, what is it, is that un professional conduct? What does the college do? MR. CHAIRMAN: Your question is, Mr.

Cherniack, to legal counsel or to Mr. Sherman? MR. CHERNIACK: To the college, I think. But if Mr. Sherman knows, that's fine with me. MR. SHERMAN: Mr . Chairman, apparently un der present practices, the Council may recommend that a member of the college serve a period of refresher tr aining, but this is a new provision in the legislation. (I nterje ction)-No, it doesn't say it, but I'm saying it. it's a new provision in the legislation but the practice has been that the Council has been able to recommend that a member of the college serve a period of refresher training.

So we should ask the college as to how the method of such recommendation is applied and what results if the member does not take that refresher training? MR. CHAIRMAN: Mr. Jenkins. MR. JENKINS: Mr. Chairman, through you to Mr. Sherman, does the clause or sect ion, sub-clause that we're dealing with, it's not manda tory. it's "ma y" - the council "ma y" recommend that a member of the college serve a period of refresher training and if the member says get lost, then what? MR. SHERMAN: I don't know. We'll have to ask the college. MR. CHAIRMAN: Mr. Balkaran. MR.

BALKARAN: I don't want to attempt to answer that question; that's for the college to answer. I just noticed something for the first time, Mr. Chairman. The thrust of this is to recommend that a member of the college serve refresher training. I would have thought it would be a member of the medical profession. MR. CHERNIACK: The college is anybody; it's the Council that is the executive. MR. BALKARAN: Does the college encompa ss all mem bers of the me di cal profes sion? (In terje ction)-Okay, I'm sorry. MR. SHER MAN: The MM A does not necessarily encompass them but the college does.

I don't know the answer to the question put by Mr. Jenkins and perhaps Dr. Morison can answer. MR. CHAIRMAN: Dr. Morison, are you available to answer? Agreed by the commi ttee? (Agreed) 619 DR. MORISON: At the present time, we have recommended to doctors that they take refresher trai ning at the standards comm ittee, from events arising in hospitals or from voluntary audits of their offices and they have always accepted our advice. Now, if they didn't accept that advice, under our rules and the principles, we would only be able to rec ommend to the executive that this doc tor's practice needs to be investigated.

I mean, if we start giving details of our findings, which are opinions, we would destroy the whole peer use process, which Dr. Ewart has explained is totally accepted by our profession in North America, but it's meant to be an educational thi ng.

But if he refused , and the commi ttee was of the opinion th at that was absolutely essential, then they would have to just refer the ma tter, then un der the In vest igating Chairman, which is the next clause or part, that man would have to start a new investigation but then he would have to go to the courts to get the document, the doctor would know imm ediately that he has got to prepare his defence. I would think he would be consulting his lawyer pretty darn qu ick and he would have the full due process to defend himself and to say that the our recommendation wasn't based on anything.

One of the things that you should realize about a peer review, that it's a completely candid discussion between doctors and the reason we wanted to have any de sig nated member, I think to give an illustration, if it was a general prac titioner, it would be general pr ac titi on ers th at would review his practice, not the professor of surge ry and the professor of medicine. lt would be, if it was an audio­ laryngologist, we would have to find an audio ­ laryngologist that would look at that practise.

So these are people who can discuss his work and give him advice and that's the only intent, and we wouldn't intend to enforce that, but if it was critical to the welfare of the community that this fellow just had to get retr aining or a review ind icated there was real risk to the population, then the Commit tee would merely have to report as it does in a hospital now, to the Hospital Board that this man mu st be investigated, then the admi nistrative arm of the hospital looks into and the investigative arm of the college would look into it. Does that answer your question as to what would happen? MR.

JENKINS: Yes, I think that's ... MR. CHAIRMAN: Any further ques tions, Mr. Jenkins? MR. JENKINS: I feel a little bit more reassured that we wouldn't invoking Clause 40(5), which is conduct unbecoming a medical practitioner if he refused to take refresher training. DR. MORISON: Well, I mean it depends on the nature of the deficiency. Obviously if there's a very gross deficiency that makes him a risk to the public, you can't stand by and say, well we wish you'd take some training.

Then you'd have to report it to a body that has the power to get more substantive details, because at the standards committee level, it's only an opinon. it's not evidenc e; you don't take evidence; you don't take anything under oath; you

Thursday, 21 May, 1981 discuss it with the doctor and they decide from that informal discussion that they have some advice to give him and the matter of complaints which you discussed before the whole principle of an audit is, it is not based on complaint. In the provinces where they have it now, it's a spot checking of people who are un der no suspicion whatsoever but may through this, they may detect needs for impr ovement or any doctor can improve with the advice of outsiders on anything he's doing. MR. CHAIRMAN: 38(3) -pass; 39( 1) -Mr . Cherniack. MR. CHERNIACK: I dr aw the atte ntion of the Comm ittee to the comments by MARL to the effect that as the

section as it stands might prevent a do ctor, who thoroughly needs it, from seekin g medical or psychiatrist help from a colleague. They say that doctor-patient confidentiality must be honoured. There's validity to that. There are many occasions when a doctor sees that a medical practitioner is suff ering from some di sorder, no t necessa rily because the practitioner has come to him as a patient, but I draw the attention of the Committee to two subsections in The Registered Nu rses Act.

Firstly, it says that this subsection does not apply to inf ormation obtained by a mem ber which is confidential by reason of a nur se-client relationship and again, if I may mention 39(2), the wording that they have here is subject to any liability therefor, the phrases added in the nur ses -not added but exists in The Nurses Act, which I think is important - except where it is proved that the disclosure was made maliciously. Now there are a couple of protec tions I think that are needed for the benefit of the doctor whose capacity is being questioned.

I wonder if I can get agreement to insertion of both of these clauses from The Registered Nur ses Act, following 39( 1) . MR. CHAIRMAN: Mr. Balkaran. MR. BALKARAN: Mr. Chairman, I wonder if Mr. Cherniack would be satisfied with an amendment which would simply in sert the words after the medical practitioner in 39( 1 ), second line, the words, "w ho is not a patient of the mem ber or the associate." MR. CHERNIACK: Well that would take care of the confidentiality. I don't know yet whether the principle of what I'm proposing has been accepted. If it's accepted, then the wording can be ironed out. MR. CHAIRMAN: Mr .

Sherman. MR. SHERMAN: Well, Mr . Chairman, I'm aware of the fact or was aware of the fact that concerns wou ld be rais ed in this area and it has been mentioned, the MARL presentation did raise it, and certainly we took pains in the nur ses legislation to protect that situation covered by the confidentiality of the nurse-client relationship.

My understan ding of the proposal in the legislation is that here we're dealing with the di rect respon sibility that perhaps is some what heavier and somewhat more direct, although only by degree, for 620 the welfare of a patient or a person suffering from illness, moreso than in the case of a nurse and the medical profession or the college deems this as necessary or desirable, again for the protection of the public; again as a reinf orcement of the public's protec tion. The omission of a comple mentary clause to that which exists in the nursing legislation was not an error.

The bill was dr afted this way on that basis, on that principle, that here there is too much danger of putting the public at risk, unless it's incumbent upon members to report such findings as are described in 39( 1) but as I say, I was aware there would be questions raised about it. I can only justify it on the grounds that I'v e de scri bed that sometimes I supp ose one is looking at making a choice between the lesser of two evils.

However, if the college feels that nothing is lost by putting in a saving clause, complement ary to the one that's in the nurses legislation, certa inly I as Min ister have no objection to it. MR. CHAIRMAN: Mr . Cherniack. MR. CHERNIACK: Mr. Chairman, frankly I want to protect the individual against the group, but I do know, I think Mr.

Uruski pointed out the other night, that a doctor is required to report, what is it -bad eyes that affect the driving ability, visual ability, to The Highway Traffic Act and child abuse, but child abuse the patient is the child that has been abused, it's not the abuser, but I am aware of the visual thing and that is for the protection of the public and certainly the purpose here is for protection of the public. The reason I mention it is not that I find it offensive, but I do want reassurance by the medical profession that this will not prevent a doctor who needs treatment from seeking it, because he's afraid.

That's the point MARL made and I think a doctor who may be realizing that he has some disability and who's afraid to give up his practise, might just stall along and go to a chiropractor but it's the assurance that the medical profession isn't worried about denying the doctor the services of another doctor because he knows he's going to be squealed on. That's all, I would rather it was in as is, but I have to ask the college to deal with that aspect of it. Of course . . . May just finish?

A doctor who is aware of this knows that when he goes to another doctor for counsel, it's likely to be reported, but the great danger is that he won't go. Now, what do they want? Do they want him to come or do they not want to come? MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Well, Mr. Chairman . MR. CHAIRMAN: If Mr. Sherman wants, that's his prerogative. Mr. Sherman, do you want to respond, or do you want to . MR. SHER MAN: I don't want to preempt the commi ttee's opportunity to hear Dr.

Ewart, but I'm prepared to suggest that such a saving clause be wri tten into the legisla tion, equiv alent, comple mentary to that which exists in the nursing legislation. No, about ... - - -

Thursday, 21 May, 1981 MR. CHERNIACK: Oh, they don't want that? I expressed the opinion that I like it as it is but I want the college to recognize that if they keep it as it is, without that saving provision, they may be denying the doctor treatment and if in the light of that recog nition they still say they want to have to report it, then it's on their conscience not ours, because from the standpoint of the public, it's better that they do report this doctor. So, I think it's up to the Council to decide what the . . . MR. SHERMAN: I unde rstand that, Mr. Chairman. I understand Mr. Cherniack's question.

Perhaps, then we should invite the college to respond. I'm saying that at this juncture that I'm prepared to amend the sect ion by adding a saving clause. MR. CHAIRMAN: Is it the general wish of the committ ee to have the college respond? Agreed? (Agreed) Your representative, Dr. Ewart. DR. EWART: First of all, thank you for your concern on this. I can assure you it's been a concern of ours as well. There's two things here. We're really protecting both the doctor and the patient, believe it or not, and the general public.

First of all, the doctors as a group, both the college and the Manitoba Medical Asso ciation, got together and we now have an organization called Physician at Risk which we think covers a lot of the problems conne cted with the doctor reporting and this appears to be working very we ll.

There is a problem arises both for the protection of both the patient and the doctor and this is being vetted, by the way, very closely with a numb er of people that are involved, particularly the psychiatrists, who we feel rea sonably secure in coming out with this knowing that we're on a very dicey area, and the imp ortant thing about this is that, for example, we'll say even with the Physician at Risk, that the doctor reports in to a, I forget exactly the way it's done but I think it's with a telephone numb er reports in and somebody speaks to him, the psychiatrist then contacts him, he talks with him, we'll say it's alcohol is the problem, or it could be some thing more violent and more threat ening to the general public.

If he, the psy chiatr ist, will then interview him and you'll note that it says, "and who continues to practise when couns elled not to practise." And, this is our attempt to protect not only the patient who happens to be a doctor, but also to protect the doctor and protect society. We hope this will work, gentlemen. We know it's a difficult area and yet, I think, we've covered, and we've certainly done a lot of background work on it. I hope that reassures you to some extent.

If you wish, I may say, I think I don't know whether I need to say this at all after what I've just said but, we're not worried about the ... We'd like to have it that it's still allows the psychiatrists to report, if it happens to be a psychiatrist, for the benefit of his patient, if you wish, and society, but also if you wanted from the Nu rses Act, 46.(3), "a person disclosing information under subsection 1 shall not be subject to any liability as a result thereof, except where it is proved th at dis closur e was made maliciously.

Now, if you want to add that protect ion, we don't mind, but we really, perhaps we're too well wishing in this particular area. 621 MR. CHERNIACK: Just one thing, Mr. Chairman. Doctor Ewart, I think, said it allows the psychiatrist to report. I think he said that. lt requires him to report, doesn't it? He must. If he doesn't report then he's guilty of a professional misconduct, isn't he? DR. EWART: Yes.

Yes, that would be right, but it also means it gives him, in talking with his patient what really happens, if you realize, we'll say that it is something very threat ening, and -(lnterjection)­ that's right, and he says, "now look, just don't do any driving or just don't do any of this type of examinations because obviously you can 't control yourself in this particular situation." Now, the patient gets beyond him, if you wish, and then he turns around and says, "L ook I have to do some thin g about this for your good and my protec tion," if you wish, too, "and I'm going to be noti fying the college." This isn't exactly the way it takes place, of course.

MR. CHAIRMAN: 39.(1) -Mr. Walding. MR. WALDING: Mr. Chairman, may I ask Dr. Ewart, out of curiosity, what does the registrar do when he receives this information? What's the next stage? DR. EWART: Please ask the registrar. I want to be precise, if you don't mind. MR. CHAIRMAN: Dr. Morison. DR. MORISON: At the present time, if we have a complaint like this, and we do have it from psychiatrists, there are some psychiatrists who feel that this is their obligation when the doctor is at a danger to the public. Other psychiatrists have felt that they must have the protection of the law.

Our code says you must not reveal a confidence unless you're requir ed by law to do so and that is one of the reasons we put this in, but there are other psychiatrists who feel another part of the code that says a doctor's responsibility to the community at large exceeds his respons ibility to a patient and certainly in a man who is extremely dangerous to the public, a psychiatrist will phone and tell us and with a letter from the doctor saying that this person in his mind is unfit to practise, we would presumably and we have laid charges against the doctor.

Normally at that time and it has happened in all cases which I have been involved in, once the charges have been laid, a doctor gets in touch with a lawyer. A lawyer usually counsels the doctor to retire from practise for the period of his illness. So, we've never had a whole formal hearing, but that would be the end result. If the doctor fought it, we would have to prove that he was unfit to practise. MR. CHAIR MAN: 39.( 1) -pass; 39.(2) -Mr. Cherniack. MR. CHERNIACK: I want to move an amendment to add at the end thereof the words, "except where it is proved that the disclosure was made maliciously". MR.

SHERMAN: That's accept able, Mr. Chairman, and would conform with the nursing legislation. MR. CHAIRMAN: The legal counsel has the motion. All in favour? Agreed? Pass. 39.(2) as amended - pass; 40 - Mr. Kovnats.

Thursday, 21 May, 1981 MR. ABE KOVNATS (Radisson): I move THAT subsection 40.( 1) of Bill 17 be amended by st riking out the word "including" in the 4th line thereof and substituting therefor the words "other than" and by striking out all the words after the word "Act" in the 6th line thereof. MR. CHAIRMAN: Is everyone aware of the amendment? Mr. Sherman. MR.

SHERMAN: For the in formation of the comm ittee, this amendment and the resu lting reword ing of this clause was worked out as a result of some positions that were taken before the comm ittee last night or the night before - I can't remember which nigh t it was no w -by the Manitoba Health Organizations. You will remember that in the original wording the case was made, I think, by MARL that there was ambiguity and the Manitoba Health Organizations had somewhat similar difficulty with it and so a number of words at the end of the originally proposed

section are removed and it clarif ies the in tent and mean ing and hopefu lly removes the ambiguity. MR. CHAIRMAN: Is Mr. Sherman's explanation sufficient? MOTION presented and carried. MR. CHAIRMAN: 41 as amended -pass; 42 - pass; 43 - pass; 44 - pass; 45 -pass. Mr. Kovnats. MR. KOVNATS: Mr. Chairman, I move THAT

Section 40 of Bill 17 be amended by adding thereto at the end of Su bsection (5) thereof the following subsection: Application to other facilities 40(6) The Program Review Comm ittee may enter into agreements with the federal, provincial and mun icipal governments to apply the provisions of Subsections (1) , (2) and (5) of this

section to any fac ilities or any portion of a facility falling within the jur isdiction of tha t government and such agreement shall specify the procedures not inconsistent with any Act to be followed when the Pr ogram Revie w Commit tee believes that the facility does not appear to meet the requirements standards. MOTION presented. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, this results from the amend ment and the revision of 41 and the subsequent subsections that follow.

The ambiguity in 41 that has now been cleared up, nonetheless, notwithstan ding its ambig uousness, add ressed a matter that still has to be covered by the legislation and that's now covered clearly in 46. lt applies, for example, to thos e fa cilities tha t are ap proved hospitals un der The Ma nitob a Ho spitals Act or approved under any level of government, federal, provincial or mun icipal, with agreement from that federal, provincial or munic ipal authority, then the Program Review Comm ittee may carry out the review procedures that are reques ted and that are not inconsistent with any other Act.

But the way 40(1) 622 was originally worded, it tried to cover everything in one sub-clause and it became incomprehensible to most people who were trying to understand it. QUESTION put on the Amendm ent, MO TION carried. MR. CHAIRMAN: 46 -pass;

Section 41 -Mr . Cherniack. MR. CHERNIACK: I want to know whether the intent is to say "lay member" or "lay person"? In other words, are the lay people to be lay members of the Council or are they to be anybody who is selected by the Min ister and by the Council? What is the intent? MR. SHERMAN: I'm sorry, would Mr. Cherniack repeat his question? I'm sorry, Mr. Chairman. MR. CHERNIACK: When I read this the first time, I decided that the Complaints Comm ittee shall consist of the Chairman plus three members of the college, and three lay memb ers, two of whom are named by the Minister and the third by the Council.

I thought this meant people who are not members of the Council, just people picked out from anywhere to be on that, but then I looked up "mem bers" and there is a definition for member and there's a definition for lay person. Now, a lay person is anybody who is not registered under the Act, but member is a member either un der 6 or 23, both of whom are either doctors or associate members. So I am just asking, what do they want; do they want a member of the Council or do they want a lay person, and what would the Min ister want because he is going to appoint them? MR. SHERMAN: Mr. Chairman, I mi ssed Mr.

Cherniack's question the first time around because I was writing in an adjustment, an amendment in my copy. There is an amendment on

Section 41. MR. CHAIRMAN: Mr. Kovnats. MR. KOVNATS: Mr . Chairman, I move THAT

Section 41 of Bill 17 be amended (

a) by striking out the words "member of Council" in the 2nd line thereof and substituting therefor the word "councillor"; and (

b) by striking out the word "mem bers" in the 3rd line thereof and substituting therefor the word "persons." MOTION presented and carried. MR. CHAIRMAN: 41, as amended -pass; 42 - pass; 43 - pass; 44 - pass; 45 -Mr. Cherniack. MR. CHERNIACK: I'm looking at what MARL had to say. lt did have something to say which I think it worthy of consideration.

They are talking about the opinion of the complaints comm ittee and they say that no opinion is needed of (a), which is true, either he has or he has not been convicted; under (b), he is either alleged to be guilty of professional misconduct -they say that's not necessary. I don't know if it matters that it's not necessary; I'm just wondering why the opinion of the compla ints comm ittee is needed, because when there is an allegation it is

Thursday, 21 May, 1981 made; they don't have to form an opinion on it. Possibly what they mean is in the opinion of the commit tee or the registrar there appears to be justification for the allegation, but other than that, is it as long as he has been convicted or is alleged to be then they shall automatically refer it to the investigating chairman or is it that they may refer to the investigation chairman to consider whether or not the re is ju stification for the allega tion, jus t to summarize it; they are suggesting.

And now I think that they make sense that there is no need to have the phrase in the first line "in the opinion of the complaints comm ittee or the registrar." So it will read, "where a member has been convicted or is alleged to be guilty or demons trated incapacity it shall be referred" and they are suggesting the word "may" but I think it should be "shall." MR. CHAIRMAN: Mr . Sherman. MR. SHERMA N: Mr. Chairman, I think that's semantics and perhaps, Mr. Cherniack's language is better than the language that is used here but it doesn't alter the meaning or the intent of this section. In fact that's what this

section says. lt says it in a di fferent way. it's up to the complai nts comm ittee or the registrar to determine whether they are going to refer that matter if in their opinion the incident or the record of that mem ber deserves referral to the investigation chairman for review, then it will be done. If their opinion is otherwise it won't be done, so it's really just a long way of saying what Mr. Cherniack has said and other than changing the ter minolo gy, I don't see that there is any basic conflict with the principle of the sect ion. MR.

CHERNIACK: I won't debate it if we delete it, but if we don't delete it then I would debate it because I think that Mr . Sherman is wrong. I think that the complaints com mittee under this

section must refer regardless of what his opinion is. I think that's the point, that where there's a conviction or an allegation it shall be referred and the opinion doesn't count and that's why I think there is a difference. Well, I'll move that we delete in the first line all the words other than "where." MR. CHAIRMAN: Legal counsel, please. MR. BALKARAN: I think that Mr. Cherniack's point is well taken. Ho w do you form an opinion on something that is a fact , that's an allegation. You simply state where a member, a, b, c, and state the results that flow, what action shall be taken.

The circum stances where a, b, or c, is present, the comm ittee or the registrar shall do certain things. lt doesn 't depend on the opinion because it is a conviction, but as an allegation. MR. SHERMAN: Well, all it does as far as I can see, Mr. Chairman, is enshrine the role and the activity and the function of the compla ints comm ittee.

I admit that it is probably somewhat cum bersome wording but one doesn't have to refer the fact that somebody has been conv icted of an indic table offence to investigation. lt's a matter of whether the complaints comm ittee deems that offense to be of a serious enough nature to warrant that referral. MR. CHERNIACK: No, Mr. Chairman, I think that's the essential point. The provision here is that the 623 investigation chairman should investigate and come to a conclusion and ther efore the compla ints comm ittee is not involved at all in making any pre limina ry decision as to whether or no t it's warranted.

That, as I see it, is the im portant dif ference. The complai nts commit tee receives complaints, reviews complaints and then makes a de cision, but where there is an allegation of professional misconduct, then it must refer it and the investigation chairman then uses his discretion, and that's why I think those words ought to be deleted because it makes more sense that way. Having said that, you know in the end I really don't suppose I care. lt's a draftsmanship aspect that we are dealing with. MR. SHERMAN: Mr.

Chairman, I agree, I think it is the draftsmanship and I think it's language and as I said I think it is cum bersome. What really is intended here is tha t certain in formation comes to the complaints comm ittee. lt's described in the verbiage here as an opinion and I think that's probably an impr ecise choice of wording. What we are really saying here is where information comes to the atte ntion of the complaints comm ittee or the registrar that a member has, etc., etc., etc. So it could either be amended that way and I would suggest that might be perhaps be the better way to amend it or the way that Mr .

Cherniack has suggested to provide the more accurate thrust to the section. So I would move, unless ... I'm sorry, did Mr. Cherniack have a motion on the floor. I would move, Mr.

Chairman, THAT sect ion 45 of Bill 17 be amended by striking out the words, "in the opinion of" in the 1s t line the reof and su bstituting therefor the wor ds, "information comes to the attention of" so that it wou ld read, "where in formation comes to the att ention of the complaints comm ittee or the registrar," then inserting the word "that" before the term "a member" in the 2nd line thereof, and hopefully that would take care of it; so that the

section would read: "Where information comes to the attention of the complaints commit tee or the registrar that a member either before or after is alleged to be," "is alleged to have," etc. MR. CHERNIACK: . . . the complaints comm ittee or the registrar are informed that" - I don't care. MR. CHAIRMAN: Is Mr. Sherman's ame ndme nt accept able? (Agreed) Now, Mr. Sherman, for legal counsel, would you repeat your amendment; he must get it down? MR. SHERMAN: Yes, Mr . Chairman, THAT

Section 45 of Bill 17 be amended by striking out the 1s t two lines thereof and replacing them with the words: "Where the complaints commit tee or the registrar are informed that a mem ber" MOTION presented and carried. MR. CHAIRMAN: 45(

a) as amended -pass. 45 . MR. CHERNIACK: 45(b), I'm back to suggesting that we are dealing with professional misconduct or conduct unbecoming. I don't really know that I know the difference but maybe there is such a thing. But

Thursday, 21 May, 1981 we have already dealt with a conviction and now we have this phrase criminal conduct and frankly I don't know what that is, because until there's a conviction, I don't think there is cr imin al conduct prov en, "whether in a professional capacity or otherwise" and what's the "otherwise" for? Now we were into this discussion with Mr. Green dealing with

Section 12 , but I really don't see the sense to it and I don't even know what it means and I don't know what criminal conduct is. it implies that somebody alleges criminal conduct but he has not been convicted and that the nature of the criminal conduc t is no t profess ional misconduct or conduc t unb ecoming, because if it were, then why bother to say it? So it sets up three occa sions un der (b), mi sconduct, conduct unb ecoming, or criminal conduct, and if criminal conduc t is not mis conduc t or conduc t unbecoming, why do they want it?

May I ask that question of the Min ister or the representatives of the council or whatever? MR. SHERMA N: Mr. Chairman, cer tainly Mr. Cherniack can, as far as I am concerned, ask that question of the college. First he has asked of me, and my answer would be the intention is to cover all eventu alities; again to rei nforce the reputa tion, st anding, and im age of the profession and the pu blics confidence in that profession.

There may be some justification for arguing that a term such as conduc t unb ec oming a mem ber could be all emb racing but the re certa inly can be criminal conduc t of which one is alleged, whether in a professional capacity or otherwise, that has not led and may never lead to a conviction of an indictable offence, but being known to the college, it is of concern to the college in its res ponsibilities and they have under this

section the rights and powers to deal with them. That is my

interpretation of it. I see it as a desirable rei nf orcement of what the college is attempting to ensure and enshrine in terms of public confidence. If the college has other views on that I suggest we invite them. MR. CHERNIACK: Mr. Chairman, I would like you to invite the college to explain what it means and why they need it. MR. DEP UTY CHAIRM AN: Is it agreed that a representative from the college would . . . Legal counsel, Mr. Scott. I forgot his name for a moment there. (Interject ion)-Yes, I see. I guess the Tritschler Report was so far removed from me that I . . . Sorry, Mr.

Scott, for forgett ing your name. Mr. Cherniack says you performed so well in this room for so many -(Interjection)-Oh, so often, maybe. Mr. Scott, could you perhaps clarify the situation? MR. SCOTT: Well, I can certai nly attempt to. I think it's important to keep in mind that this is at that the first stage. Information has come to the attention of the complaints comm ittee or the registrar and the phraseology is deliberately loose.

To ind icate in the phrase "criminal conduct," it is deliberately used because it is general in nature to indicate that any allegation of a serious nature has to be initially referred to the investigation chairman who ma y amongst other things decide if there is an allegation of criminal conduct, theft, or any example you want to think of, that because it is a matter for the 624 criminal courts as it turns out, that the college will step back and take no furt her

part in the proceed ings. For example, it may turn out that what is alleged to be criminal conduct, is not criminal conduct at all but is perhaps profess ional misconduct or conduct unbecoming or something else. The thing here is that at this stage, no one knows, so the language here is deli bera tely broad to in d icate that if it is an allegation of a serious nature, including at this very preliminary stage an allegation of criminal conduct, that it's got to be referred to the investigation chairman and he has to have a look at it, so that's the intent of that word ing. MR. CHAIRMAN: Mr. Cherniack. MR.

CHERNIACK: Mr. Scott, what could be more general than conduct unbecoming? How much more general can you be? Why do you need more than conduct unb ecoming? MR. SCOTT: Well because as I und erstand the jurisprudence on those two phrases that are used, I think in just about every profess ional act, conduct unbecoming or professional misconduct, incredible as it may seem that they may or may not constitute cri minal conduc t and again, at this stage the allegation from the patient or whoe ver the complainant is, may be one of what you would think of as pure criminal conduct.

That is an allegation of theft, an allegation of kick backs, an allegation of . MR. CHERNIACK: Kickbacks? MR. SCOTT: Kickbacks. MR. CHER NIACK: That would be profes sional, wouldn't it? MR. SCOTT: I would think so. MR. CHERN IACK: I don't even kn ow if that's illegal? MR.

SCOTT: Well, whether it's illegal or not, it is certainly in the ethics of the college, unp rofessional, but one can think of instances, where at this very early stage, the allegation is serious, but of such a general and unspecific nature that one cannot say for certain that it is an allegation of professional misconduct or conduct unbecoming and that's the reason for this phraseology . MR. CHERNIACK: Could you give us an example? I just don't understand . MR. SCOTT: Theft. MR.

CHERNIACK: Well would theft of this pencil be the kind of conduc t that the college should be in volved in consi deri ng, although the ft of a thermome ter might be. MR. SCO TT: We ll, that's for the in vestigation chairman to dete rmine. That's the whole point of this exercise. MR. CHERNIACK: But I'm suggesting that the theft of a pencil or theft of a briefcase -you see, a

Thursday, 21 May, 1981 medical bag I would say okay, that's professional. A briefcase containing the last issue of Playboy might be something else. it would still be criminal conduct, but what does that have to do with the practise of the profession? MR. SCOTT: Because it was the allegation, the alleged offence or incid ent took place during the tim e that a patient-doctor rela tionship was in existence, to take your example, the theft of a briefcase. MR. CHE RNIACK: Well then it's conduct unbecoming surely. MR.

SCOTT: Well it may or may not be, because while it took place during the existence of a doctor­ patient relationship, it did not directly relate to the admin istration of medical services. The odds are, Mr. Cherniack, that you're right, but again I can only repeat that the phraseology was chosen this broad because at this very early stage, you don't know and we wanted to make it clear that any allegation of a serious nature had to be referred to the investigation chairman for investigation. That's all. MR.

CHERNIACK: And if the conclusion is that it was not criminal conduct in a professional capacity, would you say the investigating chairman should proceed with his investigation and proceed with the complaint. MR. SCOTT: I suppose it depends on how serious the allegation is. The facts are after he has completed his investigation. MR. CHERNIACK: So you're back to Dr. Ewart 's strangulation case. MR. SCOTT: Yes, in a sense. In a sense, yes. MR. CHAIRMAN: Any further questions -pass; 45 as amended -pass; 46 pass; 47 -pass. Mr. Kovnats you have an amendment on 48. MR. KOVNATS: Mr. Chainnan, I move THAT

section 48 of Bill 17 be amended by striking out the word "or" in the 6th line thereof and substituting therefor the word "and". MOTION presented and carried. MR. CHAIRMAN: 48 as amended -pass; 49 - pass; 50 - pass; 51 - pass; 52( 1) pass; 52(2) ­ pass; 52(3) - pass; 53 -... MR. CHERNIACK: Just a moment, Mr. Chairman. They say if the member cannot continue then what? Then they have to stop the inquir y, but if it's a lay person they don't have to stop the inq uiry. Is that it? A MEMBER: You see there would be four mem bers. MR. SHERMAN: You'd st ill have a quorum, Mr. Chairman. MR. CHERNIACK: Mr.

Chairman, though the distinction is made as between a lay member, I think they meant lay person come to think of it; I think 625 they must mean a lay person. I may be misreading this. Mr. Chairman. We have five members of whom MR. SHERMAN: These are members of the Inquir y Comm ittee. A MEMBER: But these could still be a lay person. MR. SHERMAN: That's right. MR. CHE RNIACK: Five mem bers of the Inquir y Comm ittee. A MEMBER: Why would he be defined as a lay member member rather than a lay person? MR. SHERMAN: Because he's a mem ber of the Comm ittee, we're referring to the members of this Commit tee. MR.

CHERNIACK: Well I think you better think about that twice, because there's a definition for member and there's a definition for lay person. MR. SHERMAN: Yes, but her e we'r e ta lking specifically about members of the inquiry comm ittee. MR. BALKARAN: it's qualified. MR. CHERNIACK: My question is not articulated in my own mind, but it seems to me that under 52(3) they can continue even though the lay person is not around but they have three - I see, so they're saying the quorum shall be three plus - I don't really follow the sense to this. I wish it could be explained to me, Mr. Chairman.

I keep getting lost with num bers. MR. BALKARAN: There's no quor um. MR. CHERNIACK: Quorom is three, including the lay person. Now they're saying if that lay person becomes ill, then they have to drag in a third person who is a member, not a lay person. Is that it? MR. SHERMAN: No, this was added and I think Mr . Cherniack may have a note on this, so that the illness or absence of a lay member wouldn't result in cancellation of the hearing, due to loss of a quorum. MR. CHERNIACK: Because that lay person is part of the quorum at the be ginn ing? MR. SHERMAN: Yes. MR.

CHERNIACK: At the beginning, otherwise there would be no need to refer to . . . Ok ay, I understand, I think I understand. MR. CHAIRMAN: 52(3) -pass; 53( 1) -pass; 53(2) -pass. MR. CHERNIACK: On 53( 1) , is in the practise for 14 days; is that enough time? it's the same as before I see. The nur ses have 31 days. Do they need more time than a doctor? MR. CHAIRMAN: Good enough? 53( 1) -pass; 53(2) -pass; 53(3) -pass; 53(4) -pass.

Thursday, 21 May, 1981 MR. CHERNIACK: Mr. Chairman, that's the reason why I thought the 14 days. People alleged the mail service to be much worse than I think it is but nevertheless out of 14 days there may be a number of days that are lost due to the mail, if it's going say to Flin Flon, to Swan River and maybe 14 days, maybe the notice shall be deemed to have been served three days after it was mailed.

If we really want the doctor, the memb er who is being questioned, if we really want him to have 14 days, then we shouldn't make him liable for any delays in postal service, but on the other hand, we can't let him say I didn't get the letter. So may I suggest that either we extend the 14 days to a longer period of time or say leave the 14 days, but the notice sent shall be deemed to have been served on the date, three days after the date on which it was mailed. Does tha t make some sense? MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Well, Mr. Chairman, I don't have any problem with that.

I'd prefer to see us go back to 53( 1) and extend the time. Mr. Cherniack raised a good point. I might say that this bill, of course, was prepared a few days ago and a member of my family yesterday received a letter from Calgary, postmarked in Calgary 10 days previous, so that's the postal service we're talking about and I think Mr. Cherniack is quite right. MR. CHAIRMAN: All right, do we have the agreement of the Comm ittee to go back to 53( 1) and Mr. Cherniack, will you move the amendment? MR. DOWNEY: 21 days. MR. CHERNIACK: Mr. Downey suggests 21 days. MR. CHAIRMAN: To change 14 days to 21 days.

Agreed? (Agreed) MR. CHERNIACK: I'd like to point out en passant 55(3}, we're coming to it, it does name the third day after mailing, but I think this is fine, 21 days. MR. CHAIRMAN: 53( 1) as amended from 14 to 21 days -pass; back to 53(4) -pass; 53(5) -pass; 53(6) -pass. MR. CHERNIA CK: I think, Mr. Chairman, we had discussed with somebody the question -well I wrote in the words "and does no t provide a rea sonable excuse as failur e to att end ." We discussed it in some legislation. I think Mr.

Walding mentioned it, referred to it, maybe in another bill but the idea was that the proce eding may proceed upon proof of service, un less and I think Mr. Balkaran or Mr. Tallin put in some wording saying, "un less before the hearing, the person has notified the Comm ittee of a reasonable excuse for not being able to attend." I don't know the exact wording but -did you work on that, Andy? MR. SHER MAN: Does Mr. Walding recall that wording? MR. CHAIRMAN: Mr. Walding. 626 MR. WALDING: No, but I recall that the reason had to be given before the hearing. That was Mr.

Tallin's point. (Interject ion)-Probably that's the only other Act we've dealt with in depth. MR. CHAIRMAN: Bill 19, Mr. Jenkins, is The Veterinarian Act. Do you wish the Clerk to provide you with another copy? MR. CHERNIACK: ... may not be, I don't know where it went. Well, Mr. Chairman, maybe we can ... MR. CHAIRMAN: The clerk doesn't have a copy of it at present. MR. CHE RNIACK: I want to sugg est th at we provide, and Mr .

Walding had me nti one d it somewhere, where we provide here that un less that person has provided a reasonable excuse for his failure to attend -has provided before the hearing, a reasonable excuse for his failure to attend. MR. CHAIRMAN: Mr. Sherman. - MR. SHERMAN: I want to ask if the Min ister of Agriculture recalls that in discussions? MR. DOWNEY: No, I don't. I don't recall it in the discussions at all, I don't think it was an issue. MR. CHERNIACK: No, it may not have there, but it was somewhere it was discussed. MR. DOWNEY: it is mentioned in the bill, but I can't remember debate on it. MR.

CHERNIACK: it is mentioned in the bill? MR. DOWNEY: 14 (6}, page 4 ... MR. CHE RNIACK: Well maybe we can get the original blue. Could we get the blue of 19? MR. CHAIRMAN: No, the blue is gone too. it's not in, but it's okay. MR. CHERNIACK: We inserted it that is why it is not there. (I nterject ion)-Is there any objection to the principle? MR. SHERMAN: No, there's no objection to that saving clause, Mr. Chairman. MR. CHERNIACK: Well then, could we ask Mr. Balkaran to reduce it to writing and be done with it? MR. CHAIRMAN: Would you repeat it for Mr. Balkaran's purposes? MR.

CHERNIACK: want his wording to go in: "Where the person is called and the subject does not attend, the inquiry committee .. . " MR. BALKARAN: "Where he does not attend without proper excuse for his failure to att end"? MR. CHERNIACK: "Without having provided the committee prior to the hearing with a good and

Thursday, 21 May, 1981 sufficient reason for his failure, then the commit tee may . MR. CHAIRMAN: Legal counsel hasn't written it down yet. Mr . Cherniack, could you help legal counsel out? MR. BALKARAN: "'Without providing"? MR. CHERNIACK: '"Without having provided the commi ttee prior to its hearing with an adequate excuse ... " MR. WALDING: Can we not authorize Mr. Balkaran to seek out the amendment and simply . MR. CHERNIACK: . .. where it is. MR. SHERMAN: Mr. Chairman, the committee has agreed to the sense of the amendment and Mr. Balkaran will produce the wording and I think we can proceed . MR.

BALKARAN: What was it you said, "proper excuse?" MR. SHER MAN: Well, I wouldn't use the term "p roper" excuse. I think "good and sufficient reason." MR. CHAIRMAN: 53(6) as amended by Mr. Cherniack -pass; 53(7) -Mr . Cherniack. MR. CHERNIACK: Mr. Chairman, I'm just trying to look for a comparable sect ion in the Nurses bill. I have a note tha t it should refer to having the evidence red uced to writ ing. Maybe it appears elsewhere. MR. SHERMAN: Mr. Chairman, (7), (8), (9), (10 ), and ( 11 ) are verba tim eq uivalents of what is in the present Act; Sections 33(6), (7), (8), (9) and ( 11 ). MR.

CHE RNIACK: That doesn 't ans wer my question. it seems to me that the evidence must be taken under oath and reduced to writing because later on you are going to deal with -maybe I should be happy since I want a trial de novo, not to have it reduced to writing. See how helpful I am? MR. CHAIRMAN: Mr. Cherniack, are we prepared to go on? MR. CHERNIACK: Mr. Chairman, I don't know. We have an appeal. The appeal 64(3) says that "the ap peal shall be founde d upon a copy of the proceed ings." You know I don't agree with it but the Minis ter has his powerful disagreement with me.

Therefore, surely it must be reduced to writing to be made available. However, if nobody cares, I don't care. All right, pass. MR. CHAIRMAN: Mr. Sherman, do you stick by it that these four sections are from the previous bill? MR. SHERMAN: Yes, Mr. Chairman. MR. CHAIRMAN: 53(7) -pass; 53(8) -pass; 53(9) -pass -Mr . Kovnats. 627 MR. KOVNATS: Mr. Chairman, I move THAT subsection 53(9) of Bill 17 be amended by striking out the word "th ereof" in the 1s t line thereof. MOTION presented and carried. MR. CHAIRMAN: 53(9) as amended -pass; 53( 10 -Mr. Cherniack. MR. CHERNIACK: Mr.

Chairman, somewhere here it seems to me there ought to be some provision for the holding of the inquiry in secret, in public, in the presence of memb ers of the college. Is there anything in this bill that indicates whether it should be an open inquir y or a closed inquiry? What is the law? I am asking, Mr. Chairman, whether the drafting should require as to whether or not this inquiry shall be in public or not. I would be quite happy to make it an open hearing but I suspect that would not be accept able. Does the college have the power to close the hearings, and do they, and where does it say so? MR.

SHERMAN: Mr. Chairman, there is no provision in here for a public inquir y in the sense that it exists in the nursing legislation, where public conduct of an inquiry can be requested. it's felt that there is a dif ference in su bject matter, in vuln erabil ity of professional reputation and vulnerability of patient reputation and that the privacy and confidentiality of patients, in particular, is better protected by private proce edings. MR. CHERNIACK: Mr. Chairman, the point made by Mr.

Sherman was considered in the nursing bill and was taken care of in the nursing bill because it says there that all hearings shall be in private un less the person whose conduct is being questioned applies for a public hearing and the board is satisfied that none of the parties to the heari ng would be prejudiced by the holding of a public hearing, but where the board determines that there may be prejudice to any of the parties, it shall give written rea sons. Now, what's wrong with this, that we hamm ered out last year?

What's wrong with that, where the rights of the patients are protected , of any individual are protected? In posing my question, I can read to you from The Law Society Act, which provides that an inquir y held subject to Su bsection 11 , an inquir y held under this

section shall be held in-camera. But then it says, "Where the member to whose conduct the inquiry is being made under this

section requests that the inq uiry be open to members, the inquiry shall be open to mem bers." The point I would like to make, Mr . Chairman, is the old principle that justice should be seen to be done as well as be done. it seems to me that the constituenc y of the medical profession should have an opportunity to see the performance of the inquiry to ensure that justice is being done. it seems to me that the membership ought to be able to be present, and be bound by confidentiality, which they would be, at least if the member himself wants them to be there.

In other words, a doctor who is being investigated and an inquiry is established, may feel that it's in his best protection and interest that other members of the college shall be present to hear and watch the pr oceed ings. The Law So ciety Act

Thursday, 21 May, 1981 provides that that member may request it and is entitled to it. Is there any objection that from the standpoint of the college? MR. SHERMAN: Mr . Chairman, I think it raises a serious and subtle numb er of questions and to proceed the way Mr . Chernia ck has suggested, I think would lead us into some fairly tricky waters. I don't know that I have a strong opinion pro or con but cert ainly I would prefer that the legislation proceed in its present form. Mr.

Cherniack has cited the fact that we made the provision for public hearings un der certain circu mstances in the nursing legislation and he asks, is there anything wrong with that, and my answer would be an uneq uivocal no, there is nothing wrong with that. I par ticip ated with mem bers of this comm ittee in the refinement of that legislation. But I come back to what I have said before and I don't want to sound like a broken record about the public confidence in the medical profession. This is no t to sug gest that we don't re qu ire public confidence in the nursing profession too; of course we do.

But I must suggest that, in my humble opinion, there is a slight degree of difference in the importance of that confidence and public inquir ies mean precisely what they say, public inquir ies. That means all the attendant media attent ion, etc., etc. They can have a tendency to distort; they can have a tendency to be turned into a circus and I make no apologies for the use of that word. They can have a tendency to result in what, in effect, is trial by media.

I'm not suggesting that isn't important in terms of the nu rsi ng profession but I sugg est it's mor e im portant, mo re dangerous in terms of public confidence if it occurs with respect to the medical profession. Again, I think we are choosing between the lesser of two or three evils. Either way that we do it, we're going to have im perfect legislation. There are dangers on both sides. I think on balance that the protection of privacy and confidentiality in the case of the medi cal pr ofes sion outweigh the disadvantages. MR. CHERNIACK: Mr.

Chairman, I really don' t accept th at ther e is a dif ference between the standards that the public expect from the nurses and the standards they expect from the doctors. As a matter of fact, I think they have a built-in greater respect for the medical profession because of its age and because of its presti gious stand ing. Therefore, I don't think the medical profession needs more protection than do the nurses in this respect. But I don't want to have my argument distorted as being for public hearings, you know, I set that aside. I'm not arguing for public hearings.

I am arguing for the Law Society provision and I think that the Law Society should be just as jealous of its image as the doctors, where the Law Society says "where the member to whose conduct an inquir y is being made under this

section requests that the inquir y be open to members, the inquiry shall be open to members." Now this is the man who is being charged, the man who is being investigated, and he says, "In my interests, I would like that members of my college and the profession should be able to be present and to hear it," and I think that that is a protection he is 628 entitled to and we should grant that to him. I don't think that the college, in carrying on the inquir y, should deny its own membership the right to hear how they are operating.

So I won 't be led into the open hearing question because my suggestion is very limited and l wonder if the college would -maybe they have a practice now that permits that; I don't know. Could we find out what their practice is? MR. DEPUTY CHAIRMAN, Abe Kovnats (Radisson): The Honourable Min ister. MR. SHERMAN: Mr. Chairman, pardo n? - (lnterject ion)- MR. CHERNIACK: Mr. Chairman, that's very useful. Dr. Morison says that the chairman has the authority.

If you go back to the nurses, it says that the board, that is the board hearing the inquir y, can make that decision, just like the chairman can, but there's an ind ication of what should be in their minds and that is that none of the parties of the hearing would be prejudiced by the holding of -here it says "public hearing" but I'm saying a hearing open to mem bers. Well, then, could I suggest to Dr.

Morison that my purpose would be served if we do provide that "if the board is satisfied that none of the parties to a hearing would be prejudiced by the holding of a meeting of the inquiry in the presence of members, then the inquiry shall" -Anything wrong with that? MR. SHER MAN: lt is my un derst anding, Mr. Chairman, that this can be done now, that such inquir ies can be held in the presence of members of the college. I thought that Mr.

Cherniack was arguing in favour of the kind of provision that's in the nursing legislation, which provides for public inquiries and public hearings under certain circu mstances. MR. CHERNIACK: I would like to, but I stepped back from th at becaus e I saw I co uldn't get anywhere with that, so I'm really talking now about the members being present. I think that there should - be an obliga tion of the board to conside r this question and make a position finding that it would be injurious and therefore they won't do it.

But it should be a matter of right, un less the board or the chairman decides that it would be harmful, so that it is a decision they make, it's not by whim or by just MR. DEPUTY CHAIRMAN: For the record, the last person that spoke was Mr. Cherniack, just so that they will know. MR. SHERMA N: Mr. Chairman, is that an observation or ruling? MR. CHERNIACK: Do you want to feel the ruling? lt did it for the Hansard. MR. DEPUTY CHAIRMAN: lt was an observation to assist the people at Hansard, but if there are any additional questions to Dr. Morison, I would hope th at Dr.

Morison wou ld pl ease step up to the microphone so that it can be recorded. Jim Downey. MR. DOWNEY: Mr. Chairman, it would appear that we either have Mr. Morison come up and make a

Thursday, 21 May, 1981 decision and do some th1ng. or else put the question on this sect ion. I put the question. Mr. Chairman. MR. CHERNIACK: I am not going to make an issue out of this, but I would like to hear __ _ MR. DEPUTY CHAIRMAN: Just a moment, one at a time. Mr. Sherman. MR. SHERMAN: I have no objec tion. and I'm sure the committee has no objection we have done it several times tonigh t alre ady -in ask ing Dr. Morison to add ress the proposal. (Agreed) MR. DEPUTY CHAIRMAN: Dr. Morison. DR. MORISON: I may wish to turn this over to Mr. Scott.

The reason that we like to be able to almost guar antee confidentiality is th at I have the experience, and the lawyer that we hire to prosecute, that patients are often very reluctant to get up and discuss their personal health problems. We have had cases where there should have been charges but the patient refuses to be a witness. But when we can assure them that this is before a commit tee of doctors who unde rstand medical matters and they don't need to be embarrassed, we can persuade them to come forth.

That's why we like to be able to assure them that it will be a confidential hearing, because if you've talked to these people, and as lawyers, I'm sure you realize that they are very reluctant to discuss personal matters, which are the substance of most inquir ies. Now the wording that you have suggested would allow members of the profession to be there and we do allow that now, at the di scre tion of the comm ittee, but it's covered by by-laws, not by the Act, and it's rarely exercised, I think only once in my recollection. MR. CHERNIACK: To allow it, or not to allow it? DR.

MORISO N: That they asked for it, the y requested it. We have allowed doctors, of course, to have a colleague there to advise him and his lawyer. I mean that's a different th!ng, he's there as part of the defence. MR. CHERNIACK: Okay, let it go. MR. DEPUTY CHAIRMAN: (1 0) -pass; (11 ) - pass; 53 - pass; 54 - pass; 55( 1) - pass; (2) - pass; (3) - pass; (4) - pass; 55 - pass; 56 - pass; 57(1) -Mr . Domino. MR. LEN DOMINO: Mr. Chairman, I have a motion to make. I move THAT subsection 57(1) of Bill 17 be amended by striking out the words "thereof" in the 1s t line thereof. MOTION presented and carried. MR.

DEPUTY CHAIRMAN: 57(1) as amended - pass; 57(2) - pass; 57(3) - pass; 57(4) - pass; 57 pass; 58( 1) - pass; 58(2) -Mr. Cherniack. MR. CHERNIACK: I move THAT in the 2nd line, after the word "council," the words "or agent" be added and that the following 629 words be added at the end of the subsecti on, "and to exam ine do cuments and records prior to the hearing." If I may explain it, it's just that, as Dr. Morison said, sometimes a doctor will want another doctor to represent him and therefore the words "or agent" is broader than just council. I think that's correct.

And the other is the right to examine documents, which is rather important. MR. DEPUTY CHAIRMAN: Mr. Walding. MR. WALDING: I just want to point out that Dr. Morison said that sometimes an accused doctor will have a doctor there to advise him and his lawyer. Now, putting in the words, "or agent ," would that exclude the lawyer if there was a doctor to do it, to help him? MR. DEPUTY CHAIRMAN: I have been advised by legal counsel, no. MR. WALDING: lt wouldn't? Okay. MR. DEP UTY CHAIR MAN: 58(2) -pass; I am sorry, we have a motion? MOTION presented and carried. MR. DEPUTY CHAIRMAN: 58(2) as amended - pass. MR.

BALKARAN: Mr. Chairman, I haven't got the words that would go at the end. MR. CHERNIACK: At the end? The same as the Nurses bill " . . . and to examine documents and records to be used at the hearing prior to the date of the hearing." That's straight out of The Nurses' Act. MR. SHERMAN: "To be used at the inquiry prior to the date of the inquir y." MR. CHERNIACK: Mr. Balka ran said the word "hearing" is more correct. MR. SHERMAN: lt should be inquir y; that's what we're talking about. MR.

CHERNIACK: The wording from the Nur ses bill is: "Examine all documents and records to be used at the inquiry, prior to the date of the inq uiry." MR. SHERMAN: Right. MR. BALKARAN: The motion would now read, Mr. Chairman, THAT Su bsection 58(2) of Bill 17 be amended (

a) by adding thereto im mediately after the word "counsel" in the 2nd line thereof, the words "or agent "; and (

b) by adding thereto at the end thereof, the words, "and to examine documents and records to be used at the inquir y, prior to the date of the inquiry." MOTION presented and carried. MR. DEPUTY CHAIRMAN: 58(2) as amended - pass; 59 - pass; 60 - pass; 61 -Mr. Cherniack.

Thursday, 21 May, 1981 MR. CHER NIACK: I'm not really clear. We discussed the Statute of Lim itations and the time period and the note I had made prior to that was that surgical pad case that we had some years ago where I think it was 20 years before it was discovered that there had been negligence. I don't remember the law about that; I'm looking for help. Did they not have to come to the Legislature for (Interject ion)-lt was not granted? -(lnterjection)­ Ought we to consider whether the Statute of Lim itations provides that power? I think that it does.

The Statute of Lim itations, I think, says something like the court has the right to extend the period of time under the Statute if the matter is brought to the court within, I think, one year after the cause is discovered. Mr. Scott is nodding his head and if that's right, Mr . Chairman, then I want to know whether this supersedes it -oh, yes, I think that the Statute also says, "in any other Act ." Mr. Chairman. I wonder if Mr.

Balkaran could just confirm my impression and if so, then we can drop it? lt says, 15 (1) of the Lim itation of Action: "No twithstanding any provision of this Act or of any other Act of the Legislature limiting the time. The court, on application, may grant leave." Does that then mean that in spite of this two-year period, the Statute of Limitations . . . MR. BALKARAN: Can be extended by the court. MR. CHERNIACK: lt can? The court can extend the time. All right, that's fine. MR. DEPUTY CHAIRMAN: 61 -pass; 62 -pass; 63 Mr. Domino. MR. DOMINO: Mr. Chairman.

I move THA T Bill 17 be amended by adding thereto, immediately after

Section 63 thereof the following sect ion: Examinations and Certificates. 64 The Un iversity is, subject to this Act, the examining body in medicine in the province, and the Un iversity may grant to any person a certificate un der the academic seal of the university that the person mentioned in the certificate is, by way of medical education, a proper person to be a member of the college; but the certificate shall not be granted until the person making the application has given such evidence of qualification by undergoing an examination or otherwise, as the by-laws, rules, or regulations of the university then in force may require; and the applicant shall in all other respects first comply with the rules and regulations of the university in that behalf.

MOTION presented. MR. CHAIRMA N: Mr. Sherman. MR. SHERMAN: Mr. Chairman, this section, 64, was in the old Act and when this Act before us now was being drafted and put together, the intention was to put that

section in the reg ulations. The Med ical College and the Dean of the Medical College have expressed some difficulty with that. They wish to have it in the Act, so 64 would put it back in the Act and, in fact, it has always been there, sir. 630 MR. DEPUTY CHAIRMAN: 64 as amended -pass. Rather than me changing the num bers as we go along, I'm going to read off the old numb ers and then we will change the num bers when I'm finished. 64(1) -pass; 64(2) pass -Mr. Balkaran. MR. BALKARAN: Mr. Chairman, I believe on 64 Mr.

Cherniack had some concern as to whether 64 would give the right of an appeal from the erasing of a name from the register. I gathered you would want it to include erasing the name. MR. CHERNIACK: That's right. My note says, amend to include 12 ( 1). That's the erasing, isn't it? You do not feel that it's covered; that we have to add something in order to do it? MR. BALKARAN: The closest you come to it is in Clause (

a) which speaks of alteration and I'm not so sure that an alteration and an erasure is the same thing. MR. CHERNIACK: Mr. Chairman, could we just add under (a) "a refusal, altera tion or erasur e of registrat ion," just to ensure that there is that right? A MEMBER: Under (d)? MR. CHERNIACK: (

d) would be better, that's fine. (I nterject ion)-You can't erase a member. MR. DEPUTY CHAIRMAN: Do I have a motion? MR. CHE RNIACK: Yes, I would like it to be whatever is sensible, Mr. Chairman, whatever Mr. Balkaran think's it should be. MR. BALKARAN: My suggestion would be, Mr. Chairman, that we say in clause (a) "a refusal," strike out "or" and add "after alteration or erasure." MR. SHERMAN: Or erasing from the registration but the other word that could be used, Mr . Chairman, would be expunge -"an order suspend ing or expunging a member from practice." MR. BALKARAN: No, no, no. MR.

SHERMAN: Or "an order susp ending a member from practice or erasing the registration of such a ... " MR. CHER NIACK: "Erase from the register the name of," that's what it says. MR. SHE RMAN: Yes, "erasing the registrat ion." Clause 12 (1) and 12 (2) talk about the registration of a person being refused, erased, etc. MR. DEPUTY CHAIRMAN: Mr. Craik. HON. DONALD W. CRAIK (Riel): Mr. Chairman, since the matter has been raised by the Legislative Counsel, why don't we let the Legislative Counsel dr aft his amendment? MR. DEPUTY CHAIRMAN: Mr. Balkaran. MR. BALKARAN: The motion would read

Thursday, 21 May, 1981 THAT renum bered subsection 65( 1) of Bill 17 be amended (

a) by adding thereto at the end of Clause (

f) thereof. the word "or" and (

b) by adding thereto imm ediately after Clause (

f) thereof the following clause: "(

g) the erasure of the name of the person from the register." MR. DEPUTY CHAIRMAN: There is one correct ion; we are not at 65 yet, we haven't cha nged the nu mbers. MR. BALKARAN: Well, it's renumbered. MR. DEPUTY CHAIRMAN: I haven't changed it yet. All right, we have a motion before the committee. MOTION presented. MR. DEPUTY CHAIRMAN: Clause 65( 1) - I am going to call it 64( 1) because I haven't changed it yet. 64(1) - pass; 64(2) -pass; 64(3) pass; 64(4) -pass; 64(5) pass -Mr. Cherniack. MR. CHERNIACK: On

(5) I have a suggestion that the court shall have the power to extend the time for filing because it says that if the transcript was not filed within 30 days, the appeal shall be deemed to be abandoned. Now it is possible that for various reasons the transcript is not available and therefore it seems to me the court should have the right to extend the time for filing, and I would like to move th ose words at the end, un less the cour t has extended the time for filing. MR. SHERMAN: That's acceptable, Mr. Chairman. (In terje ction)-Well, the

section is there to avoid delaying tactics. The court can hardly be accused of delaying tactics. MR. DEPUTY CHAIRMAN: Are you ready for the question? The motion before the committee is on 64(5). Is it the pleasure of the comm ittee to adopt the amendment? (Agreed) I declare the amendment passed. QUESTION put on the amend ment; MOTION carried. MR. DEPUTY CHAIRMAN: Clause 65( 1) -pass; 65(2) pass; 65 -pass; 66 pass; 67 -pass; 68 -pass; 69 -pass; 70 -pass -Mr . Cherniack. MR. CHERNIACK: Mr.

Chairman, on 70. it seems to me that if there is an offence against this Act it is a matter where the Attorne y-General ought to launch the prosec ution. Now that doesn't mean that you can 't have a priva te prosecution but an offence under the Act should be dealt with like any breach of the law. If there is a private prosecution then why does it have to have

Section 70 there? Firstly, the province can make an ex gratia payment, but this doesn't even mean anything, 70, because it leaves it up to the province to decide what to pay if they are going to pay at all. I am wondering if there could be a justification for 70. MR. SHER MAN: Mr . Chairman, I would ask that that question be add ressed by Legal Counsel for the 631 college. lt is obviously a highly technical legal question. MR. DEPUTY CHAIRMAN: Mr. Scott. MR. SHERMAN: Is Mr. Scott present? MR. SCOTT: Sorry, Mr. Chairman, I was trying to catch up on the amendment to 64(5). I wonder, Mr .

Cherniack, if you would mind repeat ing the question? MR. CHERNIACK: I am suggesting firstly that the principle ought to be when there's a breach in the Act that it's the Attorney-General's Department that should prosecute it, but recognizing as I do that there are occasions where there could be a private prose cution, I am wondering why this

section shouldn't just read any person may be prosecuted or a complainant under this Act, period. The rest of it to me is meaning less because the province shall pay, but then it says such portions of the fines that may be expedient to cover costs. I don't think that fines which are assessed should be other than fines that go to the general revenue of the province where all fines go. Why should it be particular in this Act that th ere should be an indication that they ought to pay the prosecutor? And surely the college ... May I quote Dr. Ewart, as saying $1 6,000 is only $10 a doctor?

I frankly find this offensive to have this kind of provision. MR. SCOTT: Firstly, Mr . Cherniack, let me say I think th at Dr. Ewart feels that he has been misq uoted with respect to the $16 ,000.00. We'll all recal l C. D. Howe's famous quo te, "What's a million," and what happened to him. The first part of

Section 70 is there to cover the very situation that you described in the event that the Attorne y­ General's Department decides and I should indicate that recently the college was advi sed by the Atforney-Gener al's department that they will not prosecute breaches of the Act and that that is a matter for the college. That is their official position at the present time, so that is the reason for that sect ion.

The rest of it, and again, I appreciate this is no valid reason for this committee. lt has been in that form for many years and there are simi lar provisions, I am not saying identical, but similar provisions; as I sat here the other night and listened to debate and discussion on the other Acts, it struck me that there are somewhat similar provisions in a great many of the other Acts. Again, it doesn't make it right. (I nterje ction)-Well, and the province gets the other half. The college has no strong position on this, Mr.

Cherniack, except as I indicated at the present time the province has taken the position that prosecutions under the Act are a matter for the college and as such the college will obviously have to bear the costs of those prosecutions, so while there may indeed not have been a particular need or requirement for that provision in the past, in fact for the first time it may now be required, I should also ind icate that in the last ten years there have been something like six or seven prosecutions in total for violations of the Act; each one, I believe, relating to individuals who were thought to be practising medicine when they were not licenced medical practitioners under the Act.

So it is a little used provision, and as I say it's not a

section that the college feels strongly about, but I

Thursday, 21 May, 1981 do believe that given the present situation there is some justification for it that perhaps wasn 't present in the past. MR. DEPUTY CHAIRMAN: Mr. Cherniack. MR. CHERNI ACK: May I ask, Mr. Scott, if the province was prosecuting in the past? MR. SCOTT: Yes, Mr. Cherniack. MR. CHERNIACK: The province did conduct prosecutions for people who were falsely holding themselves out to be doctors and now they have stopped, and this is a recent decision. Well, Mr. Chairman, under those circu mstances I certainly think Mr. Scott has made a good case.

We may have to deal with the Attorney-General as to why there is that change in policy but Mr. Scott seems to be right. If the council is forced to do the prosecution, then surely they ought not to do it for the benefit of the pr ovi ncial pur se without compensation for their costs. I withdr aw my objections. MR. DEPUTY CHAIRMAN: Thank you, Mr . Scott. 70 pass; 71 -pass; 72 -pass; 73 -pass; 7 4 - pass; 75 -pass - Mr. Domino. MR. DOMINO: Mr. Chairman, I move THA T sect ions 64 to 75 be renum bered as sect ions 65 to 76 respectively. MOTION presented and carried. MR. DEPUTY CHAIRMAN:

Preamble -pass. The Honourable Mr. Sherman. MR. SHERMAN: Mr. Chairman, we have not come to a conclusion on clause 28 that was held over and I propose to the committee that, with the exception of the one amendment that was accepted in the

preamble which consisted of the words "for the purposes of the college", that the ·remainder of the

section be passed as written. MOTION presented and carried. MR. DEPUTY CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: I wonder, Mr. Sherman, if you could just remind us of why it was held back? MR. SHERMAN: Well, it was held back because Mr. Walding had raised a question as to whether the benefit of mem bers should be included and I have discussed that with officials of the college, they feel there are specific circums tances in which there is protection afforded here that would otherwise not be afforded and they feel it is a desirable section.

If the comm ittee would like to hear further representation from the college on it that's acceptable to me. MR. CHERNIACK: I would like a reassurance that the council will not have the right to impose any form of mandatory pension or other beneficial insurance, and I exclude malpractice insurance because that's not beneficial in that term. Can the council under this requir e all members to buy term life insurance or pension? 632 MR. DEPUTY CHAIR MAN: directed to? Who is the question MR. CHERNIACK: We're getting an answer so ... MR. SHERMAN: I'd suggest it go to the college, Mr. Chairman. MR. DEPUTY CHAIRMAN: Dr.

Ewart. DR. EWART: Well, I guess, yes, it could. We have nothing to do with that. The reservat ion that I would have, as the representative from the college, is that we will use such thin gs as this in sur ance for mem bers who perhaps will be asked to fly to Churchill, to cover the member and his family travel in surance, things like this. Ther e are many manifestations of this. We have no desire to make anything compu lsory. it would be shot down in flames the moment it was brought up. That's just not the function of the college, is really what I'm trying to say.

We don't want to limit it because there are so many manif estat ions of things such as I have just mentioned, the travel insur ance, that come up almost on a routine basis that we might be using, that's all, Mr. Chairman. MR. DEPUTY CHAIRMAN: Thank you, Dr. Ewart. 28 -pass;

Preamble -pass; Title -pass; Bill be reported -pass. That completes Bill No. 17 . BILL 18 - THE PHARMACEUTICAL ACT MR. DE PUTY CHAIRMAN: Bill No. 18, The Pharmaceutical Act. Mr. Domino are you ready to go? Have you got amendments to the bill? Bill No. 18. 1 -pass; 2 -pass. Mr . Walding. MR. WALDING: Mr. Chairman, I have a few notes, here after looking through the bill and I see that "lay members" does not appear in the definition section; yet, I believe the term appears in 5( 1) and perhaps other places, too. I wonder why that is? MR.

DEPUTY CHAIRMAN: it would appear that there's been an oversight Either an overs ight, or done deliberately? But, I think, we assume that we all know what lay members are. Do you want to know what lay mem bers are? MR. WALDING: No, I just want to know why it's not in the definition

section as it is in, at least, the three nursing bills that we passed last year? MR. RAE TALLIN: I didn't draft the bill but I would presume that the language in any bill is dealt with in the context of the bill. If there's anybody who doubts that the

interpretation of a lay member in the context of a Pharma ceutical Act would be a person who is not a pharmacist then I don't know what kind of problems we'd end up with. The mere fact that it's defined in other Acts doesn't necessarily mean it's necessary to have been defined there; it may have been some quirk of the draftsmen of those Acts. MR. WALDING: No big deal, Mr. Chairman, I just raised it because I noticed a difference, that's all. MR. DEPUTY CHAIRMAN: (2) -pass; 3. pass; 4. pass; 5( 1) . •

Thursday, 21 May, 1981 Mr. Jenkins. MR. JENKINS: We had a representation last night from the Manitoba Health Organization. I think they asked that. rather than specifying two lay members that there should be a percentage basis used. Has ther e been any though t given to th at recom mendation that came from the Ma ni toba Health Organization? MR. SHER MAN: Mr. Chairman. this conforms to a considerable degree with some of the legislation that's been dealt with at this session in terms of total membership and the amount of that total membership that's made up by lay members.

I would agree that we have gone into percentages in the nursing legislation. I un derstand from Legislative Counsel however though, and Legislative Counsel may want to comment on this, that that has created some di fficulties. The decision to specif y a percentage, it is meant that some of the professional bodies and associations have had to make difficult and un wieldy adjustments in the size of their governing bodies to accommodate a percentage in a fair way and the members of the Pharmaceutical Asso ciation evidently felt tha t this was a mor e expedient way to deal with it, 2 out of 8. MR.

CHERNIACK: They said 2 out of 10. MR. TALLIN: lt says. not fewer than 8 members. MR. CHER NIACK: They said that they have 10 members and they want to add two lay people. MR. SHERMAN: Counting the ex-officio mem bers, right. MR. CHERNIACK: No. MR. SHERMAN: Yes. MR. CHERNIACK: Including these ex-officio? MR. SHERMAN: They said they would, as recall, they probably would go to 10. If you add the ex­ officio mem bers in you'd get 10. MR.

CHERNIACK: think the principl e of percentage is a valid one because by incr easing the membership of the board when they have a fixed numb er of lay mem bers then the lay mem bers disappear substantially. In the nurses, we said ... Ah, I see the point. Twenty-five percent of who means you've got an unwieldy board. If you said not fewer than 25 percent then they could have 28 percent; there's no problem there. MR.

SHERMAN: That's right, but I remember we spent a long time trying to work out the wording in that connection last year and the final conclusion we came to, on the advice of the Legislative Counsel, was to just go with the term 25 percent but that has produced some difficulties. MR. CHERNIACK: I can see that. Mr . Chairman, I'm just wondering instead of where it says "2 of whom shall be lay members"; if we say, "and not fewer than 20 percent shall be lay members", would that not take care of that? 633 MR. SHERMAN: Well, Mr. Chairman, it would. I think it's a minor point.

I'm not sure what the sponsor of the bill, namely yourself, Mr . Chairman, might feel about it or the legal cou nsel to the association may feel about it. I have no particular hang-up on it but the request was for this wording and this different iation, and I find it acceptable. MR. CHERNIACK: May we ask, is it Mr. Haig? May we ask if they'd object to no fewer than 20 percent being lay? MR. DEPUTY CHAIRMAN: Mr. Haig would you care to speak at the microphone? MR. GRAEME T. HAIG: Mr. Chairman, the question, I under stand of Mr. Cherniack is the matter of the numb er of lay representatives to be on council. MR.

CHERNIACK: As being a proportion of the total, so that if you incr ease it to 10 0 members then the 2 would be insignificant, so ... MR. HAIG: That would undoubtedly be the case. The practicality of the thing is, for an organization having the numb er of mem bers that th e Pharmaceutical Association has, a council consisting of 10 people is about the largest practical council and of that numb er, if you have 2 lay members that is a substantial percentage.

The main concern is not the numb er of lay mem bers but their quality and that they are actively involved and, as you will see later in the bill, it requires that they participate, for example, in the discipline proceedings so that those are the critical areas for lay representat ion, in our opinion. MR. DEPUTY CHAIRMAN: Thank you, Mr . Haig. MR. CHE RNIACK: Mr. Ha ig, there are 800 members? MR. HAIG: Yes. There are 800 members but they are divided in districts and the representat ion on this council is by district, as you'll see in

section 6.(1) . There are electoral district established and these are represented by one mem ber from each of such dis tric ts, and that's why the likel ihood of any substantial increase in the number of members of council is small. MR. DEPUTY CHAIRMAN: Mr. Craik. MR. CRAIK: Mr . Chairman, only to comment that if you're going to use a percentage to get the next even numb er, you'd have to go to 12 . So, you're talking about the practicality of the matter and as long as you have lay representation on here that's the imp ortant matter and you've got 2.

An even numb er at 2 is probably more practical a state than trying to state a percentage. What do you do if you're at 10? You've then got 2 and a half. MR. DEPUTY CHAIRMAN: I think, to the members, it's been established that it's not a matter of great discussion at this point and that it's acceptable that 2 lay mem bers, as written in the bill, is accept able. MR. DEPUTY CHAIRMAN: 5( 1) -pass. Mr. Walding.

Thursday, 21 May, 1981 MR. WALDING: Mr. Chairman, I think you might have been going a bit too quickly. I wanted to ask a question under 4. MR. DEPUTY CHAIRMAN: All right, we'll revert to 4. 4, Mr. Walding. MR. WALDING: The last few words in

section 4, "for any other purpo se required by the association." lt seems to me to be very wide, almost excessively wide, and it goes back to a conversation that we had over the Medical bill on a similar item. MR. DEPUTY CHAIRMAN: Is it just as a remark or are you looking for an answer? MR. WALDING: No, I'm looking for a comment. I'm not sure from whom, maybe from the Min ister or from the association themselves. MR. SHERMAN: Well, the difference, as I see it, Mr.

Chairman, is that it's specifically spelled out here in the original wording that were talking about purposes required by the association, and I would think that that's consistent with what we have done in the preceding legislation. MR. WALDING: look to my col league, Mr . Cherniack, to see if those words will cover the concern in

section 4. MR. JENKINS: What would be added under this Act? MR. DE PUTY CHAIRMAN: Are there any other comments? MR. CHERNIACK: Does Mr. Tallin agree that there's a limitation there ? Any purp ose requir ed by the association is . . . MR. TALLIN: it's very similar to the words that were added in the Medical Act which were just for the purposes of the Association. MR. DEPUTY CHAIRMAN: 4 -pass; 5( 1) -pass; (2) -pass; (3) -pass; 5 -pass; 6( 1) -pass; (2) -pass; (3) -pass. Mr. Domino. MR. DOMINO: I move THAT

Section 6(3) of Bill 18 be amended by striking out the word "a" in the 3rd line thereof, and substituting therefor the words "and elected ". MOTION presented and carried. MR. DEPUTY CHAIRMAN: (3) as amended -pass; (4) -pass; (5) -pass; (6) -pass; (7) -pass; (8) -pass. Have I got somebody holding a hand? Mr. Walding. MR. WALDING: Mr. Chairman, in this

section 6(7), it says that lay mem bers of the cou ncil are those people who are not licensed pharmacists, which is fair enough. lt also says who have never been licensed pharmacists. What is the significance of those words? Why should not a retired pharmacist be a suitable lay person for the government to appoint to the board? MR. DEPUTY CHAIRMAN: I can answer but I would think -The Honourable Mr. Sherman. MR. SHERMAN: Well, I don't want to pre-empt your answer, Mr. Chairman. My answer is because the association doesn't want them. (I nterject ion)- MR. WALDING: Mr. Chairman, I can unde rstand Mr.

Downey's remark that they don't want a practising pharmacist. I would agree that is obviously not a lay member, but I'm still waiting for an explanation of why it could not be possible or even advantageous to have a lay member who has some knowledge of the pharmacy, from previous experience. MR. SHERMA N: Wel l, I take the view, Mr . Chairman, that that defeats the pu rpose of lay membership. The value of lay membership is that a dis interested, hopefu lly ob jectiv e, di sint erested, dispassionate party is added to a decision-making or policy-making body.

A retired pharmacist could hardly fit into that category and it's the view of the association that by lay members, they want disinterested objective third party mem bers. MR. WALDING: Well, Mr. Chairman, the Min ister says that this is what the association wants. He is the Min ister -it's a matter of what the Minister wants or what his views are on the matter, but I would also point out that if there is some concern about this matter being disinterested and dispassionate, etc., those persons are still appointed by the Lieutenant­ Governor -in-Council.

If the Cabin et feels equally strongly on the matter, then they would not name someone who was an ex-pharmacist anyway. But I would still like to hear from the association, what is their objection to that particular act. MR. DEPUTY CHAIRMAN: Mr. Haig, would you care to answer that? Mr . Haig. MR. HAIG: The purp ose of re strict in g the lay membership to persons who are not and never have been practising pharmacists in the province is to ensure th at the rep rese ntation is a commu ni ty representat ion; tha t it is not an additional two members of Council who have some pharmaceutical backg round.

That isn't the backgro und that this council requires in order to be responsi