LEGISLATIVE ASSEMBL V OF MANITOBA THE STANDING COM MITTEE ON STATUTORY REGUL ATIONS AND ORDERS Wednesday, 20 May, 1981 Tjme - 8:00 p.m. CHAIRMAN - Mr. Warren Steen. MR. CHAIRMAN: When we concluded last night's hearing this morning at that time it was agreed upon that if there were any persons who wished to make representation regarding Bill No. 17, The Medical Act, that this evening we would hear them. Are there any persons present who were not gi ven an opportunity last evening to make representation regarding this bill that wish to make representation tonight? No one? All right.

BILL 18 - THE PHARMACEUTICAL ACT MR. CHAIRMAN: Bill No. 18, The Pharmaceutical Act. Is there a representative of the Mani toba Pharmaceutical Associat ion? My notes tell me a person by the name of Mr. Brown. Is there someone else from that association? All right, sir, would you come forward and identify yourself. MR. GEORGE McCOY: Mr. Chairman, members of the committee, my name is George McCoy and I'm the Assistant Reg is trar of the Ma nitoba Pharmaceutical Associat ion.

We'r e currently in the th roes of organizing a national convention so you're having to settle tonight maybe for a third stringer but I'll do my best The Pharmaceutical Act in Manitoba is right now 103 years old and unlike Scotch whiskey I guess it doesn't improve but like a diaper, a government and a wife maybe it should be changed every once in a while. On behalf of the Pharmaceutical Association I'd like to say that most of the amendments and the changes that are in Bill 18 are of a housekeeping natur e tha t ha ve their ini tia ti ve from th e Pharmaceutical Associat ion.

Those others which represent new in forma tion, new cla uses are in response to the governmen t's wish to update our Act I don't know if you expect me at this point to go through any of the items in our Act that may be contentious but I'd be willing to answer any questions that you may have on the Act. This is actually a redraft, it represents a new Act because ttJe number of changes in the old one presumably were so many that it seemed expedient to make this rather a whole new Act and with very few exceptions, it's exactly the same thing as was presented at the last session as Bill 62. MR.

CHAIRMAN: Are there any members of the committee that wish to ask qu est ions to the delegate? Mr. Cherniack. MR. SAUL CHERNIACK: Thank you, Mr. Chairman. Is it McCoy or McCioy? MR. McCOY: McCoy. 523 MR. CHERNIACK: Thank you. I finally met one, not the real one. There are a few questions I wanted to ask you Mr. McCoy. How many members are there in Manitoba? MR. McCOY: Practising members are somewhere in the neighbourhood of 800. MR.

CHERNIACK: That's a much larger number than I expected mainly because I see the council is proposed to have eight members - that seems very few for an organization as large as 800 - and you say council should be changed every so often like other analogous spotties. Surely what you have here as I read it, is an eig ht-member council and you even provide that they can't be thrown out all at once; they alternate. What is it, four every year for two terms? MR. McCOY: Yes. MR. CHERNIACK: I must tell you my reaction is that the council should be larger.

I also believe that there should be the possi bility to throw them all out at one time and really change them the way you suggested earlier would be desirable. MR. McCOY: I think the reason for having half the council elected each year, even to expand on that a little bit more, that the principle officers in the new legislation has some guarantee. Our objective of course, is continu ity.

We feel that the council of the association is charged with the respo nsibi lity of administering the Act and our feeling is, that as long as you have some experience on your council that you're going to have wise judicious administration of the Act. As a matter of fact right now, this represents a change for us by the way because the current Act has all of our council elected at one time and it was my impression that the continuity that would be afforded by electing half each year would probably be for the better public interest. MR. CHERNIACK: Have you suffered, Mr.

McCoy, from the fact that you had a complete chan geover possible? Has there been one frequently? Has there not been a continuity under the system you have now? MR. McCOY: To be honest with you I have never seen a complete turnover. MR. CHERNIACK: Right. Thanks for being honest with me because I want to plead with you that you reconsider that point and carry out exactly what you - I mean you brought in an analogy - you started by saying that governments and wives should be changed every so often.

I want to suggest to you that the democratic principle ought to be that if the members want to change the council they should be able to do so without having to change one-half at a time. When you say the administration of this Act, really what it deals with is the registration and

Wednesday, 20 May, 1981 disciplin e of members, that's the real thing. Suppose the membership doesn't like the way the council's been operating. Shouldn't they have that opportunity to elect a completely new council and what damage is there to the admin istration of the Act if you have new people with fresh ideas and a new app roach come in and take over? MR. McCOY: Well, as I said before, to the best of my knowledge, that system has worked well for us, the new concept to provide continu ity. I suppose at this point, we don't really know whether it's going to be an improvement or not. MR.

CHERNIACK: But you say you haven't suffered from the fact that it wasn't that way, I mean the council hasn 't. MR. McCOY: I think I could truthfully say we have not suffered. MR. CHERNIACK: Wha t ab out the numb er of members? Would you not think that eight is a pretty tight little clique? When you have a qu orum of majority it means tha t five people can make decisions affecting 800. MR. McCOY: Yes, well when we're talking about eight people we'r e ta lkin g about eigh t electe d people; we're not talking about ex officio members which we have two and then of course, the new addition of two lay people.

So actually you're talking in terms of 12, aren't you? MR. CHERNIACK: I have to look agai n. My impression is that the eight in clude the two appointed. MR. McCOY: No. You know, without being too facetious about this, it would seem to me that eight good men frequently can do the work of 80 bad men. MR. CHERNIACK: "An association composed of not fewer than eight, two of whom shall be lay members". So we come back to there being not more than eight required - there may be more - but eight includes the two members; six are elected, two are appointed and you say you have ex officio.

By the way that gives you a certain amount of continuity, doesn't it? MR. McCOY: Yes, I suppo se that's right. MR. CHERNIACK: You say there are two ex officio. MR. McCOY: While it says "not less than eight", it would be our intention to keep eight elected people, two lay people and two ex officio. I would envision our council as being composed of 12 people. MR. CHERNIACK: Mr. McCoy, I suggest even that's too few in number but if you propose to have eight elected, then why not say "n ot fewer than 10 members"? I want to bargain with you, I want to go up beyond the 10. You'll go the 10 though, won't you? MR.

McCOY: We'll go to 10? I think that's our intention so if you said 10, I can't see any real difficulty there. 524 MR. CHERNIACK: All right, I won't debate that with you anymore. Mr. Chairman, on the appeal provision, most of it looks pretty straightforward. Before I go to appeal, the notice of time and place of meeting, what is your practice as to minimum notice? The calling of a meeting of the general body. MR. McCOY: 14 days. MR. CHERNIACK: Would you agree to insertion of the words "at least 14 days' notice"? • MR. McCOY: it's part of th e by-laws. Is it necessary? MR.

CHERNIACK: Well, I think it is because this is the legislation. The by-law can be changed, the legislation cannot. I'll make a note of 14 days. Finally, we get into a fairly technical question that we asked the medical profession yesterday and that is, on the appeal.

Section 15 (13) deals with the procedure on appeal. I don't know if you were here yesterday but we discussed the right of the court to determine whether or not it shall hear the evidence and the arguments afresh; it's called de novo or from the beginning. Do you see any objection to that? You don't provide for it; do you see any objection to the court having the right to decide to hear all the evidence? MR. McCOY: No, I don't see any objection at all to that. MR. CHERNIACK: Thank you, Mr. McCoy. MR. CHAIRMAN: Any further qu estions? Mr . Walding. MR. D. JAMES WALDING (St. Vital): Mr.

McCoy, as you are probably aware there were three nursing bills passed last year, laid out in a similar manner with the powers of the council and the duties, etc., laid out in a similar order. Some of the bills that are before us this year ARE obviously modelled on those and they follow the same sort of format. I wonder if you were aware if tha t and whether you had considered putting your Act into the same order with comparable powers under comparable headings so that it would be easier for one thing for members to compare your bill directly with others.

I'll tell you frankly that it presented us with some difficulty in going through it. MR. McCOY: Our bill caused some difficulty? MR. WALDING: Yes. MR. McCOY: Oh. MR. WALDING: Because it was not dir ectly comparable to other bills that we were studying at the same time. That is the reason. MR. McCOY: I don't think there was any thought given to comparing it to anything else. I see frankly, a very marked simi larity to this current bill, to the Act that we have right now and it's something that we have lived with for - well like I say 103 years - and I don't see any difficulty at all in just carrying on

Wednesday, 20 May, 1981 with the present form. But if th ere was some different setup, the order of things, is that what you're talking about? MR. WALDING: Well, that is one thing and in order .to compare the various investigation and appeal proceedings and the hearings, it would be good if they were in the same order, under the same sections in each bill that we looked at, so that there .would be some degree of uniformity in the bills. I don't know whether you see a need for uniformity in professional association acts; that is the direction in which we've been moving for several years. MR.

McCOV: Yes, I appreciate that and it was my understanding that it would be up to the Legislative Counsel to organize these things in what would be a workable form for everybody. MR. WALDING: So as an association you would have no objection if the sections were juggled and perhaps separated? MR. McCOV: No, I would think not. As far as I'm concern ed, what's imp ortant in the bill is the material, the substance and how it's organized. To me it makes very little difference. MR. WALDING: Thank you. MR. CHAIRMAN: Mr. Uruski. MR. BILLIE URUSKI (St. George): Mr. Chairman, to Mr. McCoy.

In the election of the council the association may by by-law divide the province into electoral divisions. Ho w is tha t presentl y accomplished. MR. McCOY: Okay, we have two electoral divisions; the City of Winni peg is Electoral Division No. 1 and Electoral Division No.2 is all that part of the province which is not. Just to go a little further it's based somewhat on population, okay? A little more than half of our membership is in the City of Winni peg and a little less than half is in rural Manitoba so it's based on that. MR. CHAIRMAN: Any further qu estions? Mr . Cherniack. MR. CHERNIACK: Again, Mr.

McCoy, yesterday we had a brief discussion with the medical people regarding the question of costs. MR. McCOV: Of costs? • MR. CHERNIACK: Costs. MR. McCOY: Yes. , MR. CHERNIACK: Were you present during that discussion? MR. McCOY: Yes I was. MR. CHERNIACK: Do you have a reaction as to the problem dealing with the council itself having a vested in terest in finding that costs shall be paid? MR. McCOV: I found the discussion last night on that very interesting.

To be perfectly honest with you, 525 it's an issue that had never ever crossed my mind and the reason of course, it's possible to happen but I would like to think that the people who are charged with the responsibility of judging their peers - these are elected people - I would like to think that honesty and integrity of this group would supersede any financial consideration with regard to costs.

Now I'm not sure whether I'm being idealistic about that or not but I honestly believe that the people that you elect to sit in judgment and to issue penalties against their peers do it responsibly and with integrity and I would like to think that would not be a problem. MR. CHERNIACK: Have you had occasion? How many in the last year were disciplined? MR. McCOV: To discipline? Well I would say a half­ a-dozen. MR. CHERNIACK: Were they charged costs? MR. McCOY: No. As a matter of fact, none of the discipline cases that we had within the last year involved fines at all.

There was only one I guess where there was considerable cost involved. MR. CHERNIACK: There was one. MR. McCOY: There was one, yes. MR. CHERNIACK: And it wasn't awarded against the person who . . . MR. McCOV: There were no costs, because we do not have the authority now to assess costs. MR. CHERNIACK: I see, so you don't have any experience of having assessed costs in the past. MR. McCOV: No, no. That's right, we don't. But here again, I believe that integrity would take over here. I could be totally wrong. MR. CHERNIACK: Yes, that's right. Well, you said they didn't have it before, this is new. MR. CHAIRMAN: Mr.

Kovnats. MR. ABE KOVNATS (Radisson): Mr. Chairman, thank you. Mr. McCoy, what type of figure are we talking about when we consider it to be considerable costs? MR. McCOV: Considerable costs? MR. KOVNATS: Yes, tha t was your term, considerable costs. MR. McCOV: No, I don't think so. I think you must have misunderstood me. MR. KOVNATS: Then maybe I did misunderstand. MR. McCOV: Oh, I'm sorry. Referring to the one case that we had this year? MR. KOVNATS: Yes. MR. McCOV: I'm sorry. Okay, 3,200.

Wednesday, 20 May, 1981 MR. KOVNATS: 3,200. MR. McCOY: 3,200 were the costs involved in the one major case that I've referred to. MR. KOVNATS: The one that we were discussing yesterday I think was somewhere around 15 ,000 and that was not considered considerable costs. I'm just trying to ... MR. McCOY: Don't forget I'm a pharmacist, not a doctor. MR. KOVNATS: Fair enough. I support your cause, it's okay. MR. CHAIRMAN: Any further questions? Seeing none, thank you, sir, for your presentat ion. MR. McCOY: Thank you, gentlemen. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: I don't know if Mr.

McCoy should be expected to answer it or we deal with Legislative Counsel. I'm not sure of the structuring of the Act in relation to the Discipline Committee and appeal for the Discipline Committee and later on it deals with penalties. The structure is something I presume was drafted with the help of Legislative Counsel? MR. McCOY: Yes. MR. CHERNIACK: We'll deal with it when we come to it then. MR. CHAIRMAN: Any further questions to the delegate? Seeing none, thank you, sir. MR. McCOY: Thank you. MR. CHAIRMAN: Manitoba Health Organizations, Shi rley Seidel. MS. SHIRLEY SEIDEL: Thank you, Mr. Chairman.

I'd like to take the opportunity again to introduce myself as the representative of Manitoba Health which is a voluntary non-profit organization and has a membership of hospitals, personal care homes and health care agencies. You'll be seeing me many times throughout these presentat ions of health bills. I'd like to make a general comment that we support the proposed health legislation in that we support the professional development and the self-monitoring that is inherent in each of them. In terms of The Pharmaceutical Act, I really have only two comments. The first is in

Section 5( 1) and we suppor t the concern about lay representat ion. The lay representation on the committee is really of less importance from the perspective of our facilities than it is from a public policy point of view where the purpose is to ensure the in terest of society is protected. We would like to see a percentage in that. The other is possibly an error and is in

Section 31. There's a reference to a

Schedule "A" which does not seem to appear in the legislation. A further mistake in . . . Pardon? MR. CHAIRMAN: Please carry on. 526 MS. SEIDEL: The further subsection 31( e), makes reference to 45(8) and 45( 10) and it would appear to be more correct to be 45( 10) and 45(12 ), which refers to information noted on prescription and identif ication markings respectively. That's all the comments I have, Sir. MR. CHAIRMAN: Will you permit questions from mem bers of the Comm ittee? Are ther e any questions? Mr. Cherniack, do you have a question to our delegate? • MR.

CHERNIACK: I was ju st talking to our Legislative Counsel. MR. CHAIRMAN: Mr. Cherniack, I have a question for you. Do you have a question to the delegate? Are there any other members that have questions? Mr. Kovnats. MR. KOVNATS: To Shirley Seidel. We were talking about lay persons being members of the Council. What is your objection to the two lay persons? Is it not enough num bers, or should it be on a percentage? What is your consideration? MS. SEIDEL: lt's that the number of the directors of the Board is not stated and consequently impossible to consider the effectiveness of lay membership. MR.

CHERNIACK: I gather you mean - is it Seidel? Thanks, I'll try to remember that. What I interpret you to mean is that under the legislation there could be a council of 50 people and two lay people. You suggested there be a percentage rather than a number so that no matter how big the Board or council becomes there will still be a constant percentage. Is that your point? MS. SEIDEL: That's right, Sir, which I understand is in The Nursing Acts, a percentage. MR. CHERNIACK: Yes, you're right. MR. CHAIRMAN: Any further questions? Seeing none, thank you very kindly for your presentation.

We have another name on the list but I don't see the person in attendance. Is Graeme Haig available? He was here last night I know. A.L. Jones. Are there any other persons that wish to make representation regarding this bill? Seeing none. Last night we spent a great deal of time on Bill 19, The Veterinarian Medical Act. Are there any persons who wish to make representation regarding that bill, having heard the discussion of last evening? Mr. Downey. MR. DOWNEY: Mr. Chairman, I'm aware there's a presentation that has come in from a member of the Vet erin ary Asso cia tion. He's not here at th is. particular time.

Maybe you could proceed on to another bill and return to that one at a later time. BILL 20 - THE REGISTERED DIETITIANS' ACT MR. CHAIRMAN: All right. Bill No. 20, The Registered Dietitians' Act, Ma nitoba Health Organization, Shir ley Seidel. Seidel, my apologies.

Wednesday, 20 May, 1981 MS. SEIDEL: I'm sorry, sir, on which Act? MR. CHAIRMAN: On Bill 20, The Regis tered Dietitians' Act. MS. SEIDEL: I'm referring first to

Section 3( 1) . Again it's the description of Board of Directors without specific indication of percentage of lay membership on the council. The next item is

Section 14 - Emp loyers Responsibility - and within that Subsection (

a) we would like that modified to state, "Shall ensure that each person at the time of emplo yment is duly registered under this Act", otherwise our member facilities would in effect be requir ed regularly to enquir e into the status of the dietitian's registration. This is consistent with the structure of the Licensed Practical Nurse. (

b) of

Section 14 requir es that the Association Board be notified whenever a dietitian is unilaterally termina ted because of professional mis conduct, in com petence or in capacity. 1t is the recommendation of MHO that it would be beneficial to employers and employees if this provision were changed so that facilities were required to notify the Board of term in ation only where profe ssional misconduct, incom petence or incapacity have been demonstrated as oppo sed to where in cases a facility wishes to terminate an employee for a cause not yet amounting to demonstrated incom petence. Subsection (

b) includes the cause of notification - a written reprimand. This particularly is of concern to us as this appe ars as a cum bersome and inappro priate inclusion and is not included in other Acts.

Section 15(2) - Offence by employer. We request that the ph rase "to aid and abet" be removed from the Act. This is inconsistent with the provisions in other professional Acts. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Wha t su bsect ion is that, Mr. Chairman? MS. SEIDEL: 15(2). MR. CHAIRMAN: Please carry on. MS. SEIDEL:

Section 34(8) - Right to Counsel. We think that there must be an error at least in my draft. lt refers to "new counsel" on the second line of the clause and we interpret this to mean her counsel or agent. I'm sorry that I have to refer back to

Section 4( 1) which the sta tement, "(

k) to prom ote the professional and social welfare of the association", we ask that that be taken out as it has been taken out in all other legislation. This is a function of the union and not the professional association. That's my comments, sir. MR. CHAIRMAN: Are there any questions? Mr. Cherniack. MR. CHERNIACK: I stopped on

Section 14 for a moment because I didn't fully comprehend your recommendation dealing with 14(b). You say, " where her employment is suspended or terminated because of profes sional mi sconduct, in com petence or 527 incapacity", that it shall be reported, do you have an objection to that? MS. SEIDEL: No, no. We would like an insertion of "demonstrated". MR. CHERNIACK: Wha t is dem onstrated? Mi sconduct is demonstrated. MS. SEIDEL: Yes. MR. CHERNIACK: But if you fire somebody you must have cause. MS. SEIDEL: Then you would have documentation.

I really have not as great a concern with that as I have with the aid and abet. MR. CHERNIACK: Aid and abet as employer, we'll come to that. But under (

b) what you are saying is that if you reprimand a dietitian for whatever reason, like coming late or something that has nothing to do with professional capacity, then you're saying you shouldn't have to report that. But suppos e you reprimand because of pr ofess ional mi scon duct. Should you not have to report that? MS. SEIDEL: Certainly I would agree with the reporting of pr ofess ional conduct as tha t is consistent in other legislation.

The notification of a written reprimand is not consistent and probably is a little bit more involved than would be appropria te because written reprimand generally would include a first reprimand. MR. CHERNIACK: But as I read this if the grammar lends itself to say where "the dietitian receives a written reprimand because of pr ofessional misconduct, incompetence or incapacity" - that's the· way I read it. Do you read it differently? MS. SEIDEL: I don't have the whole inclusion of

Section (

b) here but our recommendation has been that "written reprimand" is separate from, "reporting to the Board of dismissal". MR. CHERNIACK: You mean the cause is different? MS. SEIDEL: Yes. MR. CHERNIACK: But sup pose my read ing is correct and tha t a reprimand is because of professional misconduct. Do you still object to reporting that? MS. SEIDEL: I think in terms of a written reprimand it is a lesser than discharge and that would be a relationship between the employer and the employee. MR. CHERNIACK: I'd like to ask you a general question in which your organization ought to be concerned.

We are dealing now with the Registered Dietitians. We will be deal ing toda y with physiotherapists, registered respiratory technologists and as you know there are other members of a health team. Are you satisfied as adminis trative employers or employers who are also administrators, that you have all these various professional bodies - I'm not talking about unions, I'm talking about

Wednesday, 20 May, 1981 professional bodies that do the licensing - that each is independent of the other and not part of one central health team?

Let me expand a little then, you don't seem to follow what I'm saying. lt seems to me that since they're all members of one system which is designed to take care of the health needs of a community, that they each ought to have an input in the principles that are involved in the provision of health services to the extent that there could be some interlocking relationship, which might mean a nurse on a board, same board, a doctor on a board, a dietitian on a board, which would then be involved in the overall plan and would then be ch arged with the responsibility of maintaining standards at the same level rather than what may become self-serving if each body runs its own show.

Do you see that as anything worth exploring? MS. SEIDEL: I understand your concern. I would say that it's probably a problem that has to be addressed from an overall systemic point of view and probably could not be add ressed wi thin this legislation and the legislation of othe r health disciplin es. We are certainly pleased with the idea that the health disciplines will be self- monitoring and will be concerned with their personal and educ ational development.

I'm always concerned about systemic issues and interrelationships and balances between and among those but it isn't something that I see able to be addressed in the individual discipline's legislation. MR. CHERNIACK: Are you familiar with The Dietetic Association of Manitoba Act which is being repealed by this legislation? MS. SEIDEL: I have had opportunity to review it. I can't say that I could ... MR. CHERNIACK: Do you kn ow of any basic differences in principle between one and the other? MS. SEIDEL: The basic of principle? MR. CHERNIACK: Like, are the y not self­ admin istering, self-lice ncing? MS.

SEIDEL: Self-monitoring. I would assume that that is the case. This strengthens their role and their responsi bility. MR. CHERNIACK: Is there a provision that you, as representative of employers, would not be permitted to emp loy as a dietitian a person who is not a member of the association? MS. SEIDEL: I think that does not exist in the present legislation. MR. CHERNIACK: So that now your opportunities to hire people are more limited, aren't they? MS. SEIDEL: The opportunities would be limited. On the other hand, emp loyers would expect an incr eased level of competence and would expect quality. MR.

CHERNIACK: Is there a union that negotiates for the dietitians separately from other paramedical people? 528 MS. SEIDEL: I'm sorry, I don't know that. MR. CHERNIACK: Aren't you the body that does some negotiating? MS. SEIDEL: I'm part of that body. I'm not the person who is responsible. MR. CHERNIACK: I understand. MR. CHAIRMAN: Any further qu estions? Mr. Sherman. MR. SHERMAN: Mr. Chairman, I wonder if I could ask Ms.

Seidel if she would file a copy of the 11 amendments that she has proposed because there have been a number of propo sed amendments that have emina ted from her presentation and certainly • the sponsor of the bill, who is not present this evening I'm sure would want to look at them and certainly, as Mini ster, I would like to look at them before we complete clause-by-clause examination in Committee. MS. SEIDEL: I have a copy for you, Sir. MR. SHERMAN: Thank you. MR. CHAIRMAN: Any further questions? Seeing none, thank you kindly. For the Dietitians Association, Elizabeth Hamilton. MS. ELIZABETH HAMILTON: Mr.

Chairman, Mem bers of the Legislat ive Assem bly. I'm the Chairma n of the Legislation Commis sion of the Dietetic Associa tion. I'm sure you are aware that there is

an Act which will be repealed, we hope; the Act which came out in 19 57. Our reason for presenting a new Act is mainly housekeeping and in order to bring it in line with current practice. We have, as you probably already noted, followed the format used by The Nurses Act. I don't propo se to point out differences or specific clauses but I should mention that one item, which Ms. Seidel had concern about, the word "social" in

Section 4(1 )(

k) had slipped our editorial pen and we had already been in contact with the department ask ing tha t th at particular word be deleted. I would be pleased to answer any questions. MR. CHAIRMAN: Any questions? Mr. Cherniack. MR. CHERNIACK: Ms. Hamilton, you heard the dis cussion that took pla ce already with the Pharmaceutical Association regarding the size of the board. How many members do you have? MS. HAMILTON: On our Advisory Council we have 7. MR. CHERNIACK: How many members do you have in your associat ion? MS. HAMILTON: 150. MR. CHERNIACK: Well they must be spread all over the province, most of them in Winni peg I assume. MS. HAMILTON: The majority of them are.

Wednesday, 20 May, 1981 MR. CHERNIACK: Is 7 not too few? MS. HAMILTON: Well, I must say that it was an arbitrary number. However, I think I would share the sentiments of the gentleman who said that eight good men could perhaps do the work of 80 poor ones and I think perhaps seven good women could do the work of 70 poor ones. I think numbers are not all that important. MR. CHERNIACK: What do you think about seven members of the Legislature running the province? MS. HAMILTON: I'm not a politician, Sir. MR. CHERNIACK: I think you are a politician when you answer that way.

You're proposing a board 4 of whom shall be non- members and two shall be appointed by Lieutenant -Gove rnor-in-Council. Ms. Seidel has already made the point that she thinks there ought to be a percentage. You say out of seven, out of seven would you say four would be lay? MS. HAMILTON: Well, as it stands now, two are. MR. CHERNIACK: I read that four shall be. Maybe I misread it. MS. HAMILTON: What section? MR. CHERNIACK:

Section 3( 1) . MS. HAMILTON: We have eight there, four shall be non-mem bers; two shall be appointed by Lieutenant­ Governor-in-Council. MR. CHERNIACK: Of the four. MS. HAMILTON: And of the four, two shall be appointed. MR. CHERNIACK: So, you're providing for four lay people, two appointed by the Lieutenant-Governor and two in some other way. So tha t you are· proposing four, which must mean, I'm sure you in tend to incr ease the council beyond seven, otherwise the majority would be lay people. MS. HAMILTON: We have four and four. MR. CHERNIACK: I'm sorry, I don't want to mislead you.

You said you have seven now. MS. HAMILTON: I'm sorry, Sir. I was referring to our Advisory Council, not the board. MR. CHERNIACK: Oh. Board of Directors, how many do you have? MS. HAMILTON: Board of Directors, yes. MR. CHERNIACK: How many do you have in Board of Directors? MS. HAMILTON: Eight. MR. CHERNIACK: Eight. MS. HAMILTON: Four of whom shall be non­ members. 529 MR. CHERNIACK: So one-half of your board is to be lay people? That's surprising to me. I would have thought that would like the board to be controlled by members of the association. MS.

HAMILTON: Well, we have reserved the right here to appoint two of those lay persons. MR. CHERNIACK: Right. Wha t would be your qualifications for them? MS. HAMILTON: Hopefully someone who was knowledgeable of our profession. MR. CHERNIACK: But not a member? MS. HAMILTON: Not necessarily a member. MR. CHERNIACK: Would you object to the number of the Board of Directors being stipu lated in the Act.

You don't have it anywhere you know; 3(2) says the number and the manner of their appointment or election shall be governed by the by-laws; which means to me that the spelling out of the democratic process is left to by-laws which are not part of the legislation. MS. HAMILTON: The only reason that we would ha ve objec tions is because, as you kno w, it's extremely difficult to change

an Act. We've only done this once in 24 years and if it were found to be an unworkable number we'd be stuck with it. MR. CHERNIACK: Let's suppose it said not fewer than so many, not more than so many. MS. HAMILTON: Well, if it were left that loose I don't see tha t our association would have any objection to that. MR. CHERNIACK: Well, then your present is eight people elected to the board out of a group of 15 0 - not eight people elected, I'm sorry. Two appointed by Lieutenant-Governor, four elected and those four appoint two lay people. That doesn't seem very democratic, does it?

You have the four people elected who already increase their group by their choice to six and then the Lieutenant-Governor puts in two more. So of your council four are elected, only four. One-half of your council is elected, the other half are non-elected. MS. SEIDEL: They are appointed. MR. CHERNIACK: Yes. Two appointed by the four elected and two appointed by an outside body. You are happy with that? Have you been work ing under that basis up to now? MS. SEIDEL: No. MR. CHERNIACK: How do you operate now? MS.

SEIDEL: We do not have lay members on our Board and this is one of the main changes we want to see in this Act. MR. CHERNIACK: And the members of the Board, how many are there now?

Wednesday, 20 May, 1981 MS. SEIDEL: In our present Board we have six. MR. CHERNIACK: And are they all elected? MS. SEIDEL: They're all elected. MR. CHERNIACK: So what you're proposing is to reduce the number that are elected? MR. CHAIRMAN: Any further questions? Mr. Uruski. MR. URUSKI: Would you have any objection to leaving the amount of six elected representatives that you have now and leaving the four? Would there be any problem there? MS. SEIDEL: I'm sorry, I don't ... MR. URUSKI: You have six elected representatives to your Board presently.

You are proposing, at least you've indicated that your by-laws will have four elected, a reduction of two from the present status. Would you have any objection to continuing the election of six and the lay people as they are? Would that be a problem to you? MS. SEIDEL: I don't think so. MR. CHAIRMAN: Any further qu estions? Seeing none, thank you very kindly. Are there any other persons present that wish to make representation regard ing Bill 20, The Registered Dietitians Act? None. BILL 21 - THE PHYSIOTHERAPISTS ACT MR. CHAIRMAN: The Manitoba Health Organization, Shir ley Seidel.

Perhaps Shir ley, by the time you appear before us on every bill, I'll be pronouncing your name correctly. MS. SEIDEL: lt makes me sound like a new person each time. Okay. The Physiotherapis ts Act,

Section 14, Employer responsibility. Again, we're dealing with "the imposing upon the employer of physiotherapists the responsibility of ensuring that such person at the time of employment is duly registered under this Act". This is the modification. lt should be modified to state "shall ensure that such person at the time of employment is duly registered under this Act". Again it's from the point of view that our facility would be in the position of sear ching the stat us of the physiotherapist's registration in each case. Subsection (

b) has far-reac hing consequences to our member faciliti es in that it requir es the association to be notified whenever a physiotherapist - maybe it's the word ing with this one - is unilaterally termi nated for any reason and that a report be forwarded to the association. This

Section ought to be restricted to apply only where a person's employment is terminated because of professional incompetence, etc., etc., there's a statement of any reason. In

Section 16, Offence by employer, we would like the amendment to be "it would be an offence to cause or knowingly permit an employee to so act". MR. CHAIRMAN: Would you repeat that

Section please? 530 MS. SEIDEL: Yes, that's

Section 16 , "make it an offence to cause or knowingly permit an employee to so act". The next is, I have

Section 28 of the proposed Act which enables the Board to apply ex parte, that is without notice to anyone else concerned for an order directing that books, records, etc. be produced to the person conducting the investiga tion". From our point of view, this renders all records of facilities liable to be turned over on a

summary basis to the indi vid ual in vest igating the complaint with no opportunity for the facility to prove to the court as to whether or not the records ought to be disclosed. Our comment would be that "ex parte" should be deleted. Basically that's my comments on tha t legislation. MR. CHAIRMAN: Any questions to the delegate? Mr. Cherniack. MR. CHENIACK: You know, your telephone could be wire-tapped by an ex parte order. The principle appears to be that a court can be trusted not to be too loose and free with these orders. But you feel that in your case there should be notice. MS.

SEIDEL: Let me try to explain. I understand there is expected to be a time element for a facility to give indication or to make response to turning over

summary reports. We understand ex parte to mean "without notice". MR. CHERNIACK: That's correct. What it means is that where the judge is of the opinion that the issue of such an order is just and appropria te he may order it. I think the main reason for ex parte - and there are lawyers present who may have a better experience with it - my own reaction is that it is done ex parte in order to be able to go down quickly and get it without giving the custodian of the documents an opportunity to conceal them. I'm suggesting to you that's probably the reason. MS. SEIDEL: I understand your comment.

I think it still stands that on behalf of our facilities we would still request that "ex parte" be removed. MR. CHAIRMAN: Any further qu estions, Mr . Cherniack? Thank you kindly for your presentat ion. Mr. David Balfour repres enting the physiotherapists. MS. SHIRLEY LePERS: I am Shirley LePers, Chairman of the Board and I will be representing the Associa tion. MR. CHAIRMAN: All right, for our Ha nsard purposes, please identify yourself. MS. LePERS: I am Shir ley LePers, Chairman of the Board of the Association of Physiotherapists of Manitoba.

Here with me are Heather McLaren, the Registrar of the Association and Mr. Balfour, who is our associa tion's legal counsel . They would be prepared to anwer any questions if you have them later on. We appreciate this opportunity of meeting with you regarding Bill 21. We have a short brief which is to be distributed to you and I will be giving you a precis - 11

Wednesday, 20 May, 1981 of this in my words of comment. We also have some letters of support for The Physiotherapy Act from physicians who work closely with therapists and the se ha ve been passed forward to you, Mr. Chairman. The physiotherapists of Ma ni toba were fi rst recognized as a self-gov erning profession by legislation passed in 1957. This legislation has had one very minor amendment done in the 24 years that have passed.

In these 24 years, the major empha sis in the del ivery of health care has changed from that of treatment of disability and disease to that of maintaining health and preventing disabil ity and disease. The education of physiotherapists and the pr actice of physiotherapy has corres pondingly changed to include more health maintenance and prev ention programs in conju nction with the traditional role in the treatment of disability. The draft Act before you, Bill 21, ha s been discussed with and approved by the members of our asso cia tion.

The definition of the practice of physiotherapy has been drafted in consultation with members of the medical profession. The bill is being submitted for the following reasons: (1) to provide incr eased public protection through expanded registration procedures, complaints, discipline and appeal procedures and to provide for lay representation on the Board and the Complaints and Discipline Committees; (2) to replace the present Act which has become obsolete.

This reflects the changes in the scope of physiotherapy practice since 19 57 and depicts its status as of 19 81. (3) to maintain the standards of practice of the education and ethical conduct to best serve the interests of the public of Manitoba. 1. Highlights of items propo sed in Bill 21 are the definition of physiotherapy. The definition has been revised to reflect the increased scope of practice of physiotherapy at this time. Under the revised defi nition, the ph ysiotherapist will continue to work in close liaison and co-operation with physicians and other members of the health care team.

This definition has been submitted to the Col lege of Physicians and Su rgeons of Manitoba and has received the approval of the executive of the college. 2. The Board of Directors. The current Board of Directors consists of five people, all of whom are elected from members of the association. lt is propo sed to increase the size of the Board to eight mem bers with two or 25 percent of these be lay mem bers; one lay memb er will be appoi nted by the Lieuten ant-Gov ernor-in-Council and one by the asso ciation.

An addit ional physiotherapy mem ber has been inclu ded to reflect the in crease in the num ber of phy sio th erapis ts in the pr ovince and the expansion of the field of practice. 3. By-laws. The association has no by-laws under the present Act. The proposed Act will include by-laws which will require membership approval and will provide for admin istration of the day-to­ day affairs of the associa tion. 4. Regulations.

These will require approval of the mem bership and the Lieutenant-Governor-in­ Council and will pertain to those activities which are of direct concern to the public - registration, 531 admission, suspension, expulsion of members, standard of pr act ice, volu ntary continue d educ ation and

definitions of pr ofes sional misconduct. 5. Unauth orized practice. Practice by persons other than those who meet registration requirements and are registered under this Act will be prohibited. 6. Complaints, investigation, discipline and appeal procedures. These procedures are more detailed than previously and recognize the concerns, the needs and the right s of the public in these matters. Lay mem bers will be on both the Complaints and the Discipline Committees. 7. Standard of education and advisory council.

The standard of education acceptable under this Act will be the standard of physiotherapy education at the Uni versity of Manitoba. An advisory council regard in g education programs will be set up which will include representatives of the Mi nister of Health and the Min ister of Education. This council will review and advise the Board as to whether other physiotherapy education programs are equiv alent to the standard of the Uni versity of Manitoba.

Bill 21 has been drafted in accordance with the guid elines for the development of legislation for health profess ions pr oduced by the curr ent gov ernment. lt has been drafted in frequent consultation with Dr. George Johnson, the Deputy Mini ster of Health and Mr . And rew Balkaran, the Deputy Legislative Counsel. The Act is substantially similar to The Nursing Acts that you passed last session. I'll be pleased to answer any questions you might have. Mrs. McL aren and Mr. Balfour could assist me if you wish. M�.

CHAIRMAN: To members of the committee, just before any questions, the physiotherapists have provided me as Chairman of the Committee with five supporting letters. Would you like to know who they are from firstly, and secondly, do you want copies of them? Would members of the committee like copies of these supporting letters? MR. CHERNIACK: I think it would be helpful if at least - maybe you should put into Hansard. Are they lengthy? I think it would be of value to have them, if they went to the trouble of getting them. MR. CHAIRMAN: No, they are very short letters.

I think it might be helpful to indicate who they're from. They're all basically saying the same thing, that they are in support of the bill. The first one is on the letterhead of the Health Sciences Centre and it's signed by a Dr. J.F.R. Bowie, Professor of Medical Rehabilation, Associate Professor of Medicine, Un iversity of Manitoba, in support of the bill. The second one is Communi ty Therapy Services of Ma nitoba sig ned by E.J. Thomas, M.D., Medical Director. The third one from the Health Sciences Centre and signed by Dr. F.D. Baragar, M.D .

The fourth one from Sports Medicine Division signed by Dermot McVicar, the Chairman, as well as signe d by six other officers of th at associat ion. The fifth one is the Canadian Physiotherapy Association and signed by Steven H.S. Wong, President and also signed by 11 other

Wednesday, 20 May, 1981 executive members of that association. All letters are either addressed "To whom it may concern" or addressed to Mrs. Shi rley LePers, the Chairman of the Association of the Physiotherapists and in each case they refer to Bill 21 and are in support of the bill. If members of the committee wish to have copies or perhaps a copy to each caucus of each letter, what is the desire? -(Interject ion)- All right, I'll have the Clerk's Office supply a copy to each caucus room. Mr. Cherniack, do you have a question? MR. CHERNIACK: Yes, I do. Thank you, Mr . Chairman. Mrs.

LePers, it's very helpful when you follow so closely the legislation we worked with last year. I'm wondering if you or Mr. Balfour in due course could point out the differences so that we could see that. MS. LePERS: Yes, I can point out some of them. MR. CHERNIACK: Can you? MS. LePERS: Yes. MR. CHERNIACK: That I think would be helpful and would you start with 3( 1 ). MS. LePERS: 3( 1) , yes. We have not used the percentages for no great reason.

We originally started out with solid numbers. lt was recommended to us that we leave it in open terms as to the actual numb er of the Board of Dir ectors and as we proposed eight it was suggested, well, lay down two as the lay members because that would be 25 percent which was in keeping with last year's policies. I don't think we would have any objection to rewording as in The MARN Act. lt would amount to the same thing. MR. CHERNIACK: Percentage. MS. LePERS: Yes. MR. CHERNIACK: Okay, the next one would be 4( 1).

What is missing, "(j), develop, establish and maintain standards of professional ethics among its members". Is that elsewhere or - oh, I'm sorry, that's (g). I see that. You must have shuffled them. MS. LePERS: Just one moment and I'll get out my MARN Act because I have it here. The by-laws from The MARN Act which we do not have in our by-laws are their 4( 1)(

a) which is "fixing the methods of annual and other fees". We have this as

Section No. 8 in the Act. MARNs 4( 1)(d) - provide for regional organizations, we do not feel we need at this time in the province, we do not have the same numbers. Then MARNs 4( 1)(k) - promote professional and social welfare. We do not feel that is a role for our associ ation. We have a professional associ ation which well can look after those matters. The next changes that I have in mind from MARN is under regulations 5( 1), (

f) and (

g) are new to our Act, they are not included in MARNs; (

f) is to define professional misconduct. We feel that if your terms for disciplin ary action is professional misconduct it should be laid down somewhere and propose that 532 this is the place to put, in regulations; (

g) control the man ner in which a member may describe his qu ali ficat ions. There are a numb er of physiotherapists in private practice and the number is increasing. There should be some regulation on behalf of the public as to the kind of advertising and designations that they can use. Carrying on, in 7(3)(

a) this MARN has included under regulations. We have carried it through as the initia l membership in the new association.

Section 8 I have already pointed out is for the Board to fix fees. In

Section 13 (1) removal of names; (

f) and (

g) are new to our Act. We feel that these are just reasons for why a member's name should be removed from the register and that it should be specified. MR. CHAIRMAN: On that point could I stop you and ask Mr. Jenkins I belie ve who has a qu est ion regarding that exact point. MR. JENKINS: Through you, Mr. Chairman, to Mrs. LePers. In this

section I don't argue with your right to remove names in the register but I don't see any right for a person to appeal his removal. Could you find out where that is in the Act? MRS. LePERS: Yes there is. In the Act, appeal? MR. JENKINS: No, I mean appeal from the removal of the name from the register, not an appeal upon refusal of registration but appeal from the removal of the name from the register. MRS. LePERS: lt would be a Board's decision to remove a name from the register.

Under the appeal to the Court of Queen's Bench, 44(1), a person can appeal any decision that he is dissatisfied with by the Board and I think that covers it. MR. JENKINS: Well reading 44( 1) , Mr. Chairman, I don't get the same interpr etation. it's where a registration is revoked. We're not talking about registration here, we're talking about removal. In your opinion don't you think it would be simpler if we had an appeal mechanism built within this

section here rather than somewhere else? Because all we have here is just the removal of the names from the register for various things. MRS. LePERS: But once one's name is removed from the register their registration is cancelled. Maybe Mr. Balfour can give you some more ideas I don't know. Have you any others? MR. CHAIRMAN: Mr. Jenkins, any further questions on that point? MR. JENKINS: No. MR. CHAIRMAN: Okay, please carry on. MRS. LePERS: 13(2) is new in our Act, is not in MARNs. lt is just the fact that a therapist should be notified and the process that must be followed. 17(1) and (2) are ... Sorry. MR. CHERNIACK: Ms. Seidel has referred to 14. Could you react to her comments? 11 •

Wednesday, 20 May, 1981 MRS. LePERS: 14(a), we have put it in as duly registered under the Act. We realize this is continuing process and this is a cont inuing requirement for practice in this province, that they do be registered. In actual fact the directors of physiother apy already follow this practice by letting us know and by checking with their staff at annual renewal time about their staff's registration. lt has already been done. MR. CHERNIACK: If I may, Mrs. LePers, as I read this they'r e saying that when a physiotherapist employed that it's up to the employer to know that they are members.

But they are saying thereafter it should not be their obligation to constantly keep in touch with you to see whether they're still members, I should think the onus passes to you to notify them of a change in membership. But I think that's what Ms, Seidel was getting at and that is, that once they're employed and are members at the time of employment that their obligation should cease to ensure that they continue to be members. MRS. LePERS: This is a practice we already follow, that we do notify emp loyers if registrations are dropped for any reason.

We have not had occasion yet to put conditions but it would be that employers would be duly notified then. MR. CHERNIACK: Does that mean you do not object to their suggested change? MRS. LePERS: No I don't object. MR. CHERNIACK: How about (

b) for any reason. lt's not in the Nursing Bill. MRS. SEIDEL: No it's not. There is no question, what we are particularly wanting is professional misconduct, incompetence and incapacity. There are perhaps times when the association could better tell misconduct or incapacity so if we were notified any time there was a unilateral termination we would be able to follow through at that time. MR. CHERNIACK: If I may, the employer knows why it has discharged this person. lt may be something that has nothing whatsoever to do with professional misconduct.

Well then, is it any of your business or are you going to put your judgment in place of the employer's decision as to why that person was fired? MRS. LePERS: What we are wanting to know is about therapists who employers have found are not func tioning in a proper fash ion. Now it may be agreed that it is they do not function well in their fac ility because of their in ter est s; it may be personality clashes which happen in our business. The Board is not going to be taking any major decision on that.

But we would like to know because we want to know of the whereabouts of therapists as they go through the province. MR. CHAIRMAN: Any further qu est ions? Mr . Walding. MR. WALDING: I'd like to ask a question too, Mr. Chairman, arising from

Section 9 - Unauthori zed Practice. If you find someone who is practising 533 without being a member of your association, who brings the charge against the person? MS. LePERS: Our association writes the person notifying them of the requirements of the Act, asking them for registration and then, if they would not comply and continue to practise physiotherapy, then it is one of the offences under this Act and the association would have to follow through. MR. WALDING: Okay, so you would then launch civil action in the court against the person? MS. LePERS: I believe so. Mr. Balfour can answer that better than I can.

MR. CHAIRMAN: Mr. Walding, would you like Mr. Balfour to answer that? MR. WALDING: Yes, please. MR. CHAIRMAN: Mr. Balfour, please. MR. DAVID BALFOUR: Ther e would be a prosecution, Mr. Chairman, by the association under The

Summary Convic tion's Act in accordance with the prosecution provisions of this proposed bill. MR. WALDING: Is that 53(3)? MR. BALFOUR: Yes, Mr. Chairman. MR. WALDING: Can I ask you why it says that any person may be prosecutor or complainant and why is it not that, since your association has the rights and responsibilitie s of a self-gov erning association, why is it not a responsibility of your association to protect the public by doing this and not leaving it open that other people may do what surely your association has the responsibility to do? MR. BALFOUR: Mr.

Chairman, the reason for that is that the board would like to reserve onto itself the discretion to make a determination as to whether or not, in its opinion, a complaint is justified. lt has provisions to adjud icate on complaints and if it feels, the board in its discretion, that the complaint is not well founded it may say to the complainant, sorry, we don't feel action is justifiable. But, however, under

Section 53 if you wish to process the complaint before the courts your free so to do. MR. WALDING: But you said to us that you have a definite system, if you find someone that is practising without being registered, that you send them a letter if they persist in doing that. So you must obviously see them doing something which is contravention of the Act in order to get to that stage. In what circumstances would you then not proceed and ask the complainant or someone else to do it for you? MS. LePERS: In that case we wouldn't; we would be the person to carry on. MR. WALDING: Well, that's exactly the point. If there is that clear responsibili ty on you to do so why does this

section appear to allow other people to do it for you? MR. BALFOUR: Mr. Chairman, if I may, I would suggest that if the board is satisfied that there is a

Wednesday, 20 May, 1981 clear offence against the Act, indeed, they have a duty under the Statute to, themselves, institute the action. But whether or not there is an offence in fact is not the absolute determination of the board; that's for the courts to decide. May I go back, the board has had experience, under its present procedures, where complaints have been lodged, investigated and found to be completely without any foundation whatsoever. it's through that experience that they've worded the

section in that fashion. In those cases that you mention was that cases where someone had alleged that a member was practising physiotherapy without being a member of the association? MS. LePERS: No, they weren 't. They were complaints of conduct. MR. WALDING: But surely what we are speaking of here is complaints about someone carrying on the practice of physiotherapy. That's what

Section 9 is about, is it not? MS. LePERS: That's what

Section 9 is about but

Section 9 is not the only thing that can be called an offence under this Act, I don't think. There are other things that can be called offences under this Act. MR. CHAIRMAN: Any further qu estions, Mr. Walding. MR. WALDING: Can I ask you what the second part of 53 means, "such portion of the funds recovered as may be expedient". The government shall pay to the prosecutor. Are you speak ing of any fines imposed? MR. BALFOUR: Fines and/or court costs, more particularly the latter. MR. W ALDING: Then we come back to the matter that was, sorry that's the courts. Okay, thank you. MR. CHAIRMAN: Any further qu estions?

Mr . Cherniack. MR. CHERNIACK: I'm looking at 9 and I'm looking to make sure that you are not just reserving the title physiotherapist but you're actually setting up an exclusive right to practise the arts of physiotherapy. I'm having difficulty with the wording of 9. I'm trying to read "no person shall pr act ise as a physiother apist", is that the way you would read that 9? "No person shall practise as a physiotherapist" - I'm trying to work on the grammar - unless he's registered under this Act.

Now physiotherapist means a health professional who's qualified under the Act, so that would be sort of a reserve of title. I could not say I am practising as a physiotherapist but could I not say that I will help you with your pain, to relieve your pain and to give you exercises which will help you? I'd like you to distinguish the role of, let us say - I know so little about sports - there is a person that is hired by most teams, a trainer, who works with them when they have a physical injury and he is not necessarily a physiotherapist.

What is there to define the occasion when that person goes beyond his own limitations and encroaches on the arts of physiotherapy? MS. LePERS: Well, part of the definition, there is a definition of the practice of physiotherapy . . . 534 MR. CHERNIACK: Yes, I'm looking at it. MS. LePERS: . . . as well as the definition of physiotherapist and they go hand in hand. With a sports therapist or a trainer it's a very fine line, I will agree, pr oviding they do not call the mselves phy siotherapists, do not im ply tha t the y are physiotherapists. MR. CHERNIACK: That is a reserve of title.

You're saying nobody can practise as if he or she is a physiotherapist unless they're licenced. But suppose they do all the other things that you do and just say I'm a natural physical therapist, what happens? MS. LePERS: We have these kinds of people and MR. CHERNIACK: I know you have. MS. LePERS: . . . and you do not have control over them. MR. CHERNIACK: Well there are occasions, the nurses for example, do have controls.

The medical profession, and I assure you the legal profession, do a very good job of making sure that people do not do the things that these professions reserve as being their exclusive skill and prerogative. Are you not asking for that? I'm trying to interpr et what ... MS. LePERS: I think that it is not a practical thing to ask for. I, as a physiotherapist, might like it but there are many people who have exercise skills. The trainers, those who graduate in phys. ed., they have exercise skills; there are other people who have massage skills.

I cannot say that they are trained as physiotherapist; the y do not ha ve the medi cal background, they do not have the anatomy, they do not have the scientific background that we do, therefore they cannot be called physiotherapists but I cannot say, "I'm the only one who can do exercises". MR. CHERNIACK: Mr. Chairman, I'd like to ask Mr. Balfour and probably Mr. Balkaran who I assume was working on this, is it

Section 9 which provides MR. CHAIRMAN: Just a minute, Mr. Cherniack. Mr. Balkaran was talking to Mr. Tallin and he wouldn't hear your question. They've been I believe discussing the very point you want to ask a question about. Would you repeat your question? Mr. Cherniack. MR. CHERNIACK: Well at this stage I'd like to address it to both, or to whome ver will answer; whether I am correct in assuming that

Section 9 is the only one that is of a restrictive or prohibiti ve nature and deals only with a reserve of title, that is, anybody can do all the things a physiotherapist does and can do it with impuni ty as long as he or she doesn't call hi mself a physiotherapist. Am I right about that? MR. ANDREW BALKARAN: Yes, Mr. Chairman, I think Mr. Ch ernia ck is right. Physiotherapy by definition means, "the services usually performed by a physiotherapis t", and as was just pointed out, a • -

Wednesday, 20 May, 1981 trainer who helps to reduce the pain and suffering of an athlete who has just come off the field with an injury, could do that with impunity I think without being registered under the Act. MR.

CHERNIACK: lt seems to me that this very detailed description would still in clude in its description many things as Mis s LePers says, is being done by other than physiotherapists and there is no effort to control them - that's to me the important point to know - that the Physiotherapists' Association does not think they will be able to control anybody who does that kind of work, as long as they don't call themselves physiotherapists. MR. DAVID BALFOUR: Mr. Chairman, if I may through you to Mr. Cherniack, with all due respect I don't entirely agree with my learned colleague, Mr. Balkaran.

There is a very definite interaction between

Section 9 and the vari ous definition sect ions. I should hasten to add th at the profess ion of physiotherapy, the person graduates only after a four-year university course. Yes, there are people out there who are trainers with certainly perhaps vast practical experience, perhap s little practical experience, in many cases very little theory, who are in effect holding themselves out by virtue of what they do on a day-to-day basis as being physiotherapists. They may not call themselves physiotherapists but the existence of those people has caused concern, injury, problems to the public.

The statute has been structured so as hopefully in the future, to be able to prosecute those people who are in effect, doing what physiotherapists are registered to do and are trained to do in situations where they do not have the adequate training and in deed are not competent. MR. CHERNIACK: Mr. Chairman, the reason I asked the question, Mr. Balfour, was that I want to know if there is any other

section other than 9 which places a prohibition, because as I read 9, indeed it is what Mi ss LePers says and that is only if they hold themselves out as a physiotherapist. Frankly, unless there's something I haven't seen in this bill I don't see that there's any effort to set up an exclusive right to practise the art of physiotherapy. I wish you would do that. I have sufficient respect for the physiotherapists to know that training and background is much more extensive than that of a trainer who learned the skill say, on the training field or the athletic field.

But I don't see that you have any powers of exclusivity of practice, but only the reserve of the ti tle physiotherapist. If you don't think you have I wish we could come to an agreement. MR. BALFOUR: Again I'd just like to reiterate, Mr. Chairman, we feel that the interaction of

Section 9 with the definition sections will be sufficient to enable courts to say that through the conduct of a person, he is ind eed holding hims elf out as being a physiotherapist. MR. CHERNIACK: lt says, "hold himself out or use the designation or any word or words indicative o such designation or seek to convey the impression he is practising as a physiotherapis t." Mr. Balfour, I think you're limited to that word. 535 Mr . Balkaran is suggesting a way of creating exclusivity of practice. I don't know whether society is yet ready to deny others the right to offer that service.

I think if you go to a health club you'll find a masseur who has a great following in that, I'm really not sure. (I nterjection)- You have health clubs in the country? MR. CHAIRMAN: Mr. Cherniack, please carry on. MR. CHERNIACK: I raised it, Mr. Chairman, because I don't want physiotherapists to think that by passing this bill they do have exclusivity of practice and although Mr . Balkaran can suggest words that will give you that, I'm not sure the community is ready to grant that and that's why I want to know what you want. What you get will be what we decide, not necessarily what you want. MRS.

LePERS: I think I would like to talk to Mr. Balkaran about his wording, to be quite honest. MR. CHAIRMAN: Mr. Cherniack, we can perhaps look at that particular matter when we 're going clause-by-clause. That will give the physiotherapists some time to consider the point you have raised with them. MR. CHERNIACK: I think that's the right way. MR. CHAIRMAN: All right. Are there any further qu estions or any further com ment s by the delegation? Mrs. LePers, have you covered the bill as far as you wish to? MRS. LePERS: Yes, unless Mr.

Cherniack wants me to go through other clauses that are new to our bill compared to others but we can do it when we're doing clause-by-clause, whiche ver you like. MR. CHERNIACK: That's fine as long as you'll be present to point it out. MRS. LePERS: I'll be here for clause-b y-clause. MR. CHAIRMAN: I'm not so sure you can just sit at the table and discuss your bill at that time. MRS. LePERS: Well, that's up to you. MR. CHAIRMAN: it's been done in the past and it hasn't been done in the past. MR. CHERNIACK: Mr. Chairman, you're right, it's not the practice although we did it last year with I think, great success.

Mr. Sh erma n ha s ju st suggested maybe we should get on the record now just in case. I don't know whether the comm ittee is going to be willing to permit it or follow the usual practice of not permitting it, so possibly we should get it on the record. lt will be helpful I think. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, I would suggest that if Mr. Cherniack has concerns about other clauses in the bill that represent departures from the existing legisla tion or that in any way he feels are not consistent with those in the nursing bills, that he take

Wednesday, 20 May, 1981 the opportunity now to work through those questions with Mrs. LePers. MR. CHERNIACK: No, it just seems to me the exact wording was in either The Pharmaceutical Bill or The Dietitians BilL lt must have come from somewhere MR. CHAIRMAN: Mrs. LePers, would you like to else. carry on then? MRS. LePERS: All right. 17(1) and (2) are different in our Act to MARN, I believe. MR. CHERNIACK: May we stop on that? MR. CHAIRMAN: Mr. Jenkins. MR. WILLIAM JENKINS (Logan): Yes, Mr. Chairman, through you to Mrs. LePers. In my humble opinion I feel that the powers you're asking for here are quite excessive.

You're asking actually to pick and choose which indictable offence you are going to deregister or remove from the register, because 17(1) gives you the right to refuse registration or erase the name from the register of a person who has been convicted of an indictable offence under the Criminal Code; yet in (2), there may be other offences that the Board may or may not. Just what is the thinking of the association? 1 could see indictable offences that perhaps are with the practice but there could be other indictable offences that don't affect the right to practise. Just what is the thinking?

Where are you going to draw the fine line? After all, you're going to be the judges then afterwards, not the courts. MRS. LePERS: That's right. What we are asking for here is the opportunity of being able to decide firstly, at the time of registration if we know of someone who has an indi ctable offence and ha s been convicted of it, if we feel that the indictable offence could have influence on their practice, that we could have the opportunity of denying them registration. Now the only thing I can think of at this time would be some of the moral charges that are indictable offences.

These could have repercussions on the manner or the respect which the therapist might receive in this province. The second hal6, "The Board may erase from the register names of any member who has been so convicted ", I agree that that can be handled under discipline procedures and perhaps doesn't need to be in that clause. MR. DEPUTY CHAIRMAN, Abe Kovnats (Radisson): Mr. Cherniack. MR. CHERNIACK: Could you explain the necessity for sub (2)? If sub (1) says the Board may, what do you need sub (2) for? MRS. LePERS: I'm not sure what I need it for to be quite honest. Mr. Balfour, what do I need it for, please? MR.

DEPUTY CHAIRMAN: Mr. Balfour. MR. BALFOUR: Thank you, Mr. Chairman, it really is by way of guida nce to firstly, the Board and secondly, the public as to the method, the criteria in the exercise of the di scretion as to whether or not registration may or may not be refused. MR. DEPUTY CHAIRMAN: Mr. Cherniack, do you have any further questions? 536 MRS. LePERS: I can't tell you where it came from. I think it's The Medical Act but I'm not 100 percent sure. MR. DEPUTY CHAIRMAN: Are there any further questions of the person presenting the petition? MR. CHERNIACK: She's running thr ough the sections for us, Mr.

Chairman. MRS. LePERS: The next

section I have that is new, is 19. This is the

section which states that the standard of education is that acceptable at the Un iversity of Manitoba. I graduated from Alberta. The next new

section is 36( 1) through (4). MR. DEPUTY CHAIRMAN: One moment please. Mr. Jenkins. MR. JENKINS: Yes. Before Mrs. LePers goes on, we had a repres entation from the delegate from Manitoba Health Organization on 28, in which she wanted the ex parte removed. Does your association have any strong objections to the removal of this? MRS. LePERS: The ex parte is in there to facilitate quick moving of any production of documents that we need. We feel that any judge would not give us that ability if he felt we were doing it frivolously or did not need the documents. MR. DEPUTY CHAIRMAN: Mr. Jenkins. MR.

JENKINS: What gua rantee would we have, because some of these docume nts may be confidential? You know, there is supposed to be the confidentiality of medical records and I imagine that ther e are med ical records being held by th e pract ising hospital or institution. What guar antee have we in legislation that there will not be frivolous use of those medical records which may be part of an in vestigation tha t is taking pla ce for, wel l, mi sco ndu ct of a pra ctising mem ber of your association? I'd like to know where the protection is for the participating public?

I, as a recipient of that physiotherapy, I'm sure I wouldn't want my personal medical history made known. MS. LePERS: The first thing is that all information that physiotherapists, as a professional, receive is treated confidential like any medical information is, so that on that basis we would be considering the information confidentiaL I think Mr. Balfour has some other thing. MR. DEPUTY CHAIRMAN: Mr. Balfour. MR. BALFOUR: If I may, Mr. Chairman.

In partial response to the concern, I would say that courts and judges are generally loathe to give ex parte orders because part of their function is to protect the rights of citizens, including relationships between citizens such as patient-client, and are generally only convinced - and I stress the word "convinced ", to -

Wednesday, 20 May, 1981 give ex parte orders when it's clearly demonstrated that there's a very definite for the ex parte order. If the ex parte order, the discharge of it, involves a confidentiality breach or a similar insight into the confidentiality, I am certain that the judge would impose conditions on this association to protect that relationship as best they were able. MR. CHERNIACK: Dubienski didn't think that, did he? He rejected some on the basis that the ex parte order was given a little too freely I think. However, I think generally you're right. MR. DEPUTY CHAIRMAN: One moment please. Mr. Balkaran. MR. BALKARAN: I wonder if there is not some confusion in reading

Section 28, Mr. Chairman. I think there's an important phrase in

Section 28; 28 only comes into play where the member has failed to produce under

Section 27 and so the court would not be asked ex parte unless there's been a refusal. MR. CHERNIACK: No, Mr. Chairman. The other person is not referred to in 27; 27 refers to members only, and 28 goes beyond that to anybody else. MR. BALKARAN: I think the word "other" should not be there. MR. CHERNIACK: Isn't it right that 27 deals only with members? MR. BALKARAN: Okay, it deals with other persons but also deals with the member, Mr . Chairman, where the member or the person has refused. So there's a refusal. MR. CHERNIACK: And not the other person? MR. BALKARAN: Has failed. MR. CHERNIACK: Oh. MR.

BALKARAN: Yes. they both failed to produce. MR. CHERNIACK: But there's nothing that ... MR. BALKARAN: I don't want to argue, Mr. Chairman, because I got into difficulty last year. I hold my peace. MR. CHERNIACK: Not with me you didn't. MR. DEPUT Y CHAIRMAN: Order please, order please. We are not in debate, it's an open discussion. We're trying to get things done to the best of our ability but, rather than get into deba te and the legal counsel is not really allowed to get into debate. Ms. LePers, would you care to carry on? MS. LePERS: The next new

section that I have is

Section 36. MR. DEPUTY CHAIRMAN: Order please. Mr . Walding. MR. WALDING: I wonder if we could ask Mr. Balfour how he sees this section, whether it applies 537 only to members or whether, as we read it, that "or any other member or person" to produce the various things. Does he read it that way, as having been involved in the drafting of it? MR. DEPUTY CHAIRMAN: Mr. Balfour, would you care to answer? MR. BALFOUR: Thank you, Mr . Chairman. The intent of the

section which I may add is identic al to a similar

section in The MARN Act is so that an ex parte order may go forth requisitioning really any records or books pertaining to the affairs of any member of any nature or kind. I wou ld expect generally th ey would be of a personal natur e between that member and perhaps his employer or perhaps patients but it is intended to pertain to records personal to the member with respect to an investigation that is being conducted pertaining to that member. MR.

WALDING: If that is the intent, would it clarify things if the words "or any other person" were taken out of there to make sure it applies only to your members and not to me. MR. BALFOUR: No, I would suggest, Mr. Chairman, if it's a matter of, let us say, serious misconduct, another person or a person including institution may very well have the only records that would verify the misconduct pertaining to that member. So I would suggest that the present wording is the appropria te one. MR. WALDING: So in that case it is not the intent of

Section 28 to apply only to members and only where they have refused to produce books. MR. DEPUT Y CHAIRMAN: Mr . Balfour, do you agree? MR. BALFOUR: That is the intent that anyone having records pertaining to the conduct of that member could be obliged, upon court order, to provide them to an investigation chairman appointed under the Act. MR. DEPUTY CHAIRMAN: Ms. LePers, would you care to carry on? I'm sorry, Mr. Cherniack, were you to be recognized? Mr. Cherniack. MR. CHERNIACK: Thank you. We may have to spend a little time on this in Committee because it seems to me that Mr.

Balfour said that it's pertaining to the personal records of the person who is being investigated but it also may pertain to the records of a patient in a hospital where the patient's chart shows an instruction from, say, a doctor or someone as to what should be done; then it may again show that the treatment given was contrary to what was ordered and, therefore, that patient's record indeed becomes avai lable for the in vest igation.

Now I personally don't have any particular hang-up about it but the argument tha t was given to us by the Manitoba Health Association would say that if they want that record why shouldn't they give notice to the hospital so the hospital could appear before the court and say it's unfair to the patient for us to give

Wednesday, 20 May, 1981 this up and argue against the order for production of documents. I think probably this is a problem not peculiar to the physiotherapists; I think it's a problem that we should look at in general because it's repeated and it's in the nurses' legislation as well. MR. BALFOUR: Fair enough. MS. LePERS: I have dug out

Section 29 of MARN's Act and ours is nearly exactly the same wording as this Act. On with our Act, Sections 36(1 )(2)(3) and (4) are new to our Act. We are asking at this point, at the time a Discipline Committee Inquiry has been ordered, if there is reason to believe that the person who is being investigated at the time should not be practising in the interests of public safety, that we can suspend them at this time before the hearing. (2)(3) and (4) are the method that can be used. MR. CHERNIACK: I'm just looking quickly at the nursing bill,

Section 33, I don't see that this is so different but the difference is something that I am concerned about and that is the Court of Queen's Bench is referred to in 33 as having the right to lift a suspension. So that I don't think 36 (1) is dif ferent really from 33 with exception of that which I think is a very im portant change and the rest is jus t procedure, as you say. Would you object to going back to the nursing one and say "or the Court of Queen's Bench "? I don't see how you can. MR. BALFOUR: If I may, Mr. Chairman, it's perhaps an oversight because under

Section 44( 1) there is an appeal for any suspension to the Court of Queen's Bench, so certainly those words indeed should be added in 36( 1) . MR. CHERNIACK: Fair enough. MR. DEPUTY CHAIRMAN: Ms. LePers, would you carry on? MS. LePERS: The next new

section that I have note of is No. 39 and this allows that the Board can restore names to the register if they feel that there is sufficient reason.

Section 42, Proceedings before the Board, this is new to our Act. We feel that we should have it stated what papers and reports can be handled at that time and what are required. There is a difference in

Section 45 between our Act and MARN's and that is the last phrase "unless it is established that the association, board or member acted maliciously or negligently". MR. CHERNIACK: What number? MS. LePERS: 45. MR. DEPUTY CHAIRMAN: Carry on, Ms. LePers, unless there is somebody that wants to interject and ask you a question. MS. LePERS: The next one is 49, Lim itation of actions. This is not included in MARN. We have put a two-year limitation of actions. MR. DEPUTY CHAIRMAN: The Honourable Member for Logan. MR. JENKINS: Thank you, Mr. Chairman. I think this is a good

section but would your association not 538 agree that it might be better still, from the point of view of a patient, that it would be two years from the date of discovery, because two years from the matter compla in ed of are tho se tha t the pr ofess ional services terminated. it might take longer than that for, say, something that had happened through a malpractice or negligence of professional services and the two years, by the time I might discover that something you have done to me, might be nearly up.

Then we would wind up, as we would have here in many other sessions, having a private member's bill before the House asking for an extension of the Limi tations of Action. Date of discovery, would your association really have serious objection to that insertion in the clause? MS. LePERS: My first thoughts are that the type of treat ment tha t physiother apists gi ve, for the conditions we gi ve, the y are basically physical conditions, that this sort of problem would have turned up well within two years and should be no problem. MR.

JENKINS: Yes, I agree but sometimes the legal profession do not - and I'm not knocking the lawyers - but most of the Private Members' Bills that we have here for an extension of the Statute of Limi tations and for various Acts are because of the fact that lawyers did not operate it in sufficient time. If part of that time has been used up, of the two years, from the time that the professional services were rendered, were completed, supposing a year or a year-and-a-half had gone by before that showed up, that would leave me with six months in order to file a complaint in a court of law.

As I say that is one of the things that I've noticed in the years that I've been in the Legislature, we have had year after year - last year was another example of a case - where we had to extend the Statute of Limitations. MRS. LePERS: Pardon me, we're saying that the action is commenced within two years. We're not saying that the action has been completed within two years, that it's commenced. MR. JENKINS: That's pretty basic in all legisla tion. That's through you, Mr. Chairman, to Mrs. LePers that is pretty basic in all legislation, it's commenced within two years.

But I un derstand from your association that you would not be in favour of from date of discovery. MR. DEPUTY CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: May I try to be helpful, Mr. Chairman. I was just looking at Limi tations of Actions Act which provides

Section 15(1) - "notwithstan ding any provision of this Act or of any other Act of the Legislat ure", and tha t wou ld be this Act, The Physiotherapists Act, "limiting the time for beginning an action the court on application may grant leave to the applic ant to begin or continue an action if it is satisfied on evidence induced by or on behalf of the app licant, that not more than 12 months have elapsed between the date on which the applicant first knew or in all circu mstances ought to have known of all material facts of a decisive character upon which the action is based and the date on which the application was made to the court for leave". I'd like

Wednesday, 20 May, 1981 Mr. Tallin possibly to confirm my impression that this means, in spite of the two-year limitation a person who learns about the cause of action attributable to the physiotherapists could apply to the court for an extension of time based on the very fact that that person didn't know for let's say four years or five years until it arose and then must apply within that one year after that. Mr. Tallin is nodding. So I think this could take care of the point Mr. Jenkin's raised MR. DEPUTY CHAIRMAN: Mrs. LePers, would you care to carry on? MRS.

LePERS: As far as I know there are no other changes comparison to MARN. MR. DEPUT Y CHAIRMAN: Are there no further questions? Mr. Cherniack. MR. CHERNIACK: I want to ask the question which I've asked on previous occasions. Do you object to the court being granted the power to decide to hear the proceedings de novo? To decide rather than to follow the record of what transpir ed before the Board then the court could decide that they want to hear the evidence thems elves. Do you see any objection to that? MRS.

LePERS: I thought that our wording "or may order a new hearing" the last phrase of 44(4), that that was the trial de novo. MR. CHERNIACK: No, that limits it to an occasion when the evidence was not reduced to writing, then the court may order it. lt limits the courts, it does not grant the court that power in all cases. lt just says it may do so if there's ina dequate reporting. I ask it again, do you have any objections to giving the court the absolute discretion to decide to hear the case from the beginning afresh? MR. DEPUT Y CHAIRMAN: Mr s.

LePers or Mr. occasion when it deems it in the best interests of justice, decide to hear the case afresh. MR. BALFOUR: May I, Mr. Chairman? I'm not one, Mr. Chairman, through you to Mr. Cherniack to deny the courts anything. But I do not feel the association wishe s to gi ve the court the automatic right, exercisable just on its mere discretion, whim if you like, to order a trial de novo. I would suggest that the common law provisions do protect an accused as it were, a member who's been disciplined when there has been an error, a mistake in natural justice, a denial of natural justice.

In those cases the record would normally reflect that there had been a denial of natural justice and the common law provisions give the courts the right to order a trial de novo. I would say that the common law provisions do protect abuses of justice which I believe the member is really getting at. MR. CHERNIACK: Mr. Balfour, you have complete confidence that the court on an ex parte application for an order would not arbitrarily just go ahead and give the order. So you have confidence that the court would not just on its whim, do such a thing.

On the other hand you think the court might on a whim decide to hear the evidence just as a whim? To me there's a contradiction. MR. BALFOUR: No, no I don't wish to mislead. No, the courts under common law are not on a whim going to order a new hearing. lt would inevitably take the exercise of one of the extraordin ary remedies, mandamus, certiorari, that sort of procedure. But those procedures do exist to protect the ordinary cit izens including mem bers who ha ve been improperly dealt with. MR, CHERNIACK: You think mandamus could be used to protect the member? Balfour. MR. BALFOUR: I'm not positive . MRS.

LePERS: Sorry, I don't know how to answer it. MR. DEPUTY CHAIRMAN: Mr. Balfour, would you care to answer? MR. BALFOUR: Thank you, Mr. Chairman.

With the new pro ced ures in the statute the Compla in ts Committee, the investigation chairman, the Discipline Commi ttee, appeals from all those groups to the Board, further appeals from the Board to the Court of Queen's Bench with the provisions for keeping transcripts of the testimony at the various stages, it's my understanding it's the feeling of the association that an automatic trial de novo is not necessary and really would seriously take away from the peer group review process. MR. CHERNIACK: So Mr.

Balfour, you would deny to the courts the right to decide that for whatever reason it feels it ought to hear the evidence de novo, you would deny them that right? MR. BALFOUR: No, no. MR. CHERNIACK: I didn't say that they shall do it. Wha t I'm proposing is tha t the cour t shall on 539 MR. CHERNIACK: I'm not even sure certiorari might. But you're saying there's a common law right for the court to order a new hearing before whom? Who would hear it? The Board again, the same counsel? MR. BALFOUR: Yes. MR. CHERNIACK: That's the very point, Mr . Balfour.

You're saying the court can decide that the counsel shall rehear the case they've already heard. I'm saying the court should be able to say, for whatever reason, for arguments presented to us we feel it would be better to remove from the body itself that final decision and provide a judicial body, the court, before which it could be heard. When the courts generally order a retrial of a hearing they order a judge to reopen a case. But in this case you're saying that the counsel which dealt in camera on an issue may be ordered by the court to hear the same thing all over again.

Is there any likelihood that that counsel on rehearing would do any differently than it did the first time? MR. BALFOUR: Very often when discipline boards are ordered to rehear the case the courts will

Wednesday, 20 May, 1981 ind icate in their decision the areas they felt the discipline committee or board erred. No, no one can guarantee that they won't repeat those errors but hopefully they're guided by what the court says. But the concept, Mr. Chairman, is one of peer review. Who is best able to adjud icate on whether a professional has or has not been competent or incom petent, except his peers? The new procedures - and they are new procedures to this association - are in-depth, there's four different steps, there's various appeals; it is a peer review and it's not a court determination.

If there are clear abuses the courts have certain inhe rent powers that can be brought to bear. MR. CHERNIACK: Mr. Balfour, you say that on many occasions the courts have ordered a review by a discipline committee and frankly I'm not aware of any but that's because my knowledge is lmited. Are you aware of . . . ? MR. BALFOUR: Yes I am. MR. CHERNIACK: You are. May I invite you to let me have whatever you know in due course, not part of the committee? MR. BALFOUR: Yes I will. MR. DEPUTY CHAIRMAN: Are there any further questions? Mr. Walding. MR. WALDING: Mr. Chairman, I have one question to Mrs.

LePers and perhaps I missed it. Did you mention that

Section 8 was different from the MARN Bill? MRS. LePERS: Yes I did. MR. WALDING: Can I ask you again to tell us the reason for that? MRS. LePERS: The Board feels that we have been given the powers for managing the association; that we should have also the ability to fix fees. Fees have to be justified to the membership. Budgets have to be drawn up each year. The membership does have some opportunity for input there but that we should have the right to fix the fees. MR. WALDING: Without reference to or approval by the memb ership as MARN does and as The Pharmaceutical Act and probably several others do as well.

MRS. LePERS: In practice we do refer to the membership. MR. WALDING: Why are you making the change if that is something that you do anyway? Why not leave it? MRS. LePERS: In our present Act the scheduling of fees is one of the items of the Act. We don't have by-laws and it is not part of regulation in the other Act. 1t is part of the Act and we have kept it on there. MR. DEPUTY CHAIRMAN: Are there any further questions? Mr. Walding. 540 MR. WALDING: I haven 't qu ite fini shed , Mr. Chairman.

Would you then have any objection to bringing your Act in line with other Acts in this regard and having the approval of your members? it's sort of a stamp of appr oval in that case; it wouldn't be then a matter of eight people imposing an assessment on all of the members against their will. MRS. LePERS: No I don't suppo se I have any great objections to it being in by-laws. I think it might be easier the way it is at times. If there are difficulties it would be easier if the Board had the ability because annual meetings tend to be once a year. But no I wouldn't object I suppo se being in by-laws. MR.

WALDING: Okay, thank you. MR. DEPUTY CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, I'd like to ask Mr. Balfour a question with respect to subsections 17(1) and (2) of the Act. Mr. Balfour could you justify the existence of those subsections in Bill 21?

That kind of provision is not contained in the nursing legislation that was passed last year as you know, is not sought in the legislation tha t ha s been pro posed for consideration with respect to the other, of health disciplin es and associations that is in front of us at this time, with the single exception of The Medical Act and the College of Physicians and Surgeons.

I think that there is a justification that can be offered for that provision in the case of The Medical Act but I find it difficult at this juncture to accept it in the case of The Physiotherapists Act, particularly since your regulations would presumably take care of the methodology that you would employ for expulsion of members from the register and the reasons for that expulsion. MR. DEPUTY CHAIRMAN: Mr. Balfour. MR. BALFOUR: Thank you, Mr. Chairman.

Under the existing Physiotherapy Act there is the concept of the members being of good moral character, a concept which they wish to preserve, and it is felt that they have done so through

Section 17 .

Section 17 indi cates that a person can be refused to be registered initially as a member if he or she has been convicted of an indictable offence under the Criminal Code, and simi larly a member can have his or her membership suspended or revoked if he or she is convicted of a similar indictable offence. But again, as I mentioned earlier, Subsection 2 of

Section 17 ind icates that there should not be a refusal of registration or a revokation of registration unless it's serious enough pursuant to the the criteria laid down by Subsection 2. MR. DEPUTY CHAIRMAN: Are there any further questions? The Honourable Mr. Sherman. MR. SHERMAN: The difficulty with it lies in the incon sistency that it represents with respect to other legislation in this field. If one looks at The Medical Act you can find a justification for it, because the regulations under The Medical Act do not contain provision for dealing with expulsions of this kind. But under the proposed legislation and the exis ting

Wednesday, 20 May, 1981 legislation for the other health professions and discipli nes and under the proposed bill in front of us, the regulations would provide the means and the method for either refusing entry onto the register of a certain applicant's name or for expelling the name from the register. And presumably the board in this case would giv e very serious consideration to exercising that prerogative in the case of a member or an applic ant who had been convicted of a serious indictable offence. I'm not arguing with the morality of the provision.

I would think there would certainly be instances that one could think of quite readily where the board wou ld be justifie d in refusing registration or expunging registrations. But my problem is with the requirement for 17(1) and (2), and you've suggested that 17 (2) probably is not necessary, but the requirement for 17(1) in the Act when the means and the method will be provided under your regulations which have to be app roved by Order-in-Council but would certainly be approved from the perspective of giving you that much control over the moral turpitude and the ethics of members of your profession.

So my difficulty is with the suggestion or the insis tence that it be in the Act when the means will be provided to the association under the regulations. MR. BALFOUR: I understand, Mr. Chairman, that the Association has no grave objection to it being removed. lt would, as the Honourable Minister points out, be covered otherwise in regulations. MR. DEPUTY CHAIRMAN: Mr. Sherman, do you have any further questions? MR. SHERMAN: No, Mr. Chairman. I appreciate Mr. Balfour's response. I appr eciate the fact that he suggests that the Association would not have any particular objections to removal of this section.

In the other health legislation, Mr. Chairman, as Mr.

Balfour is aware, that sort of frame of reference and term of reference for the Board, where removal of the name of a member from the register is concerned, is dealt with in a subsection that provides for removal at the request or with the written consent of the member where the name has been incorrectly entered, where notification is received of the member's death, where the member has been suspended, or where the registration of the member has been revoked. lt would be my suggestion that a similar provision be written into this legislation in place of 17(1) and 17(2) for the sake of consistency and then that certainly the whole methodology for revokation of registration would be covered in the regulations - if that's acceptable to the Associ ation.

MR. BALFOUR: I believe a good part of what has been suggested is contained in 13( 1) of Bill 21, consistent with other health legislation. MR. DEPUTY CHAIRMAN: Are you completed on that subject? Mr. Jenkins. MR. JENKINS: Thank you, Mr. Chairman. Through you to Ms. LePers. The answer that the witness gave to my colleague, the Mem ber for St. Vital, Mr. Walding, on

Section 8 disturbs me because really we are allowing, I think, you agreed that you were going to have eight members of this Board of Directors, 541 two of whom shall be persons not members of this Associ ation. You're going to have members, people who are not even associated with an Association, determining what the fees of the members of that Association would be. I can tell you, as an old trades unionist, I would object very strongly if my trade union was to set up its executive to determine what the fees of my union were going to be without giving me an opportunity to vote on it.

I think in the other legisla tion that has been passed here it's within the by-laws that at least the ratification of the fees should go to the general membership, and if I might say it doesn't to me sound very democratic.

In fact, I would say it would be very undemocratic and I would suggest strongly to you that perhaps you should look at that portion of The Manitoba Association of Registered Nurses Act and their regulations, because you are going to set up according to your Act that you have here that by the by-laws for elections and the appointment of members of the board, and perhaps also that you could look at the fee structure at the same time. MS. LePERS: I have agreed with Mr. Walding that we would be prepared to consider this.

Perhaps No. 8 does sound very undemocratic in hard writing; in actual fact it is not undemocratic in the way it is handled. I'm prepared to have it put in by-laws, yes. MR. JENKINS: I can assure you, Ms. LePers that as a former president of my local union, if I had ever attempted to tell my local members what their fees were going to be without gi ving th em the opportunity, they would have removed me at the next general election. Tout de suite. MR. DEPUTY CHAIRMAN: I heard the remark tout de suite, are we now conversing in fran.;;ais. Mr. Ba(four. MR. BALFOUR: Just one final point, Mr.

Chairman, it was suggested here this evening that

Section 9 has a limiting effect and I agree with that. The main reason for that is because the word physiotherapist was used in that

section and that is defined to mean a person registered under the Act and I would suggest for your consideration that it could have the wider interpr etation that some members here were seeking if it were amended to read "no person shall engage in the practice of physiotherapy or offer to engage in the practice of physiotherapy or hold himself out as a physiotherapis t". The sports trainer who is in effect practising physiotherapy is not holding himself out as a physiotherapist, a registered member, but he is indeed holding hi mself out as practising physiotherapy.

I think then the publi c could have the greater protection which I believe we all understand that it deserves. MR. DEPUTY CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: Well, now are you saying that you want exclusivity of practice and you want - I mean, you didn't ask for it. Now you're asking that you can bar anybody else from doing the kinds of work you do? Are you ready for that? MR. BALFOUR: I'm advised, Mr. Chairman, there may be some problems and if you take the

Wednesday, 20 May, 1981 suggestion under advisement and the Association will be in , further commu nication prior to clause-by ­ clause review. MR. DEPUTY CHAIRMAN: Are there any further questions? The Committee thanks the delegation very much. Are there any other persons presenting briefs on The Physiotherapists Act? My associate will now take over as I step out for a cup of coffee. BILL NO. 22 -

AN ACT TO AMEND THE ARCHITECTS ACT MR. CHAIRMAN, Warren Steen: Next bill, Bill 22,

An Act to amend The Archit ects Act. Mani toba Association of Architects, Mr. Jim McFeetors, Ms. Helene Peters. I know that the architects are present. I'm not sure whether they wish to make a presentation or just what. What is your intention, Mr. McFeetors. MR. JIM McFEETORS: Well, my name is Jim McF eetors. I'm past president of the Mani toba Association of Architects. MR. CHAIRMAN: Mr. McF eetors, could you turn that mike up a bit? MR. McFEETORS: don't in tend to make a presentation, Mr. Chairman.

I just wish to mention that the purpose of the amendments to the Act is to merely update our Act to eliminate some sections of the Act which we found unworkable in our present situation, and to add some we feel are meaningful sect ions rega rding public li abil ity. Tha t is the intention of our amendments and if there are any qu estions tha t the Comm ittee ha s, I would be pleased to answer them. MR. CHAIRMAN: Members of the Committee, are th ere any questions to Mr . McF eetors? Mr . Cherniack. MR. CHERNIACK: Mr. McFeetors, do you have any provision for the inclusion of lay-people on your board? MR.

McFEETORS: We don't have, but we have no objection to the inclusion. Unfortuna tely, the decision or the question was brought up after the Act had proceeded substantially. We waited so long to get a change to the Act that we were afraid that if we delayed it any further that it wouldn't make some very necessary changes during thi s sessi on, We would have no objection to adding lay-people to our board. In fact, we would welcome it. The percentage of members - we have a nine-member council - one or two lay-members to our board, as I say, would be welcome. We do have people that are not pract ising architects.

One is the member of the faculty of Architecture at the university. The other is a student at the university. They are nonpractising architects, They could be considered representing another part of the community. MR. CHERNIACK: We needn't discuss whether they represent another part of the community. They are architects. MR. McFEETORS: They are not architects yet. In many cases the representative of the school is not a practising architect, not a registered architect. 542 MR. CHERNIACK: Nevertheless, they are related to the profession. MR. McFEETORS: They are related. MR. CHERNIACK: And want to be.

You say you have nine memb ers on your board. My note says you have 170 members all together, so nine members seems to be a fairly practical approach to that. Your present law says not less than six nor more than 21 and you determine that by by-law, but you are prepared to agree to two out of the nine as lay, or two in addition to the lay? MR. McFEETORS: Well, that is something that we hadn't discussed, as I mentioned. We are not ... MR. CHERNIACK: Well, since you won't have time to tell us, do you find it offensive if we add two to your nine. MR. McFEETORS: No, we do not find that offensive. MR. CHERNIACK: Mr.

Chairman, referring to your candi date for adm issi on,

Section 11 , which substitutes Sections 13 (4), a candida te shall be admitted if he has attained a level of architectural education acceptable to the council". How would I, as a person who wants to be accepted as an architect, how would I know what is acceptable to the Council? Is it written anywhere? MR. McFEETORS: In the by-laws ther e is a designation as to what is acceptable qualifications.

Principally, what has happened in Canada in the last few years is that the national body of the arthitects' assoc iation, the Royal Architectural Institute, has established a certification program which a person applies for certification from the national body and are issued a certification number. The national body then determines whether they are qualified. We generally do not delve into their acade mic qualifications if they have that certification. That is part of our by-laws, MR.

CHERNIACK: Under (b), you do talk about "following the completion of the education to serve as a full-time employee for a period prescribed by the by-laws". Your by-laws, are they su bject to review by the Lieutenant-Gov ernor-in-Council or anything like that? MR. McFEETORS: I believe they are. The reason we say that by the by-laws is that we have presently a two-year requirement. Many provinces in Canada require three years. If an applicant here qualif ies for memb ersh ip here and su bsequently moves to another province, they might not be in a position to be registered.

So therefore we have wanted to allow ourselves the flexibility to change the term so that we have a cross-Canada requirement in as far as practical experience. MR. CHERNIACK: The point I would make is that it would be in my interest on behalf of the public to make it possible for more and more architects to be available to provide service to the community. I think it would be undesirable if you set your level so high

Wednesday, 20 May, 1981 as to make it very difficult for a person to become an architect. In other words, you wouldn't be serving yourselves by being restrictive. lt seems to me that the level of education should be something that should be spelled out. You say it's in the by-laws and yet you don't say it must be in the by-laws. The period of time, you say, is in the by-laws. I make that distinction. MR. McFEETORS: lt is spelled out in regard to what are the qualifications required for admittance. MR. CHERNIACK: Then sho uldn't 13 (4)(

a) say, "attained a level of architectural education as set out in the by-law s"? MR. McFEETORS: As prescribed by the by-laws. But again, the minute you write it in, written, you do not have the flexibility to make adjustments. We have many people who come here with qualifications that might not meet exact requirements. Therefore, the council has the right to determine whether these people are in, effect, qualified to practice. Many European universities do not have courses that are exactly like our courses here at the Uni versity of Manitoba. We have made decisions based upon other qualifications. MR.

CHERNIACK: My file shows that you've had some difficulty in getting legislation changed. But surely you have no problem changing your by-laws to conform to ... so then you shouldn't really object to having it set out in by-laws so it can be seen, so that nobody has to MR. McFEETORS: I have no objection. I'm just saying that we hope to have a national requirement as far as acceptable qua lifications. MR. CHERNIACK: Now you wish to restrict the right to do the architectural work for certain types of buildings; you want to restrict it to only your own members.

You want to have exclusivity of practice at a certain level. MR. McFEETORS: Clause 17(1 4)? All that clause is - the Manitoba Building Code spells out that is a requirement, that no person shall build a building that exceeds that in size. Our Act at present states that no person shall build anything over $35,000 without the services of an architect. So we are in effect exten ding that clause to conform with the Manitoba Building Code. MR. CHERNIACK: Well, do you need it at all? If the code sets it out, what do you need it for? MR. McFEETORS: Well, we just felt that it tied the Act into the code as well. MR.

CHERNIACK: But when the code changed and the Act didn't change, you found contradictions. MR. McFEETORS: We never considered that, but it could be something that could be considered, but I would not be prepared to say personally that . . . MR. CHERNIACK: Ha ve you pr ovided ap peal provisions in your discipli nary section? 543 MR. McFEETORS: Yes, we have. They're

Section 19 and 23. MR. CHAIRMAN: Any further questions to Mr. McFeetors? Mr. Walding. MR. WALDING: Mr. Chairman, to Mr. McFeetors along the same lines that we were speaking to the last gr oup about th e matter of Council fixing entrance fees and annual fees. MR. McFEETORS: We have had a difficult problem with our Act which set a limit on fees, which have put us under extreme duress. (Interject ion)- lt limited it to such a small amount that every year we were without funds for the first part of the year. The Council is elected by the memb ersh ip.

The membership stipu lates that for a one-year period or whatever the period is that individuals are elected - but a general meeting is held at least once a year - the y are res ponsible for the affairs and if an extraordinary circumstance arises in that we must have additional funds, the Council will have to raise the funds. If the membership do not agree with it, at the next general meeting it can be brought up. MR. WALDING: That is a requirement under your by-laws at the moment, I understand. MR.

McFEETORS: Gene rally the fees are established at the annual meeting and that is usually not until after the first of the year. Unfortuna tely that means our statements don't go out till April or May, so essent ially what we'r e doing is we'r e on a calendar year; we hope we can establish the requirements for the year; send out the billings as of the first of January. MR. WALDING: Surely that depends on the timing of your annual meeting. MR. McFEETORS: Our annual meet ing is established that it has to occur at the end of January, within February, somewhere in that area. MR. WALDING: Is that in the Act? MR.

McFEETORS: That's in the Act or in the by­ laws that it is established, but we can't have it any earlier. lt would be difficult to have it any earlier. MR. WALDING: Apa rt from the adminis tr ative details, is there any reason why it shouldn't be a by­ law and subject to the approval at a membership meeting? MR. McFEETORS: I think the membership always has the ability to bring up and disagree with what Council has done at its annual meeting.

If they don't like what Council has done they can turf them out, but the thing is that the council having been elected in a democratic way and given the responsibility of operating the association for that period of time, we feel should ha ve the flexibil ity to res pond to extra ordi nary circums tances. (Int erje ction)- I know what you're suggesting but we feel it would limit the ability of the association to respond to extraordinary costs, that's all, within the jurisdiction that has been given it.

Wednesday, 20 May, 1981 MR. WALDING: Is your executive elected at the annual general meeting? MR. McFEETORS: We have a rotating - two new mem bers are elected each year. We feel it's absolutely essential for continuity. We have national bod ies tha t mem bers belong to and without continuity on the Board, it would be almost chaos in dealing with the national bodies. MR. WALDING: So you elect two members each year out of a total of eight, nine? MR. McFEETORS: The ninth is actually the member from the Uni versity of Manitoba so he is appointed. We have eight elected members; two are elected each year. MR.

WALDING: But the ninth is a voting member. MR. McFEETORS: He's a voting member, but he's a representative of the School of Architecture. MR. WALDING: So if the membership were to be so annoyed at their Council that they wanted to turf them all out it would take them three years to do so. MR. McFEETORS: They can petition to have other members of the Council removed at a meeting. An annual general meeting can do a lot of things. I think it has a fairly wide jurisdiction. If it really feels it is being manipu lated or hard done by, it can make its annoyance known and do something about it. MR.

WALDING: This seems a bit complicated if your membership is a little annoyed at your Council for this one thing. They might have complete confidence in them for everything else and be prepared to have the continuity and give them confidence for the coming year. Yet because of this one thing, you say there's got to be petitioning to remove people, which seems very drastic to cope with something they would cope with anyway if it was in the by-laws instead of just in the Act. MR.

McFEETORS: This was presented to the annual meeting, the changes to the Act, and including the flexibility of Council to vary the amounts of fees and it was accepted without question, and each clause was dealt with indi vidually. MR. WALDING: Did anyone point out to the membership at the time that this is the way it happens in many other associat ions and this seems to be the trend of professional associations? MR. McFEETORS: I think it has been obvious, as I said, because of our other problems with our own annual fees. lt has been obvious that Council must have some flexibility and our membership agreed with it.

MR. WALDING: Okay, I don't want to get into an argument. MR. CHAIRMAN: Mr. Uruski. MR. URUSKI: Mr. Chairman, if I understand your legislation, presently your fees are designated right in 544 the legislation that it can't be changed and were designa ted in 19 70. Would you object to having those fees set by by-law, by your Council? MR. McFEETORS: The Council would have to set them each year. They could not respond then to an increase. We have just moved to new premises, for instance. We had to change, we had to prepare a long way ahead to do that.

We had to get approval of a special levy, which is what we're doing now. Every year we had to go for this. You can't just present an annual fee and say this is what it's going to cost us to run our association this year. We had to prepare in effect a by-law which created a levy. We'd be in the same circumstances that we're in now. We just feel that if we elect responsible people to run our organization and then give them the right to do what has to be done. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: I wonder if we could invite Mr.

McFeetors to meet with the Legislative Counsel and try to agree on the wording for the provision of two lay people to the Board, if I might ask that. Mr. Mc Feetors indicated -(I nterjection)- No, before we pass the - No, I mean at convenience of course, Mr. Chairman, until we come to deal with the sections themselves. MR. CHAIRMAN: I hope Mr. Cherniack the sponsor of the bill agrees with the amendment. You don't care? MR. CHERNIACK: Well, I don't worry about the sponsors as I do about the architects themselves. MR. CHAIRMAN: We'll see. We'll see when we get there then. MR. CHERNIACK: Mr.

Chairman, I wanted to - there's another question I had here. Whil e I'm looking for that, I'm wondering if Mr. McF eetors is satisfied to give one moity of the penalty to the Minister of Finance. I just looked up what it means. I didn't know until now. MR. McFEETORS: What was that, Mr. Cherniack? MR. CHERNIACK: lt says, "the penalty impo sed upon any conviction shall be paid to the Min ister of Finance, one moity of which shall be applied to the Consolid ated Fund and the other paid to the . . . MR. McFEETORS: But that was from the old Act. MR. CHERNIACK: Yes, but it's still here. MR.

McFEETORS: That shows how long ago it was MR. CHERNIACK: You haven't taken it out, have you? MR. McFEETORS: I don't think so. MR. CHERNIACK: I hope not. I'd like to see that stay here. No, you've not taken it out. I know what it is; I looked it up. I'll pass, Mr. Chairman, I did have another question.

Wednesday, 20 May, 1981 MR. CHAIRMAN: Any further questions? Mr. Green. MR. SIDNEY GREEN (lnkster): Sorry I didn't get the gentleman's name; I was not here. MR. CHAIRMAN: Mr. McFeetors is his name, Mr. Green, Mr. McFeetors. MR. GREEN: Thank you very much. Mr. McFeetors, if you will look at the bill -

Section 9 of the bill - I don't know what the existing

section says but I find it unusual that I have to legislate that the council may adopt a

schedule of suggested fees to be charged by members of the association for professional services. My question to you is: Do you know of any law that would prevent you from having a suggested

schedule of fees to be charged by members of the association for professional services? MR. McFEETORS: No, we felt that was within the requirements of any law, that it is only a suggested fee. MR. GREEN: Only a suggested schedule. If it was against The Combine s Act then the government of Manitoba wouldn't have power, I would submit, to legislate that they can do it. lt wouldn't override The Combines Act. But my question is: Supposing this wasn't there? I have to explain to you, I'm sorry, but I don't really like to legislate unless I can't do it with . .

Legislation sort of gives me the power to do something that I don't otherwise have the power to do. I wonder why it has to say that. Why couldn't the council get together and say here's what we suggest the fees are for our work? MR. McFEETORS: The Federal Government will appro ve any fee within their juri sdiction that is passed by the council of the area that it is concerned with. In other words, if the Manitoba Association of Architects adopts a suggested fee schedule, the Federal Government will app rove that fee schedule. MR.

GREEN: This may be a bit unfair to you but I'm asking you, if I was convinced that you would have the power to do that - that the council of the association had the power to do that and did it and the Federal Government would accept it without this section, then would you be worried about having the

section and I guess with me it's almost a . . . you might even think it's comical, that it's a fetish, that I don't like to put into legislation something that I can already do, because that implies that the legislation gave me the right to do it. I prefer to think that I have the right to everything that the legislation doesn't prevent me from doing. So what's to prevent if this Act were passed and if Legislative Counsel is going to correct me then I'd be happ y to be corrected. But what if you didn't have this?

Couldn't the Council of the Architects get together and say we're going to pass a by-law, recommending that this is what we think the services of architects should be charged at, knowing that they could charge less or more or nothing. I mean that's ... MR. McFEETORS: I imagine that there are a lot of things in this Act that if we come down to the common denominator we could elimina te them or 545 MR. GREEN: You're just going to get me looking through the Act finding other subs ections.

I am worried about this particular one and I assure you that I have said the same thing with regard to other bills that have been presented to the Legislature. So I am wondering what the situation would be if you didn't have that, if it didn't say that. MR. McFEETORS: Mr. Chairman, I don't know. MR. GREEN: Mr. Cherniack might help me. MR. CHAIRMAN: Mr. Cherniack. MR. CHERNIACK: I think, Mr. Chairman, if I'm recognized I could help Mr. McFeetors, because if Mr. Green knew what

section this replaces then I think we'd understand how they got to it. Firstly, they didn't want a blank No. 11. I think they just wanted to fill No. 11 . But what it replaces reads: "The council may adopt a tariff of minimum fees that may be demanded and recovered in law by members of the association for professional services." MR. GREEN: I think that

section might offend the Combines legislation and therefore . . . and I did this the other day - we did it the other day. lt would be just as easy to say

Section 11 of the Act is repealed and that would permit you to do what this

section says, the

section that is being replaced and we have fought within the Law Society about this too. I don't believe that they have a right to tell me what I must charge but they do have a tariff of fees which they recommend. But in the absence of this

section and in the action of

Section 11, wouldn't you have that right if we just repealed the tariff of minimum fees which probably or I guess somebody is worried that offends The Combines Act? ! can tell you, Mr. McF eetors, that in the Law Society there were some who argued that if I don't charge what they say I should cha rge, it's professional misconduct. (I nterject ion)- There have been people who have definitely argued that. lt has been argued in various jurisdictions. What I am really asking you is, if we repealed this and you were convinced that you had the right to at the same time adopt a

schedule of suggested fees repealing the one that says a minimum tariff, would that be of consequence to you? MR. McFEETORS: I can't make that decision based on my own personal observation. The council and the membership accepted the change that has been outli