Whitehorse, Yukon

Tuesday, April 24, 1990 - 1:30 p.m.

Speaker: I will now call the House to order. At this time, we will proceed with Prayers.



Speaker: We will proceed with the Order Paper.

Are there any Returns or Documents for tabling?


Hon. Mr. Penikett: I have for tabling two legislative returns.

Hon. Mr. Webster: I have for tabling three legislative returns.

Hon. Mr. Byblow: I, too, have some legislative returns for tabling.

Mr. Lang: I have for tabling a series of proposed amendments to the Child Care Act. I table them for the purpose of giving the government due notice of our intent.

Also, I want to inform all Members that when we proceed with the Child Care Act, it will be our intention to ask that witnesses appear before the Committee of the Whole in order that all Members can hear from parents and operators how the proposed legislation is going to affect them and, most importantly, affect the children of the Yukon.

Speaker: Are there any Reports of Committees?


Hon. Mr. McDonald: I have for tabling the first report of the Standing Committee on Rules, Elections and Privileges.

Speaker: Petitions.


Mr. Lang: I have an additional 198 signatures of Yukon residents requesting changes to the proposed Child Care Act and I table them for consideration of all Members.

Clerk:  I have had  the honour to review the petition, being Petition No. 6 of the First Session of the Twenty-seventh Legislative Assembly as presented by the hon. Member of Whitehorse Porter Creek East on April 23, 1990.

Pursuant to Standing Order 66(1) of the Yukon Legislative Assembly, it is my responsibility to report whether petitions conform to the rules recognized by the House. This petition does not conform in the following respects:

1. The petition is not addressed to the Yukon Legislative Assembly as required by Standing Order 65(1) and Appendix 2 of the Standing Orders. A message, which was attached to the cover of the petition sent to the table and which was read to the House by the Member for Whitehorse Porter Creek East, was addressed to “All Members of the Official Opposition”. It was signed by two persons who had also signed the petition, but there was nothing to indicate that the other people who had signed the petition were even aware of or agreed with the content of that message. It cannot, therefore, be used as an indicator of the intent of any but the two petitioners who signed it.

Looking elsewhere, there is no intended recipient identified on those pages on which signatures appear, and an unsigned attachment to those pages states that the document is an “open letter to Yukon parents and other individuals concerned about the quality, range of services and affordability of child services in the Yukon.”

2. The petition is not dated as required by Appendix 2 of the Standing Orders.

Speaker:  I must, therefore, rule that Petition No. 6 cannot be received.

Introduction of Bills.


Bill No. 29: Introduction and First Reading

Hon. Mr. McDonald:  It is my distinct pleasure to move that Bill No. 29, entitled Education Act, be now introduced and read a first time.

Speaker:  It has been moved by the Minister of Education that Bill No. 29, entitled Education Act, be now introduced and read a first time.

Motion for introduction and first reading of Bill No. 29 agreed to

Bill No. 30: Introduction and First Reading

Hon. Mr. McDonald:  It is also my pleasure to move that Bill No. 30, entitled Teaching Profession Act, be now introduced and read a first time.

Speaker:  It has been moved by the Hon. Minister of Education that Bill No. 30, entitled Teaching Profession Act, be now introduced and read a first time.

Motion for introduction and first reading of Bill No. 30 agreed to

Speaker: Are there any Notices of Motion for the Production of Papers?

Notices of Motion.


Mr. Devries: I would like to read this motion into the record:

THAT it is the opinion of this House that the work done by volunteers is of tremendous benefit to Yukon society as a whole;

THAT volunteers spend a great deal of their own time and money in providing these necessary services;

THAT all levels of government should recognize and encourage the community work done by the volunteers, and;

THAT this House urges the Government of Canada to increase the tax exemption for honorariums paid to volunteers by all levels of government from $500 to $1000.

Mr. Phillips: I give notice of the following motion:

THAT this House urges the Minister of Tourism to establish a Yukon ambassador-at-large program for Yukoners who travel outside the territory and who wish to promote tourism travel to Yukon.

Speaker: Are there any Statements by Ministers?


Education Act and Teaching Profession Act

Hon. Mr. McDonald: Earlier today I had the opportunity to introduce a bill which, when it is passed, will profoundly alter - for the better - the Yukon’s education system.

Bill No. 29, the Education Act, is going to take Yukon public education through the 1990s and into the 21st century. It will provide the basis by which we and our schools will meet the changing needs of Yukon society now and in the future, and, more importantly, the educational needs of our children.

The Education Act is the product of over four years of consultation with literally thousands of Yukon people. Their views, advice and opinions shaped and formed the vision of public education for the territory, which now sits before us in this House today. However, the Education Act enshrines not just what parents and educators in the Yukon told us they wanted to see. It also responds, in a simple and clear manner, to the Canadian Charter of Rights and Freedoms. It provides for freedom of speech, minority rights, and special education for students with special needs. It provides for alternative means of education.

Point of Order

Mr. Phillips: Point of order, Mr. Speaker.

Speaker: Order please. Point of order to the hon. Member of Whitehorse Riverdale North.

Mr. Phillips: I listened with interest to the statement by the Minister. The speech the Minister is giving is obviously a second reading speech on the Education Act and it is contrary to Standing Order No. 11(8), which states that “Ministerial statements as listed in Standing Order No. 11(2): A Minister may make a short, factual statement of government policy.”

I would like to know when the Minister is going to give his short, factual statement of government policy. I believe the Minister is abusing the privileges of ministerial statements.

Hon. Mr. McDonald: On the same point of order, if the Member would allow me to finish the ministerial statement, he would understand the character and nature of the government’s statement of policy. If he read the Education Act and the proposals for change, which are not only embodied in the act but are also characterized by the changes of policy that the government made as a result of the consultation process, he would notice that there is a substantial change in government policy with respect to education. I am a little more than upset that he has tried to use a spurious point of order to try to recapture or maybe try to maintain some semblance, if any, of credibility with respect to this question.

Mr. Lang: On the same point of order, all Members have been involved in making the rules for the House. The procedure is very clearly laid out. When a bill is tabled and given first reading in the House, there will be a time set aside at some given point for all Members to rise to speak on second reading to a bill that all Members have had an opportunity to read. I think it is unfortunate that the Minister would use the ministerial statement to give a second reading speech on his bill when no other Member of this House has had an opportunity to read it and be in a position to comment one way or another on the legislation before us.

The relevancy of clause 11, as my colleague, the Member for Riverdale North stated, is very clear. Ministerial statements are for a statement of policy. Obviously, you do not have to be a Member of this House, you can be a member of the public listening, to see that it is a second reading speech that preempts all the privileges of all the Members in the House. This is unfortunate.

Hon. Mr. Penikett: On the same point of order, what the Minister is attempting to do, and what he would have the right to do in any parliament in the English-speaking world, is to make a statement of government policy without interruption. He is making a statement on new education policy for this government, indicating that part of the expression of that policy is contained in two bills today. He is setting the context for that policy and indicating the direction of education reform in this territory as a result of four years consultation. This ministerial statement, which is about not only policy, but major policy - a statement which the House should listen to with respect, as it represents the views of thousands of Yukoners and should be listened to without interruption by spurious points of order. It is a statement of policy. It is not a second reading speech. I am sure the Members, when they have a chance to hear the Minister’s second reading speech, will know that he is dealing with the flesh-and-blood substance of the reforms contained in the act. The only reason Members are in a position to interrupt the Minister today is because a proper courtesy has been shown in extending a copy of the statement in advance. That is a courtesy long observed in this House. It is not a courtesy that should be abused by taking advantage of the advanced notice in order to interrupt or obstruct the presentation of the statement to the House and to the public.

Mrs. Firth: The rules clearly state, as listed in Standing Order 11(2), “A Minister may make a short, factual statement of government policy.” It would only diminish the importance of the Education Act if the government and the Minister, particularly, were to feel he could stand up, in all honesty, and make a short, factual statement with respect to the Education Act. Therefore, we on this side submit the contents of the ministerial statement are not appropriate as the Minister has presented them.

Speaker’s Ruling

Speaker: Order please. The Chair will need time to review this matter. I would like to take this under advisement. At this time, I would enjoin the Minister to finish his statement.

Hon. Mr. McDonald: It was only in December that I tabled in this House a copy of the draft education act. It was a working document and was used for discussion purposes in the final round of consultations. We were very proud of that draft act and felt it truly captured what the people of the Yukon said they wanted in our education system.

Although it seemed it could not be done, I think it is fair to say now that we have improved on that document and the results are contained in Bill No. 29. For example, we have further entrenched the rights of parents, especially those who choose to educate their children at home or at a school that is not publicly funded. We enhanced the provisions for due process already contained in the draft act. As a review for the McGill Journal of Education noted, “Everyone, it seems, will ... have the right to appeal.” These provisions, it was observed, are “particularly distinctive”.

Bill No. 30, the Teaching Profession Act, complements Bill No. 29 ably and well. As you know, its provisions once were part of the draft education act but were removed, at the request of the Yukon Teachers Association, in order to be dealt with as a separate piece of legislation. This bill formally recognized teaching as a profession. By providing for the ability to self-regulate, the act gives the teaching profession here the same rights enjoyed by virtually all other professions in the Yukon, and by teachers across Canada. This ability is a very important right, and one this government is prepared to support.

If I were forced to describe the Education Act and the Teaching Profession Act using just one word, it would be empowerment. It is the empowerment of parents, of students, of educators, ultimately of communities, and of the people of the Yukon. This empowerment is not just through our “particularly distinctive” appeal procedures, but through the delegation of responsibility to all levels of the education system. What the Education Act and Teaching Profession Act do is bring decision making closer to the people who are affected by the decisions.

This government has made a point of consulting with those parties, who will be affected in the course of implementing new legislation, or developing new regulations and legislation, or plotting our economic future.

The Education Act is proof positive of this government’s commitment to open discussion and consultation.

I ask you to keep in mind that this bill is, above all, the perfect balance between the needs and the aspirations of the stakeholders in the Yukon’s education system - the students, parents, educators and administrators.

It is a balance that achieves what some once thought impossible: equity and fairness for all stakeholders. No group profits at the expense of another. What the Education Act does, in fact, is encourage and foster cooperation between the stakeholders, whether it be through appeals, through due process, or the day-to-day operation of our schools and education system.

I am very proud to have been able to present to you, for the first time, the distillation of years of work that is the Education Act. In reality, it is much more than a product - it is a process. The choice we made years ago to rely on the common sense and good intentions of the Yukon people involved with the education system, to shape the education system, has determined the direction education will take in the Yukon. It is a process that I have no doubt has already altered the way this government acts and will very likely be a precedent for other governments to follow.

“Partners in Education” is the slogan used during the last two years of the Education Act consultation process. It sums up the act’s intent to fully involve teachers, parents, students and the community in the goal of developing the “whole child” so all students may develop a love of learning and become productive, responsible and self-reliant members of society while leading personally rewarding lives.

Mr. Devries: I have listened to the statement of the Minister and, in my opinion, a huge portion of it is similar to a second reading speech. I still have not received a copy of the legislation at this time, so I am not prepared to comment on it, nor do I wish to abuse the privilege of the House as the side opposite has done. I will be prepared to comment on it at a later time.

Hon. Mr. McDonald: I find it strange that Opposition Members regard this act, and the actions of this government with respect to education generally, as being somewhat of a new occurrence. Clearly, the Members have not involved themselves in the run-up to the act and the public consultation process and, so, feel somewhat incapable of responding to the principles of education the government has proposed and, also, to comment on the general direction education in the Yukon is taking.

The government has taken great pains not only to communicate with other Members with respect to the Education Act and its development but, also, to offer the opportunity for those Members to have detailed briefings on the legislation. In my view, the Members who are protesting that somehow their rights are being violated have ignored the fact there has been a very extensive consultation process, have proven themselves quite incapable of addressing even one element of education policy in this territory, and have ignored the fact and the courtesy of the offer by the government to give them a full and detailed briefing to help them do their homework to prepare for the legislative debate we hope will be coming next week.

I am ashamed.

Speaker: It is now time for Question Period.


Question re: Education department staff turnover

Mr. Phelps: It is not every day that we get Question Period after a second reading speech on two bills - it was nothing more than that.

I have some questions, it so happens, of that same Minister, the Minister of Education, with regard to the extremely heavy turnover of officials in the administration branch of his department. Yesterday the Minister would only acknowledge there was a problem with morale in the advanced education branch of his department. The turnover in the past 12 months is about 39 positions, yet there is only a total of 23 positions in the advanced education branch. Would the Minister confirm that the advanced education branch contains about 23 positions?

Hon. Mr. McDonald: I believe there are 19 person years associated with the advanced education branch. The allegations that the Member was making yesterday, with respect to the morale situation, and trying to attribute that situation to the entire department, are completely and utterly false. Further to that, the Member is trying to make the allegation that because people have left the department to go to other jobs, either within the government or outside the government, this is somehow attributable to bad morale. That is absolute intellectual dishonesty. It is wrong and I challenge the Member to provide that proof. I also challenge the Member to provide that proof outside the Legislature because the allegations that the Member is making with respect to the professional competence of people within the department, I think, is something that those people should have an opportunity to challenge, and in fact to take some actions to defend themselves. Clearly, the Member is using his parliamentary immunity inside this Legislature to make allegations...

Speaker: Order please. Would the Member please conclude his answer.

Hon. Mr. McDonald: ...to make allegations that he cannot substantiate and uses only spurious logic and only very narrow facts to support his case.

Mr. Phelps: Perhaps the narrow-minded Minister should confine his thoughts to his second reading speeches and not get into other realms.

Of the 39 positions that I am aware of that have turned over in the past 12 months, only five or six are from the advanced education branch. Eleven or 12 of the positions have been in finance and administration, policy, planning and evaluation, the public schools branch and the libraries and archives branch. Will the Minister of Education acknowledge that the turnover in advanced education represents only a small portion of the 39 positions that have been vacated, or are being vacated, in the 12 month period we are talking about?

Hon. Mr. McDonald: I am going to have to check the figures from the Member, because I do not trust his allegation of facts. He has already made one suggestion that there are a certain number of people within the branch of advanced education. I know that that number is incorrect. I will have to check the total numbers that the Member is referring to.

Again, I have to say - and I think it is only honest to say - that any attribution of vacancies in the department cannot be explained through poor morale. Yesterday, the Members asked a question with respect to grievances. Last year, the Department of Education only experienced one more grievance, over all, than it had in the previous year. Clearly, that cannot be an indices of complaints within the department, or an indices of concern within the department.

Clearly, I think the Member is trying to scrape up a few narrow facts, take them out of context and try to make a case that the Department of Education has a widespread morale problem, which is completely contrary to reality, and I again challenge the Member to make those statements outside the Legislature.

Mr. Phelps: Once the Minister answers the question, there is no real need to carry on huffing and puffing ad nauseum.

Will the Minister confirm that in the past two weeks there have been four resignations from the department: one from advanced education and the other three from other branches of the administration? Is that a fact?

Hon. Mr. McDonald: In the last couple of weeks we have unfortunately lost the services of the director of finance and administration, a very capable woman who went to the B.C. school board for a better job offer. We are obviously sorry to see her go; I have stated so publicly. She provided good services, both during the budget estimates time in the Legislature and also in her time spent with the Housing Corporation and with the Department of Education.

I think it would be folly - it would be complete and absolute and total utter dishonesty - to suggest that her leaving the department for a better job was attributable to her poor morale. It would be terrible if that impression was left, which is the impression that the Member for Hootalinqua is obviously trying to leave.

I think it is important that if the Member does have these specific allegations, and if he is committed to them, that he does make these same allegations outside the Legislature.

Question re: Education department staff turnover

Mr. Phelps: I would caution the Member not to impute words to me that I have not said. Yesterday, the Minister tried to make it sound as though the only morale problem in his department was in the advanced education branch of the administration - you can read Hansard - and that this was due to uncertainty about the future of advanced education and training, in terms of the priority of this government.

I suggest the malaise is far more widespread in his department, and that people are leaving because of the dictatorial attitudes of senior management in the administration.

Would the Minister not agree that officials are leaving, and have left, the department because of the dictatorial atmosphere?

Hon. Mr. McDonald: I find the Member’s initial remark quite fascinating. When the challenge is made to speak outside the Legislature on the specific allegations, the Member protested he did not mean anything by these allegations, or I should not impute anything on these allegations. The Member is designing the questions very craftily and cleverly to lead to only one conclusion, that there is incompetence in the administration of the Department of Education. He is doing that very cleverly, and he is getting the appropriate response from the media and the public. I am sure if he is prepared to commit himself to this, people will be prepared to say it elsewhere.

With respect to the morale situation in the department the Member has cited, I explained the situation quite fairly yesterday. I indicated I have reviewed the matter. Perhaps I did not say it clearly enough, but I do have the confidence in the management of the department. I must point out that the relationship between the department and the public and representative groups in the education field has never been better, in my view. I would challenge the Member to go to the Council for Yukon Indians, the Yukon Teachers Association, the Education Council, the special education groups, and ask what their relationship is like with the Department of Education. I can virtually guarantee they will endorse the relationship as being a productive and positive one.

Mr. Phelps: I am suggesting that the situation with regard to the personnel in the department is nothing short of chaotic. Is the Minister saying he is unaware of allegations of abuse of authority by employees in his department, and workplace harassment by senior management in his department? Is that his position?

Hon. Mr. McDonald: Where was the Member at 1:30 p.m. April 23, when he was asking questions in this Legislature and I was answering them? The Member asked questions yesterday with respect to the specific morale concerns of a few members of the branch of advanced education. Yesterday I did say that I acknowledged their concerns. I did indicate that I had had meetings with them. I did indicate that I did have a concern for their morale. I did indicate that I responded in general terms but also told the Member that specifics with respect to personnel matters are considered confidential and I would not be the one to divulge them on the floor or outside the Legislature.

Mr. Phelps: I have Hansard here. I have read it several times and that is why I am following up today.

Will the Minister stop trying to pretend that there is no problem in his administration branch and take steps to prevent abuse of authority and prevent workplace harassment by his senior manager?

Hon. Mr. McDonald: The Member will have to provide me with proof that there are problems within the administration branch of the Department of Education. He has provided no proof. He has taken, in a very dishonest way, a few facts with respect to personnel turnover in the department - meaning people who have left jobs to go elsewhere, whether for higher pay or otherwise - and attributed that specifically to some general malaise in the department. The Member has not provided evidence of this. He has made direct and specific allegations about the competence of various managers. I did indicate that the people involved came to me. I indicated yesterday that a few members of the branch of advanced education have come to see me about their particular concerns. I responded positively to those concerns. If the Member is trying to attribute the situation to a symptom of a general malaise in the department, he is wrong. If he is doing that knowing all the facts, then he is also being dishonest.

Question re: Work place harassment

Mrs. Firth: My question is for the Minister of the Public Service Commission.

Labour relations and the work situation in the Department of Education are deplorable. Employees are totally exhausted and frustrated. We are talking about workplace harassment and abuse of authority and not just in that department. We have received complaints from other departments as well.

There is no protection for employees from this kind of treatment. I would like to ask the Minister what she is going to do about it.

Hon. Ms. Joe: There is a process for grievances in the government, as the Member knows - someone files a grievance and it is dealt with. In regard to certain situations, if the Member feels that we do not have any kind of system to deal with it, we have a committee within government that is looking at certain things that they feel are not being dealt with through any process. I continue to get reports from that committee. I continue to react to certain grievances I have heard about that are not covered by any process in this government. There are certain individuals who sometimes feel that they do have a grievance and they are brought to our attention as well. Certainly, if something is not being done as well as employees feel that it should, those concerns are brought to us. As I have said, we do have a committee that is taking into consideration certain things they feel should be in place.

Mrs. Firth: If that is the case then there are obviously some shortfalls. There are no protections for these people when it comes to situations like workplace harassment and abuse of authority.

Perhaps the Minister can tell us if those are two of the options being looked at, or if she knows what options are being looked at by this committee?

Hon. Ms. Joe: When we assumed the government in 1985, a number of individuals came to us with certain complaints about harassment one way or another. The process that is in place right now was in place at that time; it  is certainly improving. There are different kinds of harassment, as the Member knows. Each and every one that comes to us is dealt with accordingly. There is not a perfect remedy in place. There needs to be an improvement, and we will certainly look at ways to improve it.

Mrs. Firth: I would respectfully submit that things have never been so bad. The Minister talks about five years ago, and I am talking about now. I am talking about phone calls I get from people who work for this government who are absolutely exhausted and frustrated, because they do not feel they have any protection from workplace harrassement and abuse of authority. They have met with their union representatives; they have met with the Minister and things still have not gotten any better; they are getting worse.

What is the Minister going to do about it. She just cannot carry on and allow people to be treated this way. The Minister has to do something about it. She is responsible for all the employees in this government.

Hon. Ms. Joe: I do take my responsibilities very seriously.

The Member talks as if there were no problems under the former government, and that is not the case. We have heard of many. At least we are starting to listen to these people. They feel they can come to us with concerns they have, and they do. We do not ignore those complaints or concerns. If there is something that can be improved, we will look at ways of improving it. That is exactly what we are doing.

Question re: Chilkoot Trail National Historic Park, vehicle access

Mr. Lang: After listening to the Minister responsible for the Public Service Commission I know I will sleep much easier this evening.

I would like to direct a question to the Minister of Renewable Resources. It has been recommended in the management plan for the Chilkoot Trail National Historical Park that there be no provisions for motorized vehicle access in the park. The effect of the decision is that Yukoners will no longer be able to snowmobile in this area. A lot of people do this at certain times of the year.

Can the Minister tell us if his government supports the federal government initiative to stop snowmobiling in this area?

Hon. Mr. Webster: I have not seen a copy of the draft management plan issued by the federal government with respect to the management of Chilkoot Park, and I do not believe our department has made a formal response to it. I will check for the Member and bring that information back with me.

Mr. Lang: I am surprised that the Minister of Renewable Resources has not seen the management plan. It has been out for quite some time. I am further surprised, if I might add, because it has had quite a bit of publicity in recent months. I would have thought the Minister would have taken an interest in a area that is obviously going to affect a lot of Yukoners.

I just have simple question for the Minister: in view of the public representations that have been made, that snowmobiling be permitted in this area, does his government support that request? I do not think I need a review of the plan.

Hon. Mr. Webster: I do need, however, a view of our government’s submission to that management plan; that is what I will consult and bring back the answer to the Member.

Mr. Lang: Is the Minister telling this House that he does not know whether or not they support snowmobiling in this area? He has to check?

Hon. Mr. Webster: That is correct.

Question re: Community and Transportation Services annual report

Mr. Brewster: My question is to the Minister of Community and Transportation Services. Yesterday in this House, the Minister made a ministerial statement regarding the spring clean-up campaign and at the same time tabled a glossy, multicoloured annual report for his department, which you could not even use to light a fire. Could the Minister advise the House if this annual report was printed on recycled paper, and what did it cost to produce this glossy, environmentally-hazardous document?

Hon. Mr. Byblow: I do not believe it was printed on recycled paper, and I can procure the information on costs and provide it to him later.

Mr. Brewster: I note that the text of the annual report was prepared by Jan Staples, and I would like to know if this person is any relation to Lindsay Staples, the former press secretary and chairman of the Yukon Council on the Economy and Environment?

Hon. Mr. Byblow: I cannot believe the question was placed, but it is my information that there is absolutely no relationship, as implied or suggested by the Member.

Mr. Brewster: I thank the Member for his honesty. At least there is some honesty on that side. Is it the intention of the Minister to continue to produce glossy, multicoloured annual reports that are not environmentally friendly?

Hon. Mr. Byblow: I can assure the Member that next year’s annual report will definitely be produced on recycled paper. The Member seems to be raising the question of whether it is a worthy exercise to produce an annual report of a department. In the case of the Department of Community and Transportation Services, I certainly believe it is a worthwhile exercise to communicate to the public the very broad range of responsibilities and services that it provides. The department, by virtue of its broad mandate in a number of areas, reaches the doorstep of every citizen in the Yukon, and I think providing the information of its availability and level of service to those people is a noteworthy communication exercise that should be pursued.

Question re: Community and Transportation Services Annual report

Mr. Devries: I also have a question for the Minister of Community and Transportation Services regarding the annual report.

I would like the Minister to turn to page 4 and 11 and tell me whether he reviewed this publication before it was released, and what he sees wrong with the pictures on pages 4 and 11?

Hon. Mr. Byblow: I can assure the Member that I reviewed the text in a direct form. I did look at the pictures. In terms of a final layout, I did not review it. I did not deal in quite that much detail with the administrative production and proofing of copy. Yes, indeed, I did look over the text of the information and I made sure it was in layman terms, that people understood the information being provided, that it was not overly bureaucratic or academic in wording, that the statistics provided was useful information for the public to know, that the pictures portrayed a broad cross-section of the activity of the department, but in terms of proofing the actual paste-up sheets, no I did not.

Mr. Devries: So the Minister is saying he was aware of the pictures that were in there. There are no hardhats on the workers. The workers are not wearing the proper footwear. Did the Minister read the news release that was released on December 7 by the Minister of Justice, where it says, “To develop a long-term strategy with specific plans to prevent work place injuries and ill health, to increase health and safety education and training for workers and employees, to increase the public awareness of workplace health and safety issues.”

The Minister is grinning but this is her department.

If you look at the picture on page 11, it says, “The government engineers are supervising these workers.” They are supervising workers and teaching them not to wear hardhats and not to wear safety boots. I ask the Minister if his department has a policy of not following occupational health and safety guidelines?

Hon. Mr. Byblow: I would like to point out for the Member that on page 6 the person shown is wearing a hardhat. Certainly the Member is not suggesting that in every instance a picture is taken appropriate attire be constantly worn. The Member knows this government is a leading government in terms of worker protection and worker safety. This government has taken strides that other jurisdictions have not in terms of improving workplace safety and ensuring the legislative base is there to ensure that it is taking place.

Members should visit some highway and work sites and have a first-hand view of the extent to which our employees respect the safe working conditions we subscribe to.

Mr. Devries: I am not arguing whether or not the highway people are wearing their safety equipment. I am arguing about this publication that shows workers working with industrial equipment, who not properly equipped. We are talking about education, but the government is not promoting its own safety guidelines in its own publications. It is not doing a very good job. I am requesting that, from now on, when the Ministers from all departments produce reports, they will assure this House that they will cooperate with the occupational health and safety people in an effort to do their work through the education process, whether it be pictures or whatever. I would also like to give the Minister a copy of this little booklet, in case he has never read it.

Hon. Mr. Byblow: I provided several dozen copies of that book to the steelworkers in Faro just a few weeks ago.

With respect to the Member’s concern about government employees following appropriate safety rules, I can give the Member the undertaking that that will be addressed as necessary. I should point out the very pictures he has pointed out do indicate at least one employee who is not wearing a hardhat who perhaps ought to be. I also note it is a private sector contractor who is doing the work.

That does not excuse the government from ensuring that proper rules are followed. I accept the Member’s suggestions and intent with respect to safety, and I can give him the reassurance that I will address it.

Question re: Child Care Act

Mr. Nordling: There has been considerable concern expressed over the Child Care Act by CYI, child care providers and parents. On March 8, I wrote to the Minister of Health and Human Resources, asking if the government had any plans to amend the Child Care Act when we debated it in Committee of the Whole, and if he would provide copies of proposed amendments.

Since that time, I have had no response to my letter or follow-up phone calls. In order to assist us in preparation to debate the act, I would ask the Minister to respond to my request today.

Hon. Mr. Penikett: The Member mentioned two organizations with respect to his question. The organization or the people representing family day homes have publicly aired some amendments and have found an advocate in this House, in the person of the Member for Porter Creek East, to present their amendments. If it will help the Member, I can be quite clear at this point that, after very careful consideration of the issues raised, both in the long consultation period leading to the drafting of this act, and in the period since its tabling following representations from a number of groups, I can advise the Member that we are not persuaded of the wisdom of the amendments suggested by that group.

Mr. Nordling: That is with respect to family day home operators. I would like to know if the Minister is saying that he has considered the recommendations for change by the parents and CYI and has made the decision to ignore those and that there will be no amendments brought by the government when we begin debate on the Child Care Act.

Hon. Mr. Penikett: We are not ignoring at all the representations made by anybody. Throughout the consultation process, which went on for some time under the leadership of my colleague, the present Minister of Justice, and in numerous meetings since, we have listened to the representations made by all parties and weighed the quality of arguments made by all groups. Great care was taken in considering their representations and the validity of their arguments and the wisdom of the amendments being suggested.

Mr. Nordling: The Minister seems to be avoiding my specific question in talking about the consideration of recommendations by groups. My specific question to the Minister is: will the government be proposing any amendments to the Child Care Act when we begin debating it clause by clause in Committee of the Whole?

This did happen with the Mental Health Act. If it is going to happen with the Child Care Act it would help if we knew what they were in advance.

Hon. Mr. Penikett: I see the Member’s point. There are two things I might say. There may be some arguments made about amendments during the course of the debate that would persuade us to move some amendments during the debate. I hope the Member will understand that I am not in a position to anticipate those. If there is any other amendment that we will present I will give the Member the undertaking that I will present the text of the amendment at the time we open the debate in general debate as I did yesterday with the Mental Health Act and table copies of the proposed amendment at that time.

Question re: Child Care Act

Ms. Kassi: I have a question with respect to the Child Care Act for the Minister of Health and Human Resources. The aboriginal people in the Yukon want safe child care for their children like everybody else. However, the aboriginal people have concerns with respect to self-government and the lack of provisions within the Child Care Act that has been tabled in this House.

The Council for Yukon Indians has asked the Minister of Health and Human Resources for the inclusion of the land claim and self-government agreement clause in the Child Care Act just as it appears in the Education Act. Can the Minister please tell me if just such a clause will be included in the Child Care Act?

Hon. Mr. Penikett: I can say that the Cabinet has met to consider the representation on that point and agreed that language similar to that which is contained in the Education Act today will be used, to make it clear that self-government agreements will supersede our legislation in this area. We are agreeable to doing that and will accordingly, when we come to the general debate on that act, introduce an amendment to do that.

Question re: Mental health facility furnishings

Mr. Lang: The Minister never, never ceases to amaze me. Every day is a new day.

I would like to go back to a topic that we had the opportunity to discuss yesterday. The Minister knew so little about it that he was going to check back with his confreres concerning the fact that he had been part of a committee that had granted $22,000 to the Canadian Mental Health Association, Yukon Division, for the purposes of building furniture for the facility for the mentally ill, which the previous Minister of Health and Human Resources had supported. I had the opportunity to see that furniture today, and I will send a copy of the picture because the Minister does not know very much about it. Half of the furniture is outside in the snow. Well, it is not snowing anymore; it has melted. Half the furniture is inside a building in the YTG compound.

Why did the Minister say yesterday that he had no ministerial responsibility for this expenditure of money, when he granted the $22,000 to the organization? Secondly, he made the decision to put the facility where the house furniture was supposed to be put. He made the decision that that facility was not to go ahead. Thirdly, the furniture was stored in the YTG compound. Could the Minister tell this House why he feels he has no ministerial responsibility, nor accountability, for this kind of expenditure?

Hon. Mr. Penikett: I am somewhat amazed that the Member would ask the question today. I would have thought he would have been so embarrassed by having misled the House with his information yesterday that he would not want to pursue it. The facts are that there were 43 pieces of furniture built following the local employment opportunity program fund. Most of these pieces of furniture - a number of tables, more than 20 tables and bookcases and couch frames and so forth - are stored in a warehouse. He never did mention that, dealing as he does in half-truths or quarter-truths. There were eight wooden bunk frames, which are stored outside and covered by tarpaulins, and one picnic table, which is stored outside.

I do not know where the Member opposite keeps picnic tables, perhaps he keeps them in the living room, but most people keep picnic tables outside, and that is where this one was.

Mr. Lang: That is such a flippant way to deal with the taxpayers’ money. The reality of this situation is that there are bed frames outside in the open. I viewed them today. I do not think the Minister has. I am sure he had a lackey collect this information - he knows so much about his department.

Just so people are aware, yesterday he did not know the $22,000 had been spent on the furniture although it was in the media two weeks ago.

Yesterday, the Minister said he had no ministerial accountability for the furniture. That statement was made yesterday on page 1487. I go back to his statement of yesterday, and ask if he feels he has a responsibility to account to this House for this $22,000 expenditure.

Hon. Mr. Penikett: Of course the government has the responsibility to account for this expenditure, and we do not doubt we have since the contribution award of the Local Employment Opportunities Program was made in the 1987-88 fiscal year. It was awarded from a program of the Department of Economic Development. Because the houses the Mental Health Association hoped to furnish with these materials were not constructed, the material is now stored by Government Services in a supply services warehouse as a courtesy to the group that received the money to build them. In some sense the Department of Government Services is responsible for the storage and the Department of Economic Development provided the money through the local employment opportunities program and, of course, the Department of Health and Human Resources, which I lead, has a continuing association with the Canadian Mental Health Association in meeting its excellent objectives.

Mr. Lang: Obviously the government made the decision that the expenditure of the $22,000 was made on the premise that the home was going to be built so the house furniture could be put into it. I just want to bring to the attention of the House Members that there was a letter sent by the previous Minister of Health and Human Resources to the president of the Canadian Mental Health Association basically giving a letter of commitment and an agreement in principle that such a facility would be built.

In that letter she says, “A final funding commitment cannot be made until the new government takes office. Resourcing for the proposal can be subsequently considered by Management Board. I expect that remaining details regarding the program proposal can be worked out between yourselves and officials in the department.”

In view of the fact that this letter was a commitment from the previous Minister of Health and Human Resources, and in view of the fact there is no mention that there is a federal responsibility for providing for such a program, could the Minister of Health and Human Resources tell us why he reversed the commitment made by the previous Minister to provide such a very much needed facility in this community?

Hon. Mr. Penikett: I am sure the Member is not intentionally misleading the House. I know he would never do that. The Minister’s letter, which I have read, says nothing of the kind. It does not say what he alleges it says. What the Minister’s letter does is offer to provide per diems for our clients who may be in such facilities, something that is our service and our responsibility. It does not offer to provide either the capital or the operation and maintenance.

Let me make perfectly clear that I offered the first time I met the group. That was to provide half the operating costs if the federal government would contribute their share. That was in furtherance of support of the same concept, the concept that was supported by the present Minister of Justice and by all Members of this Cabinet, as well as the different jurisdictions of our government.

Yesterday, I also indicated that the Minister responsible for the Housing Corporation had made certain offers on behalf of that corporation to this group as well. That is a matter of public record.

Question re: Mental health facility

Mr. Lang: Talking about the facility and the reversal in decision the Minister of Health and Human Resources has taken reminds me very much of the mammography issue and what took place there under the capable leadership of his highness. On the capital allocation of funds that the Minister has indicated to the public he is prepared to put forward to the facility, is it not true that 75 percent of those funds are federal funds?

Hon. Mr. Penikett: The Member opposite seems to be trying to cover up as fast as he can, but he cannot. There has been a whole series of misstatements of fact on this question, some which he repeated ad nauseum yesterday. He said we had made no commitment toward the capital of the building; that was wrong. He indicated his belief that, somehow, even though it is a federal jurisdiction, we should be paying the bill; that was notionally and philosophically wrong. He is wrong that we have made no offer in terms of the operations of such a facility; that is wrong. He was wrong about all the furniture being in the snow. We have corrected that today. He is wrong again in saying that I have reversed a decision of my colleague.

Mr. Lang: The largesse of the Minister astounds me. I asked a question.

Does Mr. McDonald want to talk about the Department of Education and its employees? I would ask the Government Leader this: is it not true that 75 percent of this capital expenditure you have so graciously offered on behalf of the Government of Yukon for this facility is federal funds?

Hon. Mr. Penikett: It is true that most of the money spent by the territorial government finds its original source in the federal government the same way that it is true that most of the money spent by municipalities comes from the territorial coffers. But the programs that are under our jurisdiction and that we are delivering are ours to design and implement. The Housing Corporation has a number of agreements with the federal government to provide social housing. Of course, we want to make them available to the citizens of the territory; that is why the programs exist.

Speaker: The time for Question Period has now lapsed. We will now proceed with Orders of the Day.


Withdrawal of Motions from Order Paper

Mr. Phillips: The House Leader requests the unanimous consent of the House for the withdrawal of the following motions from the Order Paper: Numbers 2, 11, 25, 26, 28, 29, 30, 31, 35, 38, 54, 57 and 61.

Speaker: Is there unanimous consent?

All Hon. Members: Agreed.

Speaker: Unanimous consent has been granted. The Chair will order the Clerk to drop the motions that were listed from the Order Paper.

Hon. Mr. McDonald: I move the Speaker do now leave the Chair, and that the House resolve into Committee of the Whole.

Speaker: It has been moved by the hon. Government House Leader that the Speaker do now leave the Chair and that the House resolve into Committee of the Whole.

Motion agreed to

Speaker leaves the Chair


Chair: Committee of the Whole will come to order. We will have a 10 minute recess.


Chair: I call Committee to order.

Bill No. 20 - Mental Health Act

Chair: We are on Bill No. 20, clause 10.

On Clause 10

Hon. Mr. Penikett: I am going to be joined today by advisors Rosemary Seaman and Mr. Steven Horn from the Justice department. I just mention that they are here with me.

Could I just briefly say that, so far, in terms of the use of the word “recently” - this was a question asked by the Member for Porter Creek West - it is not possible yet to establish how many jurisdictions may have used this or where it has been tested but I will continue to take the question as notice and report back. That is as much information as I can get at this point.

Madam Chair, would you wish for me to proceed with the explanation of clause 10 now?

This clause lays out that a person must be taken to a facility or a physician for examination forthwith, which means, effectively, immediately. If the physician or nurse does not believe the individual is mentally ill, he or she must be released immediately. If the individual is judged mentally disordered, then the person can be detained for 24 hours, within which time the situation must be reassessed. A nurse may not give treatment without it being first approved by a physician and telephoned instructions can be appropriate here. The examiner may recommend involuntary psychiatric assessment of the individual if the criteria set up in clause 5, the ones we talked about yesterday - damage to themselves or others - exist. The physician or the nurse must complete the prescribed form, which details the reasons why the individual is believed to be mentally disordered and include the date of examination, the statement that the physician or the nurse personally examined the individual and that there was careful inquiry into the facts of the disorder. As I mentioned, it shall distinguish between the observed behaviour and that afforded by others, such as by the peace officer or a family member who is bringing the person to be examined.

Mr. Lang: I have a concern about something the Minister covered lightly, and that was that a nurse shall not give medical treatment under 10(4) unless the treatment has been approved by a physician. In his dissertation, he indicated that that could be by telephone. Should that not be written in the legislation? It is broad, and I am primarily looking at protection for the nurse who could be in a very difficult situation if they were in Old Crow or Pelly Crossing or some of the other communities that do not have a doctor at their disposal at all times. It would have to be done by telephone, and I think it would be a comfort to the nurse if it was in legislation so it was clear that type of instruction could be given to them.

Hon. Mr. Penikett: It was not deemed necessary to specify that this be done by telephone since that is the norm now. We are getting to the day where there may be fax communications and computer linkups that enable people to get the same kind of information. There are occasions where there may be lay dispensers, who are far less qualified than nurses, who may, by a telephoned instruction from a physician, dispense a medication or a sedative or something to calm someone down.

We are usually talking about a medication here that is not treatment in the sense it is curative, but something that is a temporary application to deal with a situation of someone in extreme excitement or out of control.

Mr. Nordling: Could the Minister explain the use of the word “available”. The last part of clause 10(1) says where a physician is not available, a nurse shall consult with a physician. In that sense, the physician is available, but by telephone or fax to consult. Was it specifically written that way, or was consideration given to wording such as where a physician could not be present or was not presently available?

Hon. Mr. Penikett: The word “available” was used for reasons to deal with a situation where there may be a physician in the community, for example, but who is not accessible or may be otherwise engaged and there may have to be a telephone conversation. There may be a physician physically present in the environs but, because of the nature of the case, perhaps the nurse would have to do a consultation with someone in Whitehorse. That can happen, and that is why that language was chosen.

Mr. Nordling: I do not think it will be a big problem.

Clause 10 agreed to

On Clause 11

Clause 11 agreed to

On Clause 12

Hon. Mr. Penikett: Essentially, clause 12 sets out the requirement for an examination by whom and the time lines for the assessment. It is worth mentioning here that 24 hours is the maximum detention time for the individual to be examined by the two physicians or the physician and psychiatrist. Again it confirms here that if a person is not mentally disordered, they must be released.

Mr. Lang: Maybe the Minister could outline what happens if the 24 hours is passed. Does the process have to begin again or how does it work? There may be a situation where a psychiatrist would not be available for 24 hours and maybe that would be one of the requirements that the other physician would like to have to ensure that second opinion.

Hon. Mr. Penikett: Let me try to explain the situation. This law is more liberal, if I can use that word in its proper context here, than the law in Ontario that says someone must be assessed right away. This law allows, in an extreme situation like a blizzard in Old Crow, or where a community is shut down for six days, six days for transportation of the person to a facility. That would normally be Whitehorse where there are usually two physicians available who can do the examination. There is only 24 hours, and if it is not found that the person has a disorder after that 24 hours, after the travel and 24 hours, then they must be released.

Mr. Lang: After the release takes place, I assume the whole procedure has to start again. Is that what the Minister is telling the House?

Hon. Mr. Penikett: If a person demonstrates the kind of dangerous behavior that would cause them to be apprehended again then, yes, we would begin a new cycle; the whole process starts again. Let us say, for example, they were released here in Whitehorse and demonstrated that behavior in Whitehorse; they would much more quickly be brought in for assessment. If they were returned to their home community then the whole sequence of events would follow again through the same steps.

Mr. Lang: If by chance the 24 hours cannot be met and the individual is met and is from a rural community, in view of clause 11, it would follow that it would be the responsibility of the government to pay their travel expenses back to their community, whether it be Old Crow, Watson Lake or elsewhere?

Hon. Mr. Penikett: That is right.

Mrs. Firth: Could the Minister give us an example of what would happen in this situation: my concern is that in a community a person could be detained. There is no opportunity for physicians to be there or the individual to be moved. Twenty-four hours could go by very quickly. What happens in that kind of circumstance?

Hon. Mr. Penikett: The point is here that this law here is much more liberal than the law in, say, Ontario, which requires a medical examination. This law provides up to six days to get the person to a place where they can be assessed. That would normally be Whitehorse. It would allow a person in Old Crow six days to get to Whitehorse. Let us say that the RCMP or a nurse was bringing the person in, it allows six days to get here, but as soon as they arrive at Whitehorse General Hospital, the 24 hour law is in place and the clock starts ticking.

Mrs. Firth: What happens to that individual when it comes to any kind of treatment being given? Is that carried out by telephone? Can a nurse talk to a doctor over the telephone? The nurse would be in the position of making the diagnosis and providing assistance in the event that the individual had to be given either medication or special treatment.

Hon. Mr. Penikett: I am not sure if I understand your question. The assessment is only for a recommended course of treatment or to establish whether it is needed.

If a person is still in their home community, such as Old Crow, the treatment that will be provided by the nurse will only be perhaps sedation to calm the person down or to transfer them to get assessed. That would only happen if they were demonstrating violent or dangerous behavior to themselves or others. If the person was only demonstrating some delusional tendencies or had stopped feeding or looking after themselves, we would usually try to get the person to voluntarily take some care. These timetables would not operate in that case.

Mrs. Firth: My concern is that the medical personnel have the ability to deal with the situation and that this, in no way, restricts or impedes that ability, which is the assurance I am trying to get from the Minister.

Hon. Mr. Penikett: We will get to a clause of the act later that talks about treatments that are potentially damaging to the person - certain kinds of drug therapy and certain kinds of physical restraints. In some cases, those will have to be reviewed by the board before they will be permitted. In other words, the requirements for the level of consent are much more rigorous than it would be for a temporary sedation, for example.

Mrs. Firth: Perhaps I could talk about a personal experience, things that used to happen. I know I have been out of the medical field for a while, but these situations have happened in the past and I see no reason why they could not happen again. Say in a small community, an individual is extremely violent and has to be restrained, and is restrained either by the peace officer or the peace officer and a nurse. There are various forms of restraint. We do not use straitjackets anymore, but that does not mean there are none around.

If the individual is restrained, can the personnel do that according to this legislation, in order to protect that individual, if they do not have the authority to give medication and have to restrain them in some physical manner?

Hon. Mr. Penikett: We will come to that clause later. Clause 18 deals with restraints and talks about reasonable restraints. It talks about reasonable limits, which is obviously not a straitjacket for someone who is just a bit hyperactive or something. We have not reached that clause yet. Perhaps we could wait until we get to it to deal with that question.

Mr. Nordling: I have a question in this area that relates to the whole act. The scenario I see is that we will be dealing with people in this sort of an instance, perhaps out of Whitehorse where a physician is not available, due to alcoholism. How does treatment for alcoholism relate to this act? We have a definition of mental disorder at the beginning of the act from the uniform Mental Health Act, but how does the Minister see alcoholism fitting into this act and the effects of DTs or the snakes, or whatever a person ends up with?

Hon. Mr. Penikett: Most of what we have been talking about here is where someone is dangerous to themselves or others, in other words cases of involuntary patients. There will be a whole range of mental health problems for which people will voluntarily present themselves, even if it is an alcohol or drug related disorder. The treatment will have to be ultimately approved by a qualified person or persons. In most communities in the Yukon Territory that will require the person to go into Whitehorse at some point to have treatment approved. They may well go back to their community with some prescription drugs, or some therapy that has been recommended for them, and the nurse in that community may be asked to monitor that to see whether the person is taking their pills when they are supposed to, and if they are improving or not.

Regarding the question being asked by Mrs. Firth earlier about treatment - when we are talking about someone who has been apprehended, an involuntary patient - in no proper sense of the word does treatment begin until such time as assessment has been done and a proper plan of treatment has been made by the qualified medical practitioners.

Mr. Nordling: Can the Minister tell me if the effects of drugs and alcohol on a person could bring them within the definition of mental disorder at the beginning of the act?

Hon. Mr. Penikett: It could. I am nervous about making a medical judgment. As a lay person, I know of circumstances where that would be the case, where people are seriously, in my lay terms, evidencing mental disorder as a result of drugs. I have seen people with DTs, but also more obvious cases of people on acid trips or whatever, but in many cases those people will present themselves to a detoxification centre, or to physicians, or public health, or a nursing station. Someone who collapses will have to be treated as a medical emergency. If someone persists in that kind of behaviour and a family member says they are behaving in a manner that is harmful to themselves, then that is evidence of a mental disorder requiring them to have some kind of involuntary care. The symptoms we are talking about have to be caused by the mental disorder, not the reverse.

Mrs. Firth: I am trying to relate the act to circumstances I have knowledge of that have happened here in the Yukon. I know of an instance where a young Indian gentleman was in delirium tremors; he was a heavy drinker; he had stopped drinking, and his actions in the community - I believe it was Lower Post or somewhere that did not have a nurse or doctor. The gentleman became very violent and took an axe and was chasing people with it. He was hurt with it. At that time it was the RCMP who had to restrain this individual.

The concern is that the people who are helping and protecting these people from themselves and the rest of society are not in any way breaking the law because of what this act is saying or doing, and it also applies to medical personnel.

There was a young man once staying in the Whitehorse Westmark with his father. He went into drug withdrawal and picked up a television and threw it across the room. His father was in shock. The police were called, of course, and the young man was brought to the hospital. That action was perhaps not as severe or questionable as the way the police have had to restrain the man coming from Lower Post. We do not want to be putting people in the position where they are reluctant or absolutely not wanting to help this individual because they are concerned they may be breaking the law. I would not like the legislation to give that effect. I would like to get some reassurance that is not going to happen.

Hon. Mr. Penikett: Let us be clear that if someone is apprehended because of the commission of a criminal act, they will not be able to escape the normal course of being charged and so forth by claiming that they are at that moment mentally ill. That may be a defence later on. What we are looking at here is not someone who behaves irrationally in a drug-induced state or while drinking - that probably happens a lot - but when someone without perhaps those obvious inducements goes off the deep end or even has a self-inflicted wound. They may be brought in involuntarily for psychiatric assessment. What this clause of the act talks about is giving sufficient time for the person to travel to Whitehorse, with only 24 hours for the actual assessment, whether there is treatment recommended or not. It is not recommended they will be released and we will pay for that person to return to their community. If treatment is recommended, that would happen.

Mrs. Firth: What happens in the period while transporting them from the community to the major facility in Whitehorse if they have to be restrained or confined? Will it be all right for them to be restrained and confined?

Hon. Mr. Penikett: As I indicated earlier, this is in clause 18, where it talks about the reasonable restraints that can be made.

Mr. Nordling: I think like most things we are going to have to leave it up to the judgment of the doctors and the people doing the treating and that there will not be any abuse. The concern that was brought to me was with respect to alcohol and drug abuse. If someone is in that state where they could be considered to have a mental disorder, they are not someone who would be likely to present themselves for treatment. Then they are restrained and confined and end up being treated. I think it is in clause 21 where they can be given other drugs and treatment so they would go from one state to another without ever coming out of one and never get a chance to understand what is happening to them at any stage of the game.

Hon. Mr. Penikett: Let me submit that this is a big improvement over the existing law. Let us take the extremely unlikely case that someone in Dawson City was on an acid trip and started behaving very wildly in a way that was very threatening to other people. They were apprehended for that purpose by the police, brought before a nurse and the nurse says we better send this person to Whitehorse for psychiatric examination. Even assuming it took a day to travel to Whitehorse and 24 hours for examination here, under this act two physicians would almost certainly establish that the behaviour of this person was drug induced and not a deeply established mental disorder and would probably be released. We would probably incur the cost of shipping him back to Dawson City, assuming he wanted to go.

Clause 12 agreed to

On Clause 13

Hon. Mr. Penikett: In this clause the physicians must deal with the disposition of a person whom they certify as dangerous and they must fill out the necessary certificates. The person again must be judged to fill the criteria of dangerousness, together with a mental disorder; the same conditions apply for police, nurses, doctors and everybody along the way, even the judges. If the person is mentally disordered and dangerous to themselves as well as to others and not suitable for voluntary patient status then the forms will be filled out for involuntary detention, forms will be in regulations and will form part of the patient’s file. The forms will be filed automatically and forthwith with the Mental Health Review Board. If the person is suitable - this usually means, willing, competent and likely to remain so - for voluntary admission, then they would be admitted as a voluntary person.

If the person does not fill the required criteria of dangerous to themselves or others then they must be released. The significant certificates completed under this order must be filed immediately with the person in charge of the hospital and the Mental Health Review Board. That is in general what clause 13 covers.

Mr. Lang: I want to speak a little further about people who have been institutionalized involuntarily.

I asked about the requirement that the board review individual cases. The Minister indicated to me that a maximum of 60 days could go by. Perhaps I have missed it in my reading of the legislation, but could the Minister refer me to the clause it pertains to? I do not recall seeing it.

Hon. Mr. Penikett: The act provides for 21 day renewals and for 60 day period reviews by the Mental Health Review Board. Clause 16, which is the certificate for renewal and will be coming up in a few minutes, talks about the certificates for detention being renewed before each 21 day expiry period. The 60 day review is under the clause referring to the Mental Health Review Board. If we can continue on to the next question, my advisors will find the exact clause.

Mr. Lang: I hope we can find it, because I am concerned about that. I understand the 21 day certificate, but there is a time when an individual is to the stage where they are institutionalized. It has to be stated in here somewhere that it has to be brought back and reviewed so there is some indication that their case is always under advisement. It is not in here.

Hon. Mr. Penikett: When we get to the clause on the 21 days, I think the Member will see that the physician has to fill out a certificate for renewal of the detention order before the 21 days are up. If the person is in an institution, the Mental Health Review Board has to do periodic review, as I talked about.

Mr. Lang: Can the Minister expand a little further on clause 13(7)? I notice they use 21 days. Is that common across the country?

Hon. Mr. Penikett: It is an emerging national standard.

Clause 13 agreed to

On Clause 14

Hon. Mr. Penikett: Clause 14 says a treatment plan must be prepared within 120 hours and consultation leads us to believe this is a reasonable length of time that allows for consultation between physicians to arrive at an appropriate plan.

Mr. Lang: I am not familiar with this area. I am assuming the treatment plan is between the individual in question and the doctor. Does this treatment plan or a copy of this plan have to go before the board?

Hon. Mr. Penikett: It will be filed with the board because there may be some appeal or some discussion about it later. There will be confidential records filed with the board.

Mrs. Firth: Then the board is going to have access to every involuntary psychiatric patient’s treatment, medications and everything? Is that what the Minister is saying?

Hon. Mr. Penikett: Yes, this is for the protection of the patient because of the history in this country of involuntary mental patients having treatment in hospitals where there has not been any mandatory review provided for. This provides for a review by a quasi judicial body which includes both doctors and lawyers and a periodic review by the patient. The patient has the right of access to the files. The only limitation provided for under this act is if a person, say an administrator in the hospital or someone who is involved in the care, believes that giving them access to their file would be damaging to their self-esteem or contrary to their treatment or their recovery. Then they can apply to the review board to have that withheld, but there must be a hearing.

Mrs. Firth: My concern is that the members of the board have so much information. Is the concern here really that people are being locked up involuntarily and kept there forever? Would the board not be able to make that assessment if the person was still there after an undue amount of time? Why do they have to have access to all that confidential treatment and medication and whatever is going on between the patient and the doctor? Where is the patient/doctor confidentiality here? There is none; it is all available to the board.

Hon. Mr. Penikett: We are talking about patients here who, in the previous legal regimes in Canada, in some sense have lost their civil rights. Most people, when they are proceeding to any kind of medical treatment, are assumed to have given informed consent whether it be for heart surgery or whatever. But mental patients have been in a very different situation. It has been traditionally judged that they are not capable of making some of these decisions themselves. Current thinking in the profession has been that, just because a person is disordered, their judgment in all respects may not be impaired and they may be able to give some kinds of consent.

Having doctors and lawyers on the Mental Health Review Board - and there will be two of each - provides people who used to dealing with confidential matters and will be able to make appropriate judgments upon appeal by a patient or other person as to whether the plan is appropriate to the kind of problem the person has and whether they should remain in an institution and whether certain kinds of treatments, especially radical treatments, are justified.

Mrs. Firth: Is that not something the board could request in the event there was an unduly long involuntary stay? The government is talking about the loss of the civil rights of a few people. In order to compensate for that, we have completely taken away the privacy and relationship between a patient and a doctor from all involuntary admissions. Personally, I find that a bit extreme. There may be some reasonable explanation for that, but I find it an extreme step to take. There still is some merit to the concept of patient/doctor relationships, and privacy and confidentiality.

Hon. Mr. Penikett: The Member is quite right. We should not assume that all the members of the Mental Health Review Board will be reading all the files. There may be panels of a small minority of the board sitting on any matter.

Let us understand what the Mental Health Review Board is replacing. It is replacing a highly public, highly adversarial, very emotional, very painful court process. Every jurisdiction in Canada - and we are the last jurisdiction that does it that way - believes the kind of proceedings before a Mental Health Review Board with a mix of competent professionals, of lawyers, doctors and caring, disinterested members of the general public, are best able to do justice to someone who, it has been deemed, they being involuntary patients, is not capable of making decisions themselves. It provides some kind of what medical professions would call, in a different context, a peer review, and it provides some kind of objective and disinterested review of the treatments.

Treatments in this field are of great consequence to people’s lives. It is not an exaggeration to say that people have been incarcerated for years. There was a day and age, long before the Member and I were adults, when prefrontal lobotomies were standard procedures - very radical, very final, irreversible, and often done without any kind of consent by the patients. It is interesting reading the history of that procedure. For example, it went from being an experiment to a widely used thing in a very short space of time. Only subsequently did the research indicate it was of extremely questionable value.

Having this kind of review is an important feature in terms of the treatment and rights of mental patients, especially involuntary patients. We believe that having a Mental Health Review Board is a much better process than the court-based system we now have. I know people who have been JPs in the Yukon and have sat on these matters and felt extremely uncomfortable dealing with these kind of questions, because they did not feel comfortable making those kind of judgments sitting by themselves. Everyone we talked to feels much more comfortable having qualified medical professionals, as well as competent lawyers, sitting together on a panel to deal with some of these questions of rights. The cases may not be great in number, but many of them are very complex and difficult to do justice to.

Chair: Pursuant to an informal agreement the Committee will now take a break.


Chair: I will call Committee back to order.

Hon. Mr. Penikett: Just before continuing I should try to clear up some confusion I may have created. When I was talking about the 60 day review and the 30 day review, I was getting myself confused between the old act and the new act. Another piece of legislation we are bringing here is to do with the handling of estates of people; it has a 60 day review period. The review periods for this act are 21 days in every case. So it is 21 days in terms of the doctor having to fill a certificate and to have the review in front of the board. I am sorry for the confusion but I was getting two other acts confused with this one.

Mr. Lang: I did not understand. Obviously there was confusion because I could not understand where he got the 60 days because I was positive I had not read it.

My question has to do with those in the unfortunate situation of being institutionalized outside of the Yukon. Our legislation says 21 days. Are the laws in British Columbia and Alberta where these people take up residence similar?

Hon. Mr. Penikett: There will be negotiated agreements between jurisdictions, but the basic rule applies that if it is our patient having treatment approved by our Mental Health Review Board, they will continue to do the reviews of our patient in an outside institution. If we have a case where someone actually changes their residence - if the family moves - then they will be subject to the laws of the jurisdiction in which they are then resident.

Mr. Lang: What is the process now? Is there any review at all for those outside the territory?

Hon. Mr. Penikett: Until 1984 there was no review at all. The act now provides for a 60 day review - that is, the law that now operates. The only place where the 60 day review continues to exist in this act is in clause 46, which talks about the handling of estates.

Mr. Lang: Obviously, with the shortening of the time period and other things being requested in this act there will be a certain requirement for follow up and administration. What does the Minister see as far as the cost of administration for the act in view of what is being asked for by the Legislature?

Hon. Mr. Penikett: I take that question as notice. We have some provision now for the Mental Health Review Board and do not know exactly when this legislation is going to pass so it will be proclaimed when the new act is in place. It is assumed that the new Mental Health Review Board will be busier than the old one and I do not know yet if extra money would be required in this budget year for that process. In any case, while we know there will be an increase in activity, it is quite difficult to predict accurately what it will be. We talked about nine or so patients who are now institutionalized outside the territory; there may be some matters which are dealt with quite quickly.

I am trying to remember how many cases have come before me as Minister. It is probably two or three or four per month, but many of them are discharges where people come in for a very short period of time and are in and out of treatment.

Mr. Lang: It sounds to me like this board is going to have to be sitting on a very regular basis, especially with the mandatory 21 day review. The board is going to have to do the review and therefore meet a minimum of once every 21 days for each patient. If those patients are admitted at various times, it may be even more than once in every 21 day period. Is that not correct?

Hon. Mr. Penikett: They could meet every 21 days but yes, they will meet that frequently and there will be costs associated with that.

Mrs. Firth: Just before we clear clause 14, dealing with the treatment plan, I would just like to say for the record that I would have preferred to see the privacy and confidentiality of the clients with their physicians maintained a little more. I appreciate what the Minister was saying about the way things used to be but I think we have made some progress in the treatment of the mentally ill. I do not think my position is unreasonable. I do not want to debate it for a long time but I think there are enough safeguards so that the involuntary admission does have some protection so that they cannot be locked up and the key thrown away.

I think people would find more objection to the fact that their records would be considered public to the Mental Health Review Board. I think most people feel very private about that and I think if we took a poll in this Legislature most of us would express that kind of an opinion.

I appreciate the protections that are there for the individual but I think there are grounds for there being some protection for the privacy of the other individuals who have not been abused in this sense.

Hon. Mr. Penikett: I respect the Member’s point. I think it is certainly our view that the Mental Health Review Board would only see such information as they require to make a determination on the matter before them. Of course, most members of the body are people who are, in their professional lives, dealing with such matters every day and are professionally under such constraints. Yes, we would obviously want to make sure that the privacy of the patient can be respected as much as possible.

Clause 14 agreed to

On Clause 15

Hon. Mr. Penikett: Clause 15 is very straightforward. The court must be notified when a person who has been detained under a judge’s order is released.

Mrs. Firth: How does that notification have to be given? Does it have to be given in writing or would a telephone call be sufficient?

Hon. Mr. Penikett: One of the forms that will be part of the regulations of this act will be a form that the hospital will complete to provide to the court.

Clause 15 agreed to

On Clause 16

Hon. Mr. Penikett: We talked about clause 16(1) very briefly. Just let me mention that the clause corresponds to and is based on the uniform Mental Health Act, clause 14, which I have mentioned. I have also mentioned that the certificates for detention may be renewed before the 21 day expiry period if the patient falls within the criteria used for the initial admission: that they are a danger to themselves and others. This is the same information as required in, I think, clause 13(5). The physicians have to fill out renewal certificates and file them with the hospital and the Mental Health Review Board. The renewals are for 21 days. There is no limitation on the number of renewals but the same criteria must always be present.

Mr. Lang: I just want to follow this a little further. Did the Minister tell us that in the Province of Alberta and the Province of British Columbia it is 21 days? Is that all they have: a certificate of renewal, similar to what we are recommending here? I am going back to my earlier questions, as far as the reviews of those who are in the unfortunate situation where they are in institutions.

Hon. Mr. Penikett: I will have to check as to exactly what the number of days are that is permissible in British Columbia and Alberta. I will get back to the Member with that information. I do not want to give him the wrong information but I do not have that information right with me.

Mr. Lang: The reason I am asking is primarily from that point of view. I think it would be to everybody’s advantage to have some consistency between ourselves, as a jurisdiction, and the Provinces of British Columbia and Alberta. I am primarily thinking of those institutions because with that review process, if all of a sudden we have our own form and everything else, and if it turns into another piece of paper and all the other various things that go along with it, unfortunately those things can slip by and then we might find we are perhaps breaching the law. That would be my concern, as well, to complement the system that they have in place.

Hon. Mr. Penikett: It is for exactly that reason that we based it on the uniform law recommendations. There is a tendency in the country in this field to converge toward the uniform law standard. I do not know if Alberta and Saskatchewan have done that or are contemplating doing that, but those are not the only places where patients have been destined. There is also a patient in Saskatchewan, and there are some highly specialized facilities in the large cities in the east where people are occasionally destined.

A number of jurisdictions have recently changed their laws in this field. I think Ontario and Manitoba are among them. The uniform law model is considered the new standard.

Clause 16 agreed to

On Clause 17

Hon. Mr. Penikett: This describes the situation where we can have a change of status from involuntary to voluntary patient. That change can occur through the expiry of a certificate or by a change in the physician’s belief that a patient no longer qualifies under clause 13(1), involuntary patient, but does qualify under clause 13(2) as a voluntary patient. Where a person’s status has changed, the person must be promptly informed by a person in charge of the hospital because a voluntary patient can release themselves entirely on their own decision.

Mrs. Firth: I need some clarification on the voluntary/involuntary patient issue. According to previous clauses we have discussed, a patient can voluntarily be admitted. If a patient’s status is changed from involuntary to voluntary, and if a doctor says the patient may be discharged, but the patient does not want to go, is the doctor then in any way breaking the law? It seemed to me that, in the previous clauses we discussed, the decision was almost left to the client as to whether they continued to consider themselves to be a voluntary admission.

I want to make sure the doctor is in no way being put in a difficult situation and that they still have the ability to say to the patient, “You no longer require medical help and we are now discharging you.” That is a common thing that happens with people who are admitted with mental illness: that reluctance to go home and a fear of going home and being alone.

Hon. Mr. Penikett: I do not think there is any liability for the doctor here. What happens, according to the treatment plan, is that the attending physicians decide at some point that the patient is doing well, they are no longer dangerous to themselves or others, more counselling could be done with them and they could stay for a few weeks, or if they wish - because that is their right now once their status changes - they can leave. The patient will have a right to decide at that point.

Clause 17 agreed to

On Clause 18

Hon. Mr. Penikett: We began to discuss this earlier in response to Mrs. Firth’s questions. The rule here is where restraint is necessary to protect a patient or the staff, it is permissible, but the restraint must be by the least force available, mechanical or chemical, and must be reasonable. If restraint is used, the method and length of time, and if chemicals are used, the dosage and manner of administration, must be recorded on the file of the patient. We know that restraints will be used by hospitals to protect the staff as well as the patient. This section simply ensures that records are kept so they can be examined at a later date.

Mrs. Firth: The terminology is subject to interpretation by individuals. I know it is standard practice for nurses and doctors to record these kind of things. Is this something the RCMP do automatically or are they going to have to be given this information? Quite often it is the RCMP who are restraining people. Is it a practice of theirs to make a documented record automatically, or is this information they will have to be given?

Hon. Mr. Penikett: I think it is standard procedure for most professionals in this field to have some kind of record of what they are doing about which inquiries can be made later. In the case of restraints that may be used for mental patients, it requires they be recorded, and if there is a need for the Mental Health Review Board to examine it, they can.

Mr. Lang: What does the Minister mean by mechanical means?

Hon. Mr. Penikett: Straitjackets, wrist restraints, and locking a person in a secure room; a number of things like that constitute mechanical restraints.

Clause 18 agreed to

On Clause 19

Hon. Mr. Penikett: This is the beginning of part 4, which deals with the treatment of patients and the beginning of the section on the competence to consent. In order to be considered competent to consent, the individual must be able to understand their condition, the type and purpose of the treatment, and any risks involved in taking or not taking the treatment.

In this case, the person is only being judged on their competence to agree to the treatment, not to any other aspect of their lives, such as to manage their financial affairs, or so forth.

We have used the case of extreme measures before but, at the adjournment, Mrs. Firth and I were talking about it. There were some disturbing events recently in the case of the Clarke Institute, where patients were subject to psychedelic drug experiments, without their consent. There has been shock therapy, which has been a controversial treatment procedure in some places. There are a lot of issues here that have been subject to some public debate in this country in the past few years.

Mrs. Firth: Again, this is open to an individual’s interpretation, one who would presumably be giving care or treatment. Quite often, I found it was difficult at times to make an assessment as to whether someone really understood what you were telling them was going to happen to them. Quite often, you would tell people what was going to happen, and they would nod and say, yes, they understood but then the doctor came in and they told the doctor this strange thing happened to them and they had no idea why it happened. It becomes a very subjective clause when you say that someone is going to make an assessment about a person’s mental competency to consent to treatment. Could the Minister give us further explanation with respect to this clause?

Hon. Mr. Penikett: We are going to go through this later, but what the Member says is quite right. By tradition in our society, there is much respect and regard and reverence for the healing professions. It is a trust relationship. A surgeon may say to someone that there is only a 50 percent chance that this procedure will work or you will come out of it, and people will put their faith in physicians.

As these are the same kinds of expectations a patient would have in terms of a physical or surgical procedure, this creates an obligation on the care givers to say they are satisfied that the patient understands what is being proposed. If they do not, there are other clauses following here that find someone to give consent for them.

Mrs. Firth: Even when you are explaining regular medical physical procedures, quite often people who are considered to be of sound mind have difficulty understanding them and, yet, will nod that they do understand. It becomes quite a bit more complicated, when someone is mentally ill, trying to make an assessment as to actually how much they do understand. That is my concern.

Hon. Mr. Penikett: Of course there is the possibility for error but it must be noted that doctors now are legally obliged, and have to be sure, in law, as to the nature of consent for any kind of procedure. It is not so much the case in this country but it certainly is in the states. There is a lot of litigation about this.

Mrs. Firth: That is exactly my concern. It puts the individual at risk who is making the subjective decision as to whether the person understood or not. I guess I am looking for some reassurance from the Minister that the way this new act has been written is not making it any worse than it already is.

Hon. Mr. Penikett: Again, the inspiration for this clause is the uniform law principles that we have borrowed from extensively in this legislation.

Mr. Lang: The Minister has referred a number of times to uniform law. What jurisdictions have accepted the uniform law recommendations and made amendments to their legislation to reflect it?

Hon. Mr. Penikett: I will try to give a more precise answer to this but I am informed that most jurisdictions are looking at the uniform law recommendations right now. They either are considering them or acting on them, but if the Member will permit me, I will take that question as notice and come up with a more precise answer.

Clause 19 agreed to

On Clause 20

Hon. Mr. Penikett: A person cannot be treated who is not competent to consent to the treatment except in an emergency situation. This clause sets up the process the physician must follow when the physician believes the patient is not competent to consent. A certificate has to be filled out, which contains reasons why the person is believed to be incompetent. A copy of the certificate and the written notice of the right to review must be given to the patient. If the patient requests a review - that is, if the patient says “I have a problem with your judgment about my competence and I want this reviewed” - then no treatment can be given or any other action taken until after the review.

Clause 20 agreed to

On Clause 21

Hon. Mr. Penikett: Clause 21 is very important in terms of the rights of the patients. It makes clear that no patient can be treated without some competent individual giving permission, or in some cases the Mental Health Review Board giving permission for treatment, except in the case of emergency. This section is the key to the principles embodied in this legislation.

Clause 21(1) explains that a voluntary patient may not be given treatment without the consent being given for that treatment. If the patient is competent, then the patient must consent for the treatment to take place. If he or she does not consent, then no other consent is valid. So if you are a voluntary patient, you, and you alone, decide whether you can have some treatment.

If the patient is not competent and another person has been appointed to speak for him or her, that individual must consent to the treatment or no other consent is valid.

If there is no other person to speak for the patient, then the Mental Health Review Board may consent or deny treatment on behalf of the patient. It must be stressed that at present, once an individual has voluntarily admitted themselves to hospital, there are no further consents required. This act changes this situation. The act of admitting one’s self to a hospital is not sufficient within this act to allow changing treatment without consent of a competent individual, or as a last resort, the Mental Health Review Board.

Perhaps I will just leave it at that at this point.

Mrs. Firth: Perhaps we could deal with clause 21(1) first, the voluntary patient. I find it interesting that it would say the consent of the patient if the patient is competent to consent. Can the Minister give me an example where a patient would be a voluntary patient but not competent to consent to a form of treatment?

Hon. Mr. Penikett: It is occasionally the case that someone may be a voluntary patient then subsequently becomes incompetent. There may be a judgment that they are no longer competent to make decisions about their treatment.

Mrs. Firth: Like what?

Hon. Mr. Penikett: If someone becomes completely catatonic and can no longer communicate, in which case there will have to be someone else who will have to provide consent for them, according to the hierarchy laid down here.

Mrs. Firth: What happens then is that the voluntary patient does not become an involuntary patient if they become incompetent. There seems to be something missing there.

Hon. Mr. Penikett: They have voluntarily submitted themselves to treatment. I am not a professional, so forgive me if I err, but say they have a condition that may be diagnosed as schizophrenia. The condition deteriorates to the point where they - and this happens occasionally - no longer communicate at all. They cannot be deemed to have given consent in that situation so a guardian, lawyer, relative, or whoever, will have to consent if there is not some new form of treatment or some change in the treatment required - some new consent would be required.

Mrs. Firth: What kind of protection is there for that voluntary patient who becomes incompetent when it comes to the length of time they may be confined and medicated, because voluntary patients do not go to the Mental Health Review Board, do they?

Hon. Mr. Penikett: They will have more protection than they do now because before the treatment can proceed someone has to consent to it - them or the guardian. If they are in an outside institution, and the psychiatrist wants to do, just for the sake of argument, some treatment about which the guardian has great reservations - a drug therapy or something - that might be an appeal, then, to the Mental Health Review Board to consider the case and to see what is indicated.

Mrs. Firth: I am just trying to get an understanding of this and I think that using examples seems to be the best way. Say we have an individual who is admitted as a voluntary patient or client. That person’s case is not going to be reviewed by the Mental Health Review Board because they were voluntarily admitted, not involuntarily. So, if they get into such a state that they are catatonic or considered incompetent, is it their doctor who makes the decision with respect to the kind of treatment that they are going to have? Does the doctor ask permission either of a relative, who could object to that kind of treatment and who would then take it for the authorization of the review board? Would it then be the board that would decide whether or not that person gets that treatment?

Hon. Mr. Penikett: In the simplest case, someone who is voluntary is presented with a treatment plan developed for maybe three months. In that time and in the period immediately following, their condition deteriorates to the point where they can no longer consent. They have a guardian appointed. A new treatment is proposed. If the guardian says, “no, I will not consent and grant this patient that treatment”, then that is it, the treatment will not be provided. There may be a case, however, where there is a dispute about the nature of the treatment, which would be reviewed.

Mrs. Firth: I guess that raises another concern, in the sense that I still do not see how the voluntary patient’s case would be reviewed. If that is the case, the way the Minister has described it, where the guardian can cut off the treatment, or the patient can actually cut off the treatment if they refuse to take a medication or something, and their condition can progressively get work, it makes it very difficult to treat that individual. Is the Minister saying that we just kind of go around in this circle and hope it all works out?

Hon. Mr. Penikett: We understand that consent is difficult. It raises problems, but it is an extremely important ethical principle that a person who is being treated, subject to whatever procedures, has to consent or have someone consent for them.

In a case where it might go to the Mental Health Review Board, let us say the Member was so unfortunate as to fall into this situation and be hospitalized and deteriorated to the point where she could no longer consent. Let us assume she had two sisters. One wanted to agree to the treatment, the other one did not, and it has not been clearly established who was the guardian. That might be a matter to be reviewed by the Mental Health Review Board to decide, on the basis of the doctor’s recommendations, to see what would be indicated for the patient.

Mrs. Firth: In the event the horrible stepsister agreed to the treatment and continued to agree to it, how long can that go on? The voluntary patient is never reviewed by the Mental Health Review Board.

Hon. Mr. Penikett: If there is a guardian, until the person is judged to be competent and healthy, that person retains that status as the guardian of the patient.

Mr. Lang: In clause 21(1)(a), you have a situation where the patient is voluntary and there is no requirement to report to the board, yet the patient is incompetent. At that stage, would it not be to the individual’s best advantage to be considered as an involuntary patient? Then, everything else kicks in: the requirement for the reviews and everything else.

Hon. Mr. Penikett: In here, the process for which you become an involuntary patient is extremely limited. It is physical danger to yourself or to others. Those are the categories; those are the tests. While a person is in care in an institution and their competency comes into question, they do not then become an involuntary patient. It is just that they may have to have someone act for them in terms of giving informed consent.

Mrs. Firth: They can be injurious to themselves, whether they are competent or not.

Hon. Mr. Penikett: If someone is questioning their judgment, or arguing that they have become self-destructive, that is a point that will have to ultimately be reviewed.

Mr. Lang: Just to go into the question of how an individual can substitute consent and who has that substitute consent. You put it down in order; the court may appoint a guardian, then after that it is in the following order - I gather the various other categories outlined are not appointed by the court. The next one in line is the person living in a conjugal relationship, then the child of the patient, brother or sister and next of kin. Am I correct on that?

Hon. Mr. Penikett: I think the Member is leaping ahead into clause 22 where that is laid out, but that is the list of people who can provide substitute consent. Yes.

Mr. Lang: My point in referring to clause 22 in reference to substitute consent is to ask the question about who is going to make that very important decision. You earlier outlined the case of the two sisters. I am just wondering if it is not in everybody’s best interest, when we get in this type of situation, that the court be the final one to appoint those who can act as substitutes and give consent. I hope I am not asking too much. You could be in a family situation where you may have individuals who have far different perspectives about the individual in custody.

Hon. Mr. Penikett: The court may get involved. Let us say that the case involves a child and the two parents are in dispute as to what is the right treatment for the person. It does happen occasionally in law. The assumption is, in most cases, such as with a child, someone will be recognized as being able to give consent: the parents, a parent, an older brother or sister and that there will not be a need to go to court to establish who will do that. It may often be the case that it is an adult person having to give consent for an older member of their family - perhaps their parents. That occasionally happens such as in the case of Alzheimer’s. It is usually quite clear as to whether it is the older child, or whatever the sequence is, who is available to give consent.

I apologize to Members. I have just been handed a note requiring me to leave the floor for a while. Could we have a recess?

Chair: We will have a break.


Hon. Mr. Penikett: In clause 21(2), involuntary patient is covered in the same manner as voluntary patient. Therefore, no involuntary patient may be treated without an appropriate consent. However, the Mental Health Review Board may consent in the case of a patient’s refusal if the patient is subject to clause 23 of this act, which is a case of compulsory treatment.

Mr. Lang: Clause 21(4) is a fairly significant clause. Perhaps the Minister can speak to it a little further.

Hon. Mr. Penikett: Basically, this elaborates on what I mentioned. There are certain kinds of radical procedures that are either potentially damaging or irreversible and which are so profound in their applications they require the consent of the board to deal with them. Among them is the one we discussed earlier with the Member for Riverdale South, a procedure that may involve a surgical procedure on the brain, or a long term chemotherapy regime, or some other radical and perhaps irreversible procedure.

Mr. Lang: It really concerns me when I read of a procedure that by direct access to the brain, destroys the normal connections of the brain. This is a fairly significant statement to make in legislation. To permit this type of experimentation, is what you would call it, by substitute consent or by consent of the individual - I question what we are doing.

Hon. Mr. Penikett: Let me make this clear. We do not do this in the Yukon. We regard this as such a serious procedure that this procedure, under this clause, cannot be done simply with a patient’s consent or that of the guardian. The Mental Health Review Board also has to consent to such a radical, irreversible procedure. It is extra protection for the patient to protect against the circumstance such as happened in the Clarke Institute recently to some of the patients, some of whom were from British Columbia, Manitoba and elsewhere. This is extra protection for these radical procedures that not only must the patient or guardian consent but, also, the board must consent as well.

Mr. Lang: My concern is for the way the legislation is written. The way I read this legislation, if I am seen as competent, as a voluntary or involuntary patient, it does not have to go to the board. They can begin doing this kind of treatment. It says that if a patient, whether voluntary or involuntary, is not competent to consent to treatment, and subsequent consent is given on behalf of the patient, the consent of the board shall also be required for any of the following forms of treatment.

Where is the clause that says that, although I may be competent, but because of the seriousness of these type of procedures it has to go to the board?

Hon. Mr. Penikett: If a patient refuses consent to this kind of procedure, it cannot be done. If a patient agrees, it still cannot be done without the consent of the board.

Mr. Lang: Perhaps I am reading this improperly. This says if I am not competent. What if I am competent? Where does it say in this legislation that, even if I am competent, to take this treatment requires my consent as well as that of the board?

Hon. Mr. Penikett: It says it right in the clause. It says where a patient, whether voluntary or involuntary, is not competent to consent to treatment, and subsequent consent is given on behalf of the patient, the consent of the board shall also be required for any of the following forms of treatment for the purpose of treating mental illness. That is in subclause (4). If you look at subclause (5), it says “notwithstanding anything in this section, no patient, whether voluntary or involuntary, shall without the consent or subsequent consent of the patient and the consent of the board be given any of the following forms of treatment for the purpose of treating a mental disorder: (a) procedure that by direct access to the brain removes, destroys or interrupts normal connections to the brain; or (b) a form of treatment designated in the regulations.”

Mr. Lang: I appreciate the Minister pointing that out to me.

Are we still actually doing procedures today that medically give direct access to the brain so that normal connections in the brain are destroyed? Is that what we are doing? If not, I would ask why it is in the legislation.

Hon. Mr. Penikett: In some centres, yes, that is still going on.

Mrs. Firth: Are we talking about lobotomies? Is that what the Minister is referring to?

Hon. Mr. Penikett: That is one kind of procedure. Another one is extreme drug therapy such as what took place at the Clarke Institute. There are some forms of shock therapy still done that are controversial and are among the things that we would be concerned about. Prefrontal lobotomies are the ones most commonly known, but any procedure that involves cutting into the brain is considered so radical and so consequential here that it not only has to be approved by normal consent but additional consent must also be given by the board.

Mrs. Firth: Then where it says “a procedure that by direct access...” must mean frontal lobotomies. If it is direct access to the brain, I cannot think of any other type. If this is the case, can the Minister give us some examples? Where is this happening and how many instances are there of it?

Hon. Mr. Penikett: I can get some descriptions of the other medical procedures. Lobotomies are not the only ones as I understand it. The point of this clause is to make it clear - and the Member raised the problems around understanding the form of consent - that we are not proposing that this be done but in fact we are trying to put an extra prohibition against this procedure being done by requiring not only the consent of the patient but also the consent of the board, because we view the potential for such treatments with great concern. We are not making the case that procedures are going on in the Yukon or that there are Yukon patients presently receiving such treatments. Because such procedures are irreversible or quite damaging,  they must also be reviewed by the board for the protection of the patient. That is all.

Mr. Lang: The question that is being put to the Legislature is a little deeper than what the Minister just said. He is talking about the process and how wonderful it is to be protected through the process, but he is also asking us to agree to the principle that it can be done. When we agree to this clause we are agreeing this type of procedure can take place if certain things are done. I am not convinced that I want to agree to a procedure that by direct access to the brain destroys the normal connections to the brain unless I know more about what we are speaking.

The Minister seems to think my questions are frivolous observation. I want to ask the Minister what cases are we in where we are destroying portions of the brain because of procedures instituted for people who are mentally ill?

Hon. Mr. Penikett: With respect, I think the Member has it completely backwards. If this section were not here, such procedures could theoretically take place simply with the consent of the patient. That is the legal situation now. In fact, once somebody enters the hospital under the present law, it could happen without their consent. What we are doing is putting two extra barriers up against this type of procedure: one, we are requiring - what the law does not now - that a patient has to consent to it; two, in addition to the patient having to consent to it, or the patient’s guardian or representative, the Mental Health Review Board has to approve it. It is an extra protection for the patient against such procedures, which do exist in the world and have been done to patients in this country in relatively recent times.

Mr. Lang: I understand what the Minister is getting at, and I understand the procedure and why it is there. What the Minister is saying is that if it is silent then the medical fraternity could do what it wanted, when they wanted, and how they wanted. I have problems agreeing. I can understand the interrupting of the normal connections in the brain, but I have problems with the word destroy.

Hon. Mr. Penikett: I am not a doctor, but I do know of cases where there may be a cancer or tumor on the brain that may be affecting someone’s behaviour, and there may be times when they are removed. Essentially, part of the brain has to be cut out. That may be a procedure done for the survival of the patient. What we are saying is that when that is done in the case of a mental patient you have to have, not only the consent of the patient, but also the consent of the Mental Health Review Board.

Mrs. Firth: What does (4)(c) and (5)(b) mean, “a form of treatment designated in the regulations”? What are those going to be?

Hon. Mr. Penikett: Technology has perverse applications. Nobody would have imagined that, 10 years before they came into effect, frontal lobotomies would become the norm. A generation ago, people would not have known that patients in a reputable psychiatric institute in this country could be subject to LSD experiments, or sleep deprivation experiments, or radical drug therapies. This provides for the ability of the government in the future to add to the list of procedures new innovative and radical procedures about which there are concerns or controversy. They can add them to the list and, by regulation, ask for the extra protection of a review by the board of some such procedures that we, as yet, know nothing about.

Mrs. Firth: In the same vein, “a form of treatment designated in the regulations” is a pretty general statement. We do not have the regulations. I cannot see what it is. It could be anything. There could be some restrictions or limitations put on medical practitioners and their patients as to what kinds of treatments they could receive without permission of the board, even in the case of voluntary patients. The doctor could be prescribing something, and we do not know what is going to be limited or restricted. Yet, it is going to require the consent of the board. It is difficult to agree to something when we have no idea what this list is going to include.

Hon. Mr. Penikett: I take the Member’s point. This section is trying to err on the side of the rights and protection of the mental patient. It is trying to say that procedures we now know are radical, irreversible and, in some cases, dangerous to the patient, cannot happen without the consent of both the patient and the patient’s guardian, as well as the board.

There may be some procedures that are now being experimented with about which there is little public knowledge and no literature at the moment that may be identified in the next few months. This provides for the possibility, by regulation, to add to the list, not to impair the treatment of the patient, but to ensure that, in addition to the patient’s consent, there may be a consent by the board.

The government is not going to frivolously add to the list, because we have no interest in doing so. The only interest in doing so is to make sure there is no unwitting harm done to patients, who may be Yukoners being treated outside of our borders and with whom, as a matter of policy, we have great concern.

Clause 21 agreed to

On Clause 22

Hon. Mr. Penikett: This refers to a procedure whereby consent may be given on behalf of a patient who is not mentally competent. This clause provides a priorized list of persons who may give such consent if there is no guardian or appointed substitute decision maker. The list then continues with the various relatives of the patient. A person seeking to exercise the authority to make decisions on behalf of the patient other than a court-appointed guardian must make a written statement certifying his or her relationship to the patient and indicating that the person has, firstly, been in personal contact with the patient over the preceding 12 month period, and secondly, is willing to assume responsibility for making the decision and, thirdly, knows of no conflict or objection from any other person on the list who has an equal or higher right to make the decision.

Clause 22 agreed to

On Clause 23

Hon. Mr. Penikett: This clause authorizes an emergency treatment to save the life, limbs or organs of the patient. Some individuals have asked why mental health treatment is not considered as life threatening and cannot be administered in an emergency. However, this whole act is built on the premise that no one should be subjected to treatment for a mental illness without valid consent. Therefore, to allow for an emergency intervention for a mental illness would invalidate the act. The Yukon Medical Association, I should point out, stated that they had no problems with this dimension of the act.

Clause 23 agreed to

On Clause 24

Hon. Mr. Penikett: This section simply states that if a patient’s treatment is not available in the Yukon they may be transferred to a hospital in another jurisdiction where appropriate treatment is available. In this section the process for that transfer, for gaining approval of the review board and for any appeals by the individuals or their representatives, is described. Specifically clause 24(4) guarantees that the individual’s Yukon physician  will continue to oversee the treatment of the patient elsewhere. In clause 25(5) it says if the patient can or should be transferred back to the Yukon, then that will happen.

Mr. Lang: Yesterday, I asked the Minister about the ongoing cost for patients in institutions outside the Yukon and the Minister undertook to find that figure. He gave us two figures yesterday, one was $275 per day and another was $600 per month so obviously there is a wide variation depending on the institution and treatment facilities. Has the Minister got the figures I asked for?

Hon. Mr. Penikett: I have as yet no additional figures to the ones that were given yesterday. I have some other information that I might give him now.

In terms of the 21 day certificate renewal, he might know that both Saskatchewan and Manitoba have gone to that 21 day period. Alberta has a one month certificate for involuntary admission and two months for the first renewal certificate. Ontario has now gone to 14 days for their certificate of involuntary admission and one month for the first renewal. In B.C., where they have not, I understand, overhauled the law yet, the involuntary submission certificate is good for up to one year, and the first renewal is good for another one year, and a subsequent renewal is for up to a period of two years. This is obviously a much tighter provision than now operates in B.C. but is similar to some other prairie jurisdictions.

Mr. Lang: If we have a resident in an institution in the province of British Columbia, and our law requires a 21 day renewal, would that be part of the agreement? They would do a 21 day review and report to the board here in the Yukon?

Hon. Mr. Penikett: The agreement we would contemplate with that jurisdiction would be that our patient in that jurisdiction, as long as they are our patient and legally resident in this territory, would be subject to the 21 day review by the Mental Health Review Board in this jurisdiction.

Mr. Lang: Yesterday, the Minister gave us an expense of $275 per day for one particular individual in some treatment centre out of the Yukon. I figure it is just over $100,000 for this one individual. Yet, in the newspaper article last week, one of the staff of the Minister’s office was quoted as indicating that, in at least one situation, the cost was as high as $150,000 per resident. That is why I am wondering how much this is costing. I would appreciate those figures being provided to us.

Hon. Mr. Penikett: I will try to provide more complete information on that score to the Member and will try to have it by tomorrow, if possible. I did explain to the Member how difficult it was to separate some of that information. By way of comparison, we may have some people in long-term care in some institutions where we are being charged a monthly rate that is relatively modest. There may be some other people on a daily rate in different kinds of institutions where the rate may be very high because of the different kinds of charges and the different kinds of treatment.

The same theme operates in the other health fields. We have had individual cases of people with a health problem where the charges against the health insurance system may well have been in the hundreds of thousands of dollars. The nature of Canada’s health and medicare system does permit that. The figures will obviously vary from case to case, depending on the type of treatment.

Mr. Lang: Subclause (5) is about a patient’s rights not being respected. It implies that the attending physician from Yukon is going to make that judgment. Is the attending physician going to be going to these institutions and reviewing what is going on?

Hon. Mr. Penikett: It is not contemplated that the attending physician in Yukon would be travelling outside. In the health care field, normally the physician reviewing the file and the forms required under this act would make the judgment or raise the questions that are contemplated in this clause.

Clause 24 agreed to

On Clause 25

Clause 25 agreed to

On Clause 26

Clause 26 agreed to

On Clause 27

Clause 27 agreed to

On Clause 28

Hon. Mr. Penikett: This part deals with the Mental Health Review Board. It basically restricts the role of the Supreme Court to that of a body to which final appeals will be addressed. It expands the role of the Mental Health Review Board as the authority to review the circumstances of all admissions and detentions as soon as practical after the admission, all committals as soon as practical after committal, and the custody treatment, mental and physical condition of all persons committed at intervals after a certain period after the committal.

Mr. Lang: I notice the provision “males and females must be equally represented in the members appointed to the board.” Is that a policy decision taken by the government and would it apply to all the government boards and legislation be changed to reflect that?

Hon. Mr. Penikett: It is the policy of the government to try to achieve this. In the application of policy, specific provision is provided in this law for good policy reason.

As Members know - as I gave notice of it - I have an amendment to move in this section, but I would think that Members would want to have proper debate on it so perhaps I could, rather than moving the amendment now, report progress on Bill No. 20. I move that the Chair do report progress on Bill No. 20.

Motion agreed to

Hon. Mr. McDonald: I move that the Speaker do now resume the Chair.

Motion agreed to

Speaker resumes the Chair

Speaker: I will now call the House to order.

May the House have a report from the Chair of the Committee of the Whole?

Ms. Kassi: Committee of the Whole has considered Bill No. 20, Mental Health Act, and directed me to report the same.

Speaker: You have heard the report from the Chair of Committee of the Whole. Are you agreed?

Some Hon. Members: Agreed.

Speaker: I declare the report carried.

Hon. Mr. McDonald: I move the House do now adjourn.

Speaker: It has been moved by the hon. Government House Leader that the House do now adjourn.

Motion agreed to

Speaker: This House now stands adjourned until 1:30 p.m tomorrow.

The House adjourned at 5:27 p.m.

The following Legislative Returns were tabled April 24, 1990:


Amount budgeted in 1990-91 Estimates for Wage Enhancement Program (Penikett)

Oral, Hansard, p. 1296


Health and Human Resources: Supply and demand for licensed child care services (Penikett)

Oral, Hansard, p. 1294/95


Wildlife survey costs as they relate to land claims implementation funding (Webster)

Oral, Hansard, pp. 1396/97


Yukon land use planning costs (Webster)

Oral, Hansard, p. 1421


Draft Management Plan for Wood Bison in the Yukon, and proposed bison range (Webster)

Oral, Hansard, p. 1432


Seepage from septic tanks along airport road in Watson Lake (Byblow)

Oral, Hansard, p. 1136


Community consultation in unincorporated communities (Byblow)

Oral, Hansard, p. 1164

The following Sessional Papers were tabled April 24, 1990:


Three proposed amendments to Bill No. 77, Child Care Act (Lang)


First Report of the Standing Committee on Rules, Elections and Privileges, April, 1990 (McDonald)