Thank you, Mr. Speaker, and thank you, colleagues.
Bill 55, Mental Health Act, will replace the existing Mental Health Act, which is out of step with national and international standards. Notably, the new act will authorize the use of community-based psychiatric treatment and provide better protection for patient rights by establishing a review board for hearing complaints.
The Standing Committee on Social Programs thanks the Minister of Health and Social Services for introducing Bill 55 within the life of the 17th Legislative Assembly. This is a significant achievement. The bill was referred to the committee on June 2, 2015. The public hearing with the Minister was held on August 24, 2015. The clause-by-clause review was held on October 5, 2015. With the Minister’s agreement, 27 motions to amend Bill 55 were passed at the clause-by-clause review. These amendments are discussed below, along with a large number of recommended actions.
During its review, the committee heard from well over 100 residents and stakeholders. Public meetings were held in Yellowknife, Inuvik, Norman Wells, Tulita, Fort Smith, Fort Resolution, Hay River, Kakisa and Fort Providence. Seventeen written submissions were received from the Northwest Territories chapter of the Canadian Bar Association; Elaine Keenan Bengts, the Northwest Territories Information and Privacy Commissioner; the Status of Women Council of the NWT; Jane Arychuk, president of Aurora College; the Union of Northern Workers; the British Columbia Civil Liberties Association; Chief Joachim Bonnetrouge of the Deh Gah Got’ie First Nation; James and Connie Boraski and Ian Henderson; an advocate for the rights of persons with disabilities; a social worker in private practice; and a handful of GNWT employees, community advocates and private residents.
Bill 55 generated a vast amount of commentary and criticism. More than 50 potential amendments were brought forward for consideration, along with roughly twice that number of recommended actions. During the review the committee simultaneously laboured over the intricacies of legal terminology and kept the big picture in view, enumerating recommended actions that, if implemented, will usher in a healthier future for the people of the Northwest Territories.
In the community visits, discussion about the proposed legislation was often eclipsed by testimonies of struggle to overcome trauma, abuse, addictions, family violence and community dysfunction. The people’s pain was plain to see and seemed to stem from a few primary sources: the colonial history of the Northwest Territories, the legacy of residential schools, and failures in the provision of mental health service.
Like the existing Mental Health Act, the new act will focus primarily on treatment of people with psychiatric disorders. Each year in the Northwest Territories, roughly 200 patients are involuntarily admitted into our territory’s four designated facilities, located in Yellowknife, Fort Smith, Hay River and Inuvik. Like the existing act, Bill 55 is silent on the topic of addictions and substance abuse, even though these problems often coexist with psychiatric disorders. Indeed, it is ironic that, despite its official title, the bill defines a mental disorder but does not define mental health. In any case, the reality is that mental health and mental illness exist on a continuum. Likewise, mental health services include a spectrum of activities from prevention and early intervention to therapeutic counselling and in-patient hospital care. So, in the words of one NWT resident, “What we need is a companion act for the Mental Health Act. This here is a Mental Illness Act. We need a Mental Wellness Act. There’s a bit of funding here and there, but it’s really just a patchwork of services.” For all intents and purposes, the Mental Health and Addictions Action Plan may be thought of as that companion act, and to that end, the committee is calling for substantial enhancements to it.
At the public hearing, the Minister admitted, “There are gaps in our current mental health system and residents are falling through the cracks; it is clear that change is urgently needed. This legislation will fill in those gaps and modernize the current mental health framework.” The committee agrees that there are gaps in the system, but does not agree that new legislation will address them all. In fact, this sort of claim only generates false expectations. As legislation goes, Bill 55 is better than the existing act. But by itself, new legislation offers no guarantee of better services. Accordingly, if this report contains a primary take-home message, it is that new legislation is not the cure-all solution. By way of illustration, the committee learned that the department’s implementation plans include spending an additional $500,000 annually on new positions at headquarters, with no new allocations for services in the communities. Under such circumstances, the scope of positive change will be modest at best. Overall, stronger political will, more effective leadership and substantial new funding will be required if mental health services are going to be delivered when and where people need them.
At this time, I would like to pass the reading of the report over to my colleague Mr. Yakeleya.
Thank you, Mr. Speaker. Thank you, Mr. Moses.
In an eloquent statement at the public meeting in Fort Providence, Chief Joachim Bonnetrouge said, “The Mental Health Act should be written for the people it serves.” The committee wholeheartedly agreed and made a point of incorporating provisions on Aboriginal culture and the role that elders play in promoting mental and emotional wellness.
The preamble to the current act, which was not carried over into Bill 55, recognizes the many cultures of the peoples of the Northwest Territories and stipulates that an elder must be consulted when an assessment is being made about the mental state of an Aboriginal person. The committee asked why the preamble had been removed, and the department responded by citing concerns that it might be used to interpret the legislation in outdated or unintended ways. The committee disagreed with this logic, asserting that respect for culture is never out of date. The department also noted that the Official Languages Act, which came into force after the current Mental Health Act, carries obligations to provide interpretation services and deliver services in a culturally sensitive manner. Accordingly, the department argued that any mention of culture in the new Mental Health Act is unnecessary. Once again, the committee strongly disagreed. Sidestepping the problem of the preamble’s ambiguous legal status, the committee sought instead to incorporate a number of legally binding principles, including the principle of respecting people’s culture, language and religious upbringing. Another culturally relevant addition to Bill 55 is the requirement that the chair of the review board appoint an elder as a cultural advisor if an applicant requests it.
As mentioned, the committee introduced a motion to incorporate legally binding principles that will assist in the interpretation and administration of the act. These principles respond to a wide range of stakeholder concerns. The first asserts that there are to be no unreasonable delays in making or carrying out decisions affecting a person under the act. The second asserts that decisions under the act should respect a person’s cultural, linguistic and religious upbringing. The third states that least restrictive measures should be used, taking into consideration the safety of the patient and other people. The fourth speaks to the importance of family and community involvement in the care of people with mental health issues. The fifth speaks to the matter of mental competence, asserting that patients should be supported in making their own decisions for as long possible. The sixth and final principle pertains to personal privacy, underscoring the fact that information about a person’s mental health is, whether we like it or not, fraught with stigma and should be handled with the utmost respect for privacy. At the clause-by-clause review, the Minister concurred with this motion and confirmed that these principles are consistent with the intent of the legislation.
Over the course of the review, dozens of people described their lack of trust in the government’s provision of mental health services. Fighting back tears, one community advocate bravely asserted, “Silence means approval, so I can’t be silent.” In another troubling case, a young man who suffered a brain injury following a motor vehicle accident has been placed in the North Slave Correctional Facility because there is no suitable care facility in his home community. The man’s father is overwrought with frustration because service gaps have effectively led to his son’s criminalization rather than his rehabilitation.
Accounts like these line up with the data the committee received on the Community Counselling Program. Over the past five years, roughly 30 percent of its front-line positions have been vacant for 12 months or longer. Three of these so-called permanent positions in Wekweeti, Aklavik and Fort Resolution respectively, have been vacant for five consecutive years. With such inconsistent coverage, the number of resulting service failures is virtually incalculable. All too often, residents have no one to approach for guidance, counselling or after-care. All too often, referrals for other mental health services simply do not happen. This is unacceptable. The department must renew its efforts to recruit and retain qualified workers.
On a positive note, community-based services, when available, can make a significant difference. One resident described going through a bad patch of depression and anxiety attacks. "I went to the doctor and got pills, even though I’m not much of a pill-popper. But there was a mental health worker and for three years I got counselling. She really helped me a lot.” The committee is therefore calling for substantial enhancements to the Mental Health and Addictions Action Plan, as indicated in the following recommended actions.
Mr. Speaker, I will now turn the report over to Madam Groenewegen to continue reading.
Thank you, Mr. Yakeleya. Mrs. Groenewegen.
Thank you, Mr. Speaker. Bill 55 includes new provisions for “assisted community treatment,” also known as “ACT.” Essentially, this is mandatory outpatient treatment, where psychiatric care is provided while the patient is living in the community. For each patient, a treatment plan is created where the patient, health and social services professionals and family members or other support persons agree to implement and monitor the plan.
Ideally, community treatment reduces the traumatic impact of hospitalization and helps the patient reintegrate into the community following a period of hospitalization. However, as the committee discovered, there are potential shortcomings associated with this type of psychiatric care. First, despite its widespread use in other Canadian jurisdictions, community-based treatment appears to be controversial. A 2012 review of Ontario’s legislation found inconclusive evidence on the benefits of community treatment. Second, because the department has no plans to bolster resources in the communities, this option will only be available where sufficient resources already exist: in Yellowknife and, potentially, regional centres. Patients from small communities will either have to forfeit this treatment option or live away from home. Third, community-based treatment may inadvertently expose patients to criminalization if the treatment plan goes awry or the patient is not adequately monitored. Fourth, people who agree to monitor an ACT patient may be exposed to legal liabilities. Fifth, people who agree to monitor an ACT patient may experience burnout as the burden of care is handed over to family members and other unpaid caregivers. For all of these reasons, the committee cannot fully endorse the provisions pertaining to assisted community treatment.
On a per capita basis, the homeless population in the Northwest Territories is sizable, and appears to be growing. A significant number of homeless people are struggling with mental illness. The prevailing approach to homelessness and mental illness is to rely on emergency health care and on shelters for emergency housing. In the long run, this approach is costly and ineffective. As an alternative, “Housing First” is an evidence-based intervention model whereby permanent housing and wrap-around supports are provided to individuals who are homeless and living with a serious mental illness. Canada’s At Home/Chez Soi initiative was a five-year, five-city Housing First demonstration project. It examined quality of life, community functioning, recovery, employment, and related outcomes. Overall, it demonstrated that the Housing First model can be implemented successfully in combination with assisted community treatment. The committee believes that aggressive action should be taken to address homelessness, especially through the use of Housing First initiatives.
At this time, I’d like to turn the reading of the report to Mr. Dolynny.
Thank you, Mrs. Groenewegen. Mr. Dolynny.
Thank you, Mr. Speaker. Thank you, Mrs. Groenewegen. During the committee’s travel in the communities, residents described their despair and helplessness in the face of suicide. They want clearer direction in how to support people who are at risk and what to do when something goes terribly wrong. The facts and statistics for the Northwest Territories show an obvious need to strengthen suicide prevention efforts. According to the 2011 Northwest Territories Health Status Report, the annual suicide rate in the Northwest Territories is 65 percent higher than the national rate. The same report indicates that the suicide rate in small communities is several times higher than the national average. The chief coroner for the Northwest Territories reported that the suicide rate for 2014 rose substantially over previous years. Furthermore, Statistics Canada data for 2010 show that the suicide rate among youth in the Inuit homelands – which include the Inuvialuit of the western Arctic – is up to 30 times higher than that of youth in other parts of Canada.
According to the latest national and international evidence, suicide is largely preventable. For this reason, suicide prevention efforts should be strengthened and include training in Mental Health First Aid for community leaders and GNWT employees. The government also should investigate methods used in Québec, where an aggressive provincial strategy has led to dramatic declines in the rate of suicide.
With respect to Bill 55, the committee sought to introduce provisions to better ensure that people who have attempted suicide, or threatened to do so, receive proper assessments and follow-up care. A new provision pertains to cases where a person has recently caused, threatened, or attempted self-harm. It will ensure that the person undergoes further assessment to determine whether an involuntary admission is necessary. The Minister agreed to the motion and assured the committee that education and training will be provided to health professionals so that the new provision is correctly administered. The Minister also explained that involuntary psychiatric assessments are completed by a trained psychiatrist or physician and is comprehensive in nature, including an investigation into the presenting concern, the history of the concern, a mental-status exam, a physical exam, personal history, direct observations, and consultation with other professionals.
The committee also drafted a motion to establish self-harm as a criterion for involuntary admission, under the proposed Section 13. However, after reviewing the draft motion, the Minister indicated that he could not concur with it. He explained that recent harm is not a guarantee that a person will harm themselves or others in the near future and, further, that an involuntary admission solely on this basis could result in a challenge under the Canadian Charter of Rights and Freedoms. Moreover, while the legislation in some other jurisdictions includes recent harm as a criterion for involuntary admission, it indicates that the risk of future harm must also be present. Persuaded by this reasoning, the committee chose not to introduce the motion.
During its review of Bill 55, the committee learned that suicide is the second-leading cause of death among Canadian youth and that roughly 20 percent of Canadian youth have a mental health issue. Moreover, in about 70 percent of cases, mental health problems emerge before a person reaches the age of 18. These facts came to light in a 2006 report by the Standing Senate Committee on Social Affairs, Science and Technology. The ground-breaking report called the treatment of children and youth the worst part of the mental health system in Canada. The report made such an impact that all Canadian provinces subsequently developed stand-alone mental health strategies for youth and adolescents. The Northwest Territories has not yet followed suit. However, as he indicated at the clause-by-clause review, the Minister will be recommending that such a strategy be undertaken in the 18th Assembly.
Through you, Mr. Speaker, I’d like to turn it over to my colleague Ms. Bisaro. Thank you.
Thank you, Mr. Dolynny. Ms. Bisaro.
Thank you, Mr. Speaker. Under the current Mental Health Act, the courts are the only recourse for people who wish to have a decision reviewed or appealed. This approach is expensive, inefficient and out of step with best practices elsewhere in Canada. The new act will enhance patient rights by establishing a quasi-judicial review board for hearing complaints. Applications to the review board may pertain to such matters as involuntary admissions, findings of mental competence or objections to treatment. Every application will be handled by a three-person review panel consisting of a lawyer, medical doctor and lay person. In response to a stakeholder query, the committee confirmed that members of the review board will be paid for their services.
To enhance patient rights, the committee sought two changes pertaining to the review board. The first change requires the chair of the review board to appoint an elder as a cultural advisor where an applicant requests it. The purpose is to ensure that matters are handled in a culturally sensitive manner. The Minister concurred with this motion, but noted that the review panel already includes a lay person who will play a patient-advocate role and that the panel has the ability to call an elder as a witness at a hearing. The Minister cautioned that providing patients with the option to request a cultural advisor may result in delays or increased operational costs. The committee therefore agreed to the inclusion of a notwithstanding clause that will allow the review panel to continue its proceedings if, in rare circumstances, a suitable cultural advisor cannot be found. A second change pertaining to the review board provisions requires that the composition of the review board reflect the diversity and gender balance of the population.
The committee contemplated ways of enhancing patient rights in other ways too. Initially, it drafted a motion to allow a voluntary patient who disagrees with a doctor’s discharge decision to remain in the designated facility until the case has been considered by a review panel. However, the Minister explained that an order from a review panel would likely result in undue delays and hardship for the patient and unnecessary operational costs. He subsequently proposed to grant every patient – voluntary and involuntary alike – the right to a second medical opinion. The committee accepted this line of reasoning and introduced a motion to that effect. At the request of the Minister, a companion motion was introduced to ensure that notice of the patient’s right to a second opinion is conspicuously posted.
The committee also introduced a motion to facilitate greater involvement on the part of family members and other support persons. Recognizing that a patient’s right to privacy imposes certain justifiable constraints and, further, that some patients do not want their family involved, the committee introduced a motion that will impose a duty on the attending doctor to ask a voluntary patient if he or she would like someone to be notified of their circumstances. A companion motion was introduced to ensure that the doctor makes reasonable efforts to notify the person, and the Minister concurred with these motions at the clause-by-clause review.
In addition, the committee acted on recommendations from the Northwest Territories chapter of the Canadian Bar Association (CBA). The CBA explained that mentally ill people are criminalized whenever they come into conflict with the law and end up in correctional facilities instead of medical facilities. Individuals who suffer from psychiatric disorders, the CBA continued, are frequently subjected to apprehensions or periods of detention that are virtually identical to those resulting from criminal offences. To mitigate against these tendencies, the committee and the Minister settled on several additional provisions. First, a peace officer will be required to convey a person to a health facility without delay. Second, a peace officer will be required to inform the apprehended person, again without delay, of the reason for their detention and their right to legal counsel. Third, the peace officer will be required to facilitate the person’s access to legal counsel. Fourth, in the event of a necessary delay in conveying the person to a health facility, the patient will have the right to communicate with a family member, health professional or other person. Finally, in the event of a delay, the peace officer will be required to contact a health professional to discuss the person’s condition and circumstances. At the clause-by-clause review, the Minister indicated that these changes are consistent with Charter rights and the intent of the legislation.
With respect to the selection of substitute decision-makers, the committee acted on concerns of the Information and Privacy Commissioner and the Status of Women Council of the NWT. Because the original language in Bill 55 would only have allowed for an express wish to be considered after the selection process had begun, the committee introduced a change. It states that, notwithstanding the prioritized eligibility list set out in Section 30, if a medical doctor believes a patient is competent to participate in the selection of a substitute decision-maker, the patient’s express wish must be first in priority. The Minister concurred with this motion at the clause-by-clause review, but cautioned that the change will complicate the process of selecting a substitute decision-maker and place additional burdens on the department to establish practice standards and train health care providers.
The Information and Privacy Commissioner provided a lengthy submission on Bill 55. The committee asked the Minister to respond to it and then deliberated on the issues. First and foremost, the committee determined that privacy issues pertaining to the Mental Health Act will largely be governed by the Health Information Act.
Second, the committee observed that points of disagreement between the Minister and the Commissioner focused largely on whether privacy provisions should be contained in the statute or in regulations. Recognizing that regulations can be more easily changed and brought into force without the scrutiny of the Legislative Assembly, the committee nonetheless concluded that privacy protections will have the force of law in either case.
Third, the committee took up the Commissioner’s concern about the bill’s failure to prohibit board members from disclosing information obtained in their role as board members. A motion to establish a confidentiality clause was introduced at the clause-by-clause review with the Minister’s agreement.
Fourth, in reference to Section 56, which authorizes the creation of a registry of certificates issued under the act, the committee noted that the Health Information Act expressly permits the creation of such a registry. The Commissioner asked for a statutory amendment to clarify the registry’s purpose, but the committee concluded that regulations are an appropriate place to specify this. Moreover, the committee was satisfied with the Minister’s explanation that the registry will be used to keep track of the number of involuntary patients and thereby assist in long-term planning. The Minister also offered assurance that certificates will be securely filed and that only relevant information from certificates will be entered into the registry.
Fifth, in reference to the concern about law enforcement’s access to certificates—and, specifically, access to the sensitive information contained therein, the committee confirmed that federal legislation protects personal information and places obligations on RCMP officers to respect confidentiality. The Minister further indicated that unnecessary information will be redacted from certificates, a practice consistent with the department’s obligations under Section 28 of the Health Information Act. These matters will be prescribed in regulations, and the committee concluded that regulation-making authority relating to the apprehension of persons will include the authority to prescribe how information is shared.
Mr. Speaker, I would now like to turn the reading of the report over to my colleague Mr. Moses.
Thank you, Ms. Bisaro. Mr. Moses.
Thank you, Mr. Speaker. A large number of operational requirements will be laid out in regulations. For this reason, the department is being strongly urged to draft regulations in consultation with the Standing Committee on Social Programs, key stakeholders and members of the public. An area that will require careful scrutiny is the designation of authorized persons for apprehending, conveying or detaining individuals. Regulations should clearly establish who, and under what circumstances, these persons will be employed.
The committee was encouraged to learn that the Department of Health and Social Services is developing an agreement with the RCMP regarding its role under the new act. That said, the committee is concerned about the risk of improperly trained persons being called upon in communities or situations in which there is no RCMP presence.
With the Minister’s agreement, the committee introduced a motion to define a "peace officer" within the act, stipulating that it should mean a member of the RCMP or a prescribed person or class of persons. The Minister agreed that the definition of a peace officer in the Criminal Code of Canada is quite broad, and confirmed that the original intent of the legislation was to define a peace officer as the RCMP. A companion motion was introduced which provides regulation-making authority to prescribe other classes of persons or alter the definition of a peace officer in the future.
The department was asked to clarify whether the medical records of a patient who is transferred to another facility will be sent along with the patient so as to prevent unnecessary repetition of requests for the patient’s medical history. Departmental staff confirmed that the under subsection 96(2), the relevant records of a patient who is transferred to another facility, whether inside or outside of the Northwest Territories, must be transferred to the receiving facility. However, to strengthen this requirement, the committee introduced a motion to ensure that the receiving facility receives the records as soon as possible. The Minister concurred with this motion.
A number of additional motions were passed at the clause-by-clause review. A pair of motions was passed to ensure that patients will not be provided with the home address of the chairperson of the review board. A motion, which was introduced at the Minister’s request, replaces a phrase in subsection 84(1), and clarifies that documents being served on a patient can only be served on the public trustee and endorsed with the name of the facility if the person is an involuntary patient and has been found mentally incompetent to manage his or her estate. Finally, to correct a handful of minor drafting errors, several technical motions were passed during the clause-by-clause review.
That the Government of the Northwest Territories provide a comprehensive response to this report for consideration by the Legislative Assembly in June 2016.
The Standing Committee on Social Programs thanks all stakeholders who provided comments on Bill 55 or attended public meetings.
The committee advises that it supports Bill 55 as amended and reprinted and presents it for consideration to Committee of the Whole.
