Experts slam lack of consultation by N.S. government on legislation

A leading professor on mental health law is slamming the Nova Scotia government's approach to consultation on legislation as "shameful."

Archie Kaiser, who teaches at Dalhousie University's law and medical schools, made the comments in a telephone interview following a virtual appearance before the legislature's law amendments committee on Monday. The committee is where the public has the chance to comment on bills being debated in the House.

"I'm astonished and flabbergasted that this government, you know, could think that this all-too-hasty consideration of such a complicated bill would be satisfactory to Nova Scotians," he said.

The bill Kaiser is referring to would make amendments to the Involuntary Psychiatric Treatment Act. In the five minutes he had to present, Kaiser told the committee that, in his view, the bill fails to come to grips with Canada's obligations under the United Nations conventions on the rights of persons with disabilities and in several cases runs counter to the conventions.

'Indecent haste'

Among other things, the legislation propagates stigma against people with mental illnesses, said Kaiser. He told CBC News that such a bill demands thorough, broad public engagement that includes people with lived experience and those who advocate on their behalf.

"What's happening now looks like legislation drafted behind closed doors and rushed through the House with indecent haste in a matter that's entirely disrespectful of the gravity of the issues and of the rights of people with mental illness."

Kaiser was not the only subject matter expert who appeared before the committee to voice concerns, not just with pieces of legislation, but the way the provincial government operates when it comes to consultation.

Dalhousie law professor Sheila Wildeman said she only learned about the proposed changes to the Involuntary Psychiatric Treatment Act on Sunday evening when a colleague in B.C. mentioned it to her. Wildeman was added to the witness list Monday morning.

Unintended consequences

Meanwhile, the province's information and privacy commissioner, Tricia Ralph, told the committee that her office was neither consulted on or even informed about changes to the Personal Health Information Act, which were introduced last week. That's one of three laws Ralph said her office deals with on a daily basis.

Ralph told the committee the amendments presented by the government create unintended consequences that, in some cases, could actually weaken privacy protection and the ability to respond to breaches.

"I urge the committee to send this bill back to the minister, with a recommendation to consult with my office to ensure that Nova Scotians' access to privacy rights are respected and protected," she said.

Opposition MLAs attempted to send both bills back to their respective departments in light of the concerns shared by Wildeman, Ralph and Kaiser, but the government used its majority on the committee to block the move.

Instead, Tory MLAs Dave Ritchey, Kent Smith, Trevor Boudreau, Melissa Sheehy-Richard and chair Brad Johns voted to send the bills back to the House without changes so they could continue through the legislative process.

The approach Monday is one that became familiar during the eight years of the former Liberal government, where law amendments was often seen as a rubber stamp as the government attempted to move through its legislative agenda as quickly as possible.

Johns, who sat in opposition during some of those Liberal years, said it might seem like history is repeating itself, but insisted that committee members for the government are there to hear the public. He said all concerns would be passed along to the ministers in charge of the respective bills.

"Sometimes there will be amendments that come forward we may support, sometimes there's going to be amendments that come forward that we don't support," he told reporters at Province House.

Although the bills are moving forward, Johns said changes could still take place during debate at committee of the whole House and during third reading.

Johns said he and his colleagues are free to make their own decisions during the committee and have no instructions to prevent bills from being sent back to departments for further consideration. The bills could be back before the House as soon as Tuesday.

Liberal MLA Braedon Clark said what he saw Monday gives him concerns about the way the committee operates.

In particular, Clark said he'd like to see clearer rules around the amount of time made available for people to speak, especially when they're experts in their field speaking about complicated legislation. He pointed to inconsistencies on Monday, including the five minutes afforded to Kaiser to speak while a presenter on changes to the Condominium Act got 10 minutes.

"The criticism that is often thrown at government is that it moves too slow but, honestly, when we're talking about legislation that affects people who are, you know, particularly vulnerable in some cases, it needs to be given the second and third thought. It's not a difficult thing."

New Democrat MLA Kendra Coombes said she was troubled by government MLAs not heeding the concerns expressed by Ralph.

After becoming premier last summer, Tim Houston pledged to overhaul the freedom-of-information system and give Ralph's office more power. To date, no changes have been brought forward by the Tories and Houston said last week the soonest that's likely to happen now is the fall.

"I think when an office is coming to us or experts are coming to us and saying, 'This needs to go back to the minister,' I think the most responsible thing that we can do as a committee is to follow that direction," said Coombes.

Bills won't change

The ministers responsible for the two bills that drew attention on Monday said they would proceed through the legislative process as written.

Health Minister Michelle Thompson and Brian Comer, the minister responsible for the Office of Addictions and Mental Health, said their respective amendments were developed using consultation that happened in the past and they both said they're satisfied with the changes as presented.

Comer said he's open to feedback on the process used to draft bills and it's something he'd consider for the future. Thompson said there are more changes coming and there would be further opportunity for input at that time.

"And certainly the concerns that were raised today by the privacy commissioner, the department will reach out and do some clarification with her about the concerns that she brought forward."

Nova Scotia is one of only three jurisdictions in the country where it is not mandatory to report health privacy breaches to the privacy commissioner. Thompson said that change could be considered for the future, but it's not at this time. Her current bill calls for regular reviews of the Personal Health Information Act.

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