Prescribing Requirements/Restrictions the Prescribed Body Must Comply with in Conducting Reviews Related to Determinations of Incapacity and Substitute Decision-Making under Part X (Personal Information) of the Child, Youth & Family Services Act, 2017 (CYFSA)
Bill or Act:
Child, Youth and Family Services Act, 2017
Summary of Proposal:
Overview of Part X:
The CYFSA received Royal Assent on June 1, 2017. Part X of the Act establishes a new personal information privacy framework for the sector which includes new:
•Rules for the collection, use, and disclosure of clients' personal information by service providers under the Act.
•Rights for children, youth and family members to access and correct their personal information held by those service providers.
•Ministry authority to collect data and information, including personal information from clients and service providers, for purposes such as monitoring and oversight, research, evaluation and system planning.
MCYS funds and/or licenses a variety of service providers to provide services across the child and youth sector. Some of these service providers are governed by the Freedom of Information and Protection of Privacy Act (FIPPA), the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), or the Personal Health Information Protection Act (PHIPA). However, many MCYS-funded service providers are currently not governed by any legislation that sets rules for the handling or sharing of personal information (e.g. Children's Aid Societies). Part X fills the 'legislative gap' in the child and youth service sector by providing consistent protections and rights for children, youth, and families related to their personal information.
Policy Intent in Legislation:
Under the CYFSA, consent for the collection, use and disclosure of PI is based on capacity. An individual is presumed to be capable of consenting unless the service provider has reasonable grounds to believe otherwise. Proposed Part X regulations will name the Consent and Capacity Board as the body responsible for conducting reviews related to determinations of incapacity and substitute-decision making.
In general, the Capacity and Substitute Decision-Making provisions in Part X aim to:
•Provide children and youth the right to control how their PI is collected, used or disclosed
•Improve consistency in how service providers obtain consent based on capacity
•Increase accountability through review of capacity and substitute decision-making decisions
Policy Intent of Regulation:
This regulation will prescribe requirements and restrictions for CCB procedures related to Part X capacity and substitute decision-making review processes, including review of incapacity determinations, appointment of the substitute decision-maker (SDM), and the SDM's compliance with factors to consider in providing consent on an individual's behalf. These CCB procedures will be prescribed as the procedure requirements under the Health Care Consent Act (HCCA) sections 73 to 79.
These HCCA sections include requirements and restrictions related to the assignment of board members to deal with applications, panel proceedings, disqualification, application hearings, examination of documents, communication of subject-matter of hearings, member participation in decisions, and release of evidence.
Reference to HCCA procedures will provide consistency for children, youth and families as PHIPA also relies on the HCCA procedures for similar type of reviews related to consent regarding personal health information.
December 4, 2017
Comments Due Date:
January 26, 2018
Ministry of Children and Youth Services
56 Wellesley St West, 15th Floor
Toronto, ON M5S 2S3