Prescribing a Body for Purposes of Capacity and Substitute Decision-Making Reviews 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.
If an individual is determined to be incapable, the CYFSA outlines who may provide consent on their behalf as a substitute decision-maker (SDM) and factors (e.g. best interest of the individual) that must be considered in the consent decisions. The CYFSA also establishes a board responsible for conducting reviews related to determinations of incapacity and the appointment and compliance of a SDM.
In general, the CYFSA Capacity and Substitute Decision-Making provisions 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:
The intent of these regulatory provisions is to prescribe the Consent and Capacity Board (CCB) as the body for reviews regarding capacity and substitute-decision making under Part X of the CYFSA. The CCB currently has similar review roles for personal health information under PHIPA.
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