13. Services

Under the Code, service providers have a duty to provide services that are free from discrimination and harassment. “Services” is a very broad category and includes services designed for everyone (shops, restaurants or education), as well as those that apply specifically to people with mental health disabilities and addictions (the mental health system or addiction treatment centres). Some people have limited involvement with certain services; however, many play a critical role in people being able to enjoy their rights, livelihood, health, access to justice, or ability to take part in community or political life. The types of services most identified in the consultation as posing concerns were education, the criminal justice system (including policing, courts and the correctional system), social assistance programs, health and mental health care, child welfare, government rules regarding driver’s licences, the insurance system and administrative tribunals.

13.1. Availability of mental health and support services

A large number of participants in the consultation told us about the pressing need for adequate mental health and other support services for people with mental health issues and addictions. We heard about the profound impact that the lack of appropriate mental health services has on people’s lives – including increased criminalization, increased homelessness, perpetuation of poverty, increased social isolation, deteriorating physical and mental health, and premature death. We also heard that the lack of available services in the community has an impact on people’s ability to exercise their human rights in other areas. For example, long wait times for psychological assessments to identify someone’s needs can delay accommodation in employment, education or in the criminal justice system, which may result in the denial of equal access or opportunity in these areas.

The themes raised in this consultation reflect, in part, what people raised in the provincial and federal consultations on reform of the mental health system.^[125] For example, we heard about the need for more mental health and addictions treatment, counselling and support services (such as housing and employment support). People described how these types of services were often not available for people released from psychiatric and correctional institutions and people who are in correctional facilities. We also heard that specific Code-protected populations have a great deal of difficulty accessing services: youth, Aboriginal Peoples, refugees and immigrants, people with learning or developmental disabilities, women who have experienced violence, people with hearing disabilities, people with borderline personality disorder, people with fetal alcohol spectrum disorder and people in the Francophone community. Where people are from two or more of these communities, we heard that services are that much more difficult to find or access.

We also heard concerns about differences in funding for services in rural communities versus urban centres in Ontario, the very long wait-lists for mental health professionals, the lack of Ontario Health Insurance Program (OHIP) coverage for medications and mental health counsellors such as psychologists or other therapists. People said that it was a problem that to get inpatient treatment at a hospital, they had to be at the point of a state of crisis, or assessed as a danger to themselves or others under the Mental Health Act.

Uncoordinated service delivery and the narrow mandates of mental health services, other services and the government ministries funding these services were seen as creating a problematic “patchwork” of services, leading to people being turned away as ineligible. For example, one person in Ottawa said that eligibility for people with a dual diagnosis is defined differently across services funded by the Ministry of Health and Long-Term Care and the Ministry of Community and Social Services.[126] The Learning Disabilities Association of Ontario told us that lack of coordination of services within and across governments is a big problem for people with learning disabilities who also have mental health disabilities.

I find sometimes that mental health services can be very specific — if you do not fit in the category for what you need help with, then you fall through their cracks and lose the help you need. – Participant in North Bay roundtable session

We heard concerns that the mental health system is funded inequitably compared to general health care. Past reports have documented the discrepancies between the mental health system and the broader health care sector.[127] The 2002 Romanow report on the state of Canada’s health care system identified how the mental health system has been traditionally seen as one of the “orphan children” of health care, because mental health and addictions programs have been managed separately from other health care programs.[128] Canada spends less public health care funding on mental health than most developed countries.[129] To correct imbalances in funding of general and mental health care, the Mental Health Commission of Canada’s national mental health strategy recommends increased investments in mental health care and other social spending (such as housing, education, and the criminal justice system).[130]  Others have suggested merging mental and general health systems, so the whole person is treated.

The Supreme Court of Canada has given governments deference to allocate scarce resources and choose the services they fund. However, they must do so in a way that does not discriminate.[131] If its allocation of health care resources has an adverse effect on any Code-protected group, the government may be required to show their decision is reasonable and legitimate (bona fide) in the circumstances. This includes considering the objectivity of the process that was used to make the decision. It also includes considering whether the decision on health care coverage was affected by discriminatory views about the group in question.[132]

Where there is a lack of access to appropriate services for people with mental health disabilities and addictions, this may also conflict with rights under the Convention on the Rights of Persons with Disabilities (CRPD). The CRPD says that States Parties (including Canada) shall provide health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate (Article 25 b); and that States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programs, particularly in the areas of health, employment, education and social services (Article 26 (1)).

Most people said more mental health and other support services are needed that address people’s diverse needs and use a variety of approaches. It is not within the OHRC’s role or expertise to make recommendations on how funding should be allocated to various mental health, addiction and other support services. However, any inequities in the availability of these services should not contribute to people with mental health issues or addictions experiencing barriers to accessing appropriate health care and other supports compared to people with other types of disabilities or people without disabilities.

Recommendation:

29. The Government of Ontario should look for and correct inequities in health care, rehabilitative and support services for people with mental health disabilities or addictions compared to general health care. 

13.2. The duty to accommodate in services

An overview of the duty to accommodate is outlined in section 2.4. We also heard the following.

a) Inclusive and accessible services

Many consultees described how different kinds of services, including income support, policing and mental health support services, generally are not designed to meet the needs of people with mental health issues or addictions. Attitudinal barriers may exist that disadvantage people with mental health issues and addictions. The Ontario Association of Social Workers (OASW) told us that discrimination can be built into the design of the service where there are limited resources, poor accountability mechanisms, and a lack of specific mandates, training and capacity to work with clients who are thought of as “difficult to serve” and more complex situations.

Consultation participants said that services are often not designed to address the needs of people with episodic disabilities. When the service is ready, the person may not be, and vice versa. Due to funding restrictions, service organizations may have mandates to provide services only to people with severe disabilities. People may be pressed to show that they meet the criteria for being considered permanently disabled, instead of being significantly affected by their disability (University of Guelph Human Rights Office). People related being denied benefits or services because, at the time they were assessed, some of their conditions were not disabling.

Throughout the consultation, we heard that services are built on the assumption that people have just one disability. People with multiple disabilities find it difficult to access some services because the services are not inclusively designed. Many told us that having a concurrent intellectual disability, addiction or learning disability can create a barrier to receiving mental health treatment or support services. Some services may be designed to only serve people with physical or other disabilities, and exclude people with psychosocial disabilities when they could also benefit from the service.

Services may inadvertently create barriers for people with psychiatric and addiction disabilities through their design, structures, policies or decision-making processes. The OASW, among others, said that many mental health and support systems have referral processes that symptoms of mental illness can make very difficult. Some consumer/survivors or people with addictions may struggle with organizing their thoughts, which can interfere with the need for continual monitoring of waitlists.

Application forms for certain services (such as administrative tribunals or ODSP) were described as complex and difficult to navigate, not written in plain-language, or requiring multiple types of documentation, which may cost money that people do not have. Call centres that provide initial assessments, such as for social assistance, or at Legal Aid Ontario, were said to be difficult to access. For people with cognitive or memory impairments, low levels of literacy, or lack of access to a telephone, application processes can be extremely difficult. See section 11.1. b) for the issues raised about the application process for supportive housing.

Certain payment or evaluation methods may unintentionally encourage service providers to turn away people with mental health issues and addictions. Where service providers are compensated per client, or are evaluated based on service targets that aim for a high number of customers served (for example, doctors’ offices), this can adversely affect people with mental health disabilities and addictions and other types of disabilities who may need more time (CMHA Ontario; ARCH). Also, we heard that people with psychosocial disabilities may be perceived to be “difficult” when they need more time from service providers. Allowing a client to take more time due to disability-related needs is part of the duty to accommodate. Service providers said that offering more time to clients who need it can require a balancing when considering other clients who also need the service.

Box: ARCH described how lawyers taking legal aid certificates may be discouraged from serving clients who may lack capacity but do not attend with a substitute decision-maker. It takes time to assess capacity at each meeting with someone, which lawyers may not be compensated for. End Box.

Similar to rental housing, people with psychosocial disabilities may be screened out of or denied services altogether because of factors related to their disability. In particular, we heard that service users with psychiatric disabilities may be denied services because they are seen as too “high risk” due to past disability-related behaviour that was problematic in that service or other services. People were also concerned that many services do not consider their duty to accommodate and simply bar people with a criminal history from taking part, even if the criminal history is related to a mental health issue or addiction.

As well, some people told us that people may be turned away by service providers if a person is deemed “non-compliant,” doesn’t behave in a way the service provider expects, or does not accept a certain type of mental health treatment where this is not a legitimate or bona fide aspect of taking part in a service. For example, one person at a university described being denied alternative testing arrangements that were required to accommodate their disability, because they did not see their counsellor regularly.

Box: Some people told the OHRC that if they did not comply with taking the medication prescribed by their psychiatrist or doctor, they were told they would not be able to continue seeing them. End Box.

We heard that to properly consider the needs of people with psychosocial disabilities, services should be designed with time and flexibility in mind for everyone, taking into account everyone’s individual needs, without having to ask or assume that someone has a disability. Consultees identified that an organization’s rules, policies and procedures must be modified and made flexible to meet individual needs. In redesigning services or systems, participants in the Ottawa roundtable sessions were particularly vocal about the need for consumer/survivors to be included at the table to guide policy direction, quoting “nothing about us, without us.”

 The types of accommodations that might be required in a service environment for someone with a psychosocial disability include:

• Flexible deadlines, or extra time given
• A quiet service environment
• Extra support from people (human support)
• Multiple ways of contacting the organization (for example, telephone, email, in-person, mail)
• Facilitating or providing support for decision-making
• Intake forms or other forms of written communication that are accessible and written in plain language
• Flexibility in scheduling appointments
• Considering disability as a mitigating factor before imposing punitive measures.

Recommendation:

30. In accordance with the AODA and the Code, service organizations should review their policies, practices, application forms and decision-making procedures, working with consumer/survivor groups and accessibility experts to identify and eliminate barriers that may result in inequitable treatment for people with psychosocial disabilities or addictions. 

13.3. Inequitable treatment and harassment in services

Many service providers understand their individual obligations to treat people equitably under the Code, with some consultees describing very good interactions with service providers where they felt respected, valued and included. Hundreds of individual service providers and organizations came forward to raise their concerns about human rights violations against people with mental health and addiction issues. As one service provider, a regional director of a health care centre said, “…we are always heavily involved in these issues because we feel clients are discriminated against.”

However, many noted that, compared to other people, people with mental health disabilities and addictions may experience unprofessional behaviour or inequitable treatment from service providers, including comments or behaviours based on disability that could amount to harassment or a poisoned service environment. They also talked about judgements on the part of service providers that clients with mental health issues or addictions are trying to “take advantage” of systems.

These comments or behaviours may arise from negative or discriminatory attitudes towards people with psychosocial disabilities. The Ontario Association of Social Workers told us that service providers may use “common language that is discriminatory, judgmental, and derogatory, which can impact on a potential service user’s willingness to access service. Service providers may not see past the label assigned to a consumer-survivor, minimizing a person’s identity outside of the illness.”

After surgery, my surgeon told me, “Had I known you were crazy, I wouldn’t have operated on you.”

– Focus group participant

We heard particular concerns about mental health and primary health care professionals creating an unwelcoming, harassing or poisoned service environment for people with mental health issues or addictions.

I worked in emergency services [as a paramedic] and they are very degrading towards mentally ill people. At lunch they would talk about having to go pick up another “crazy” or “junkie” and these are the people on the front line.

– Participant in North Bay roundtable session (who also identified as a consumer/survivor)

In part because these same concerns were raised in the Kirby report, the Mental Health Commission of Canada has directed the first stage of their nationwide anti-stigma campaign towards health care professionals.[133]

One example of the impact of labelling came from two people who told us that they were given a purple armband to wear in hospital to identify that they were a danger to themselves or others (both were suicidal). They spoke of feeling very stigmatized and one stated that she was treated worse by staff when she was wearing the armband than when she was treated in hospital and was not made to wear one.

Box: Consultation participants raised concerns about privacy. Many said that information about a person’s mental health and addiction history can be shared from one service provider to another, often after a client signs a “blanket release” years earlier. Consent forms may not be regularly renewed. This issue may result in service providers knowing more private medical information than they need to provide the service, and potentially breaching service users’ privacy. End Box.

13.4. Types of services that raised concerns

a) Education

Box: Article 24 of the United Nations’ Convention on the Rights of Persons with Disabilities provides for the right to education. By ratifying the CRPD, Canada has committed to taking progressive steps to ensure that students with disabilities are not excluded from the education system based on disability; that accommodation is provided in the education system; and that effective individualized support measures are provided to maximize academic and social development consistent with the goal of inclusion.[134] End box

Mental health issues will often start to appear when people are of school age, either in post-secondary school or secondary school, or in elementary school. Consultees said that initially assessing and identifying students’ needs are critically important. In Windsor, concerns were raised that students may be assumed to be “lazy” or “troublemakers” when they have emerging mental health issues that aren’t understood or taken into account. At all levels of education, particular accommodations may be needed to make sure that students have equitable access to education. Common forms of accommodation that may be needed by students with mental health issues include alternative methods of testing, human support, extensions for assignments, consideration for time missed to address a disability, and consideration around academic suspension if it is related to disability.

Elementary and secondary school

ARCH told us that attitudinal barriers are common in Ontario’s public education system. These stereotypes, assumptions and discriminatory attitudes pose major barriers and may prevent students with mental health disabilities from receiving appropriate accommodations. We heard that students with mental health issues may be viewed as not having the capacity to excel. These types of assumptions may be more likely to occur when people also face racial discrimination or discrimination based on other Code grounds. Participants in the focus group hosted by the Ethno-Racial Disability Coalition of Ontario said that racialized students, with parents who have mental illness or addictions, may be targeted at school and streamed into programs that are below their educational capacity.

Some consultation participants described being treated poorly, bullied or shunned by other students based on a psychosocial disability, or being perceived to be “different,” leading them to feel excluded.

Being ostracized at school for acting funny or being different is still the norm – and if one chooses to disclose, no one knows enough about mental health issues not to shrug it off or laugh. More education at all school levels is needed, not just about the physical disabilities but the mental ones. 
– Survey respondent

The lack of appropriate treatment or assessment services results in students’ education being interrupted. We heard that students can wait up to two years for psychological assessments to identify their needs. The OSSTF/FEESO said that, due to the lack of proper resources to assess and treat such students, the education system may need to deny access to schools to students who present a threat, either to themselves or others. In its Guidelines on Accessible Education, the OHRC said that although there may be situations where a student poses a health and safety risk to him or herself or to others, the accommodation process must still be fully explored, to the point of undue hardship.

Several consultees, including ARCH, were concerned that students with multiple disabilities, including behavioural, intellectual and developmental disabilities such as autism or ADD/ADHD are suspended or expelled from schools due to disability-related behaviours, without appropriately considering accommodation. We have recognized this for many years, and included it in our consultation on accessible education, reported in The Opportunity to Succeed. ARCH said that multiple suspensions and/or poor school performance due to lack of appropriate disability accommodations have very negative impacts on students’ mental health. Parents and students have reported to ARCH that students who are frequently suspended and/or not accommodated in school develop anxiety disorders, depression and low self-confidence. The OSSTF/FEESO noted that students with untreated school phobias, undiagnosed depression or psychosis may be unable or unwilling to attend school regularly. The Lakehead District School Board‘s Special Education Advisory Committee recommended that resources be provided to school boards to ensure appropriate training to staff and students to address any issues that may arise around students’ needs.

The school board said mental health is not their concern, right after another special needs boy killed himself last year. I was supposed to get occupational therapy last year and they did not bother to put the request through so I could get help. No one at the school even read my file so I could get the right help to learn at school. They even passed me and I never finished my work or wrote my exams. It is easier to suspend the students rather than help us. If we do something a little bad they call the police without calling our parents to speak up for us. My mom says this is a way to just scare us. – Survey respondent

We have heard concerns that students with disabilities, including mental health issues, are sometimes placed in special education classes without their parents’ consent, with few opportunities for inclusion with regular classes. This is inconsistent with the human rights principle of inclusion, the OHRC’s Guidelines on Accessible Education, the Ministry of Education’s policy position, and the direction of Regulation 181/98 of the Education Act, which governs the placement of exceptional pupils in classroom settings.[135]

Consultees pointed to the Ministry of Education’s Inclusive Education strategy as providing a positive foundation for respecting the human rights of students with disabilities. The strategy and Policy and Program Memorandum 119 (PPM 119) recognize that discriminatory barriers to learning may affect students based on mental disability, as well as other Code grounds. PPM 119 lays out requirements for all publicly-funded school boards to develop, implement and monitor an equity and inclusive education policy, designed to foster a positive school climate that is free from discriminatory or harassing behaviour.[136]

As well, the first three years of the Ministry of Health and Long-Term Care’s (MOHLTC) 10-year Mental Health Strategy have a particular focus on children and youth. The MOHLTC has said it will invest in increasing the number of mental health resources (including mental health workers) in schools, promote mental health literacy in schools, and promote anti-stigma practices for children, youth and educators, among other groups.[137]

Post-secondary school

Submissions about post-secondary education focused on the duty of post-secondary institutions to accommodate students with psychiatric disabilities to the point of undue hardship, either when applying for school or during students’ school careers. Several people said that, because of disability offices that help post-secondary students with disabilities to get accommodation, they received accommodations without difficulty. However, others told us that there were still gaps in accommodation practices, making students with psychiatric disabilities more likely to drop out.

Despite being in my school's disability program that allows me to have some accommodations, I sometimes run into professors that are not willing to give me the accommodations I need. I think because I don't have a visible disability many people think I'm faking it. It's so much work to fight for my accommodations that I usually end up dropping the course and that puts me even farther behind in school.

 – Survey respondent

We also heard that students with psychosocial disabilities are sometimes questioned about gaps in their employment history or education, which prevents them from being considered for post-secondary school programs. These gaps may be related to time taken to recover from mental health or addictions issues (ARCH). As well, we heard how accommodation requests may be contested by professors or others, and how a diagnosis or detailed information about a disability was required for accommodation purposes, which was seen as compromising students’ privacy.

As in elementary and secondary schools, people said that delays in mental health services (e.g. getting a psychiatrist’s appointment) result in decreased access to education for students with psychiatric disabilities and addictions, because schools rely on these practitioners to verify students’ accommodation requests. The University of Guelph’s Human Rights Office pointed to the need for educators to consider the fluctuating nature of a person’s mental health issue when considering accommodation planning. It added that requests for academic consideration must be evaluated on a case-by-case basis, and the need for accommodation must be balanced with the institution’s need for academic integrity.

The OHRC heard that professors discourage some students with mental health histories from doing co-op or educational learning placements in settings where they would be working with people or working in the mental health field. This has an impact on their future careers. In addition, the requirement of police records checks (see section 12, Employment for more details) has had an impact on people’s ability to find co-op or field placement positions working with vulnerable sectors. 

I was denied admission to a medical laboratory science program. The program required a police records check because I would have had contact with patients to draw blood. Due to two incidents where I was taken to the hospital by police because of suicidal ideation, I was denied entry to the program. – Survey respondent

b) Presumption of risk: Driver’s licences, child protection and insurance

I once had a Children’s Aid Society worker tell me, "But you’re bipolar. How can you parent?" This same worker admitted she did not believe parents with mental illness could parent. – Survey respondent

Many people said the services of child protection, life and disability insurance, and rules around driver’s licence suspension were potentially problematic from a human rights perspective. In particular, people were concerned that they were denied equality in these services because they were presumed to pose a risk based on disability.

The Psychiatric Patient Advocate Office and other consultees raised concerns that the system of suspending driver’s licenses based on a mental health condition or drug or alcohol addiction under the Highway Traffic Act is done without a proper individualized assessment of that person’s medical condition by doctors or the Ministry of Transportation. We heard that the appeal process to get a driver’s licence back has disproportionate effects on people with mental health disabilities and addictions, because of its complexity and expense.

We heard issues about the child welfare system. People with mental health issues and addictions were sometimes presumed to be a risk to their children based on disability-related stereotypes. We were told that parents have been reported to the Children’s Aid Society after disclosing a mental health issue to a child’s school. We also heard concerns that addictions testing may not properly assess a person’s risk to their children.

Many people said they had difficulty getting life or disability insurance, including individual and group insurance, because of a psychosocial disability or addiction, and the associated risk with suicide or impairment. They also told us they were deemed ineligible to receive insurance because they had “pre-existing conditions,” even though they were not currently unwell.

The Human Rights Legal Support Centre said that one of the conditions of insurance may be that someone is expected to be free from any disability-related symptoms or cannot have received treatment in the last 12 months. However, this may have a negative impact on someone with a mental health disability because the person is penalized even if the treatment is helping to keep them well. The Canadian Life and Health Insurance Association said that insurers assess a person’s risk based on factors such as the severity of the condition, whether it has been chronic or recurrent, the record of care by the attending physician, and the time elapsed since the most recent incident or onset of symptoms.

Where distinctions in these sectors are based on disability and they create a disadvantage, this may amount to discrimination. Defences and exceptions under the Code may apply in these situations and also need to be considered. Organizations must make sure that risk assessments are made on a case-by-case basis, and are based on objective criteria.

OHRC commitment:

C19. The OHRC will examine further the policies or processes of driver’s licence suspension, child protection or insurance policies and consult with the appropriate government ministries and stakeholders to consider whether these contravene the Code. Where these practices have the potential to violate the Code, the OHRC will address these concerns using the functions in its mandate.

c) Public assistance

It is an unkind system that makes clients feel that once they are “on disability” that that is it – that is their life, their life of perpetual poverty and uselessness. How is that economically sound practice? How is underutilizing human resources smart business or remotely good for the overall prosperity of our province or country? – Written submission

Concerns raised about the experience of receiving public assistance made up a significant portion of the consultation. We heard about barriers in designing and delivering these programs that cause disadvantage to people with psychosocial disabilities. As identified in the section on socio-economic status, OW and ODSP are currently being reviewed in Ontario, with a view to removing barriers and increasing opportunities for people to work.

We heard concerns about the application processes for social assistance (OW and ODSP). In addition to the forms being complex, many said it can be very difficult to get all the required information together in the specified time, especially when dealing with symptoms of a disability. This can cause some people to be cut off from benefits or not accepted.

We heard that the “emotional energy” needed to navigate the social assistance system compounded with mental health symptoms was often too much; some described just “giving up.” As a result, people lost out on basic needs such as food, paying rent or paying for utilities. As well, people described how dealing with the stresses of the system had negative impacts on their mental health. One social assistance representative told the OHRC that efforts have been made to increase the accessibility of the service by improving letters and brochures and making case workers more available.

Navigating the system seemed impossible. I wasn’t thinking clearly [after being released from hospital]. You’re on your own. There is a system there but accessing it is almost impossible. – Participant in Toronto roundtable session

We also heard concerns about the types of benefits that people required due to disability but these were not available through social assistance. People described how ODSP would not cover certain extra medical expenses related to disability, such as a special diet required for a mental health issue or addiction. The OHRC is involved in ongoing litigation at the Human Rights Tribunal of Ontario challenging aspects of the Special Diet Program provided under ODSP (and OW). The litigation may consider the exclusion from special diet benefits of people with schizophrenia who are taking certain types of medication.

Many people said that service providers did not take into account their individual disability-related needs. Appointments may be made at points of the day where people cannot attend, due to disability-related symptoms. Some said that difficulty with memory and difficulty concentrating or in expressing oneself due to a disability can make it difficult for people to “state their case” to a caseworker, resulting in delays in receiving services. We also heard how negative attitudes on the part of workers towards service users were common, and many people felt they were treated as if they were “taking advantage” of the system.

Strict conditions or complex procedures for reapplying for public assistance may create barriers for people with mental health issues and other episodic disabilities by making it difficult to access the system repeatedly. In the case of OSAP, the University of Guelph’s Human Rights Office notes that students may have to withdraw from semesters due to disability, and they may be placed on OSAP restriction. They are limited to one life-time appeal of this restriction, which may be difficult due to the unpredictable nature of their mental health issue or addiction.

Other concerns were raised about Ontario Works and ODSP in relation to people with addictions. After the decisions in Tranchemontagne, the Government of Ontario started to allow people whose sole disability was an addiction to be eligible for ODSP. However, even with a doctor’s determination that a person’s addiction constitutes a disability, ARCH said that it can be very difficult to be accepted as eligible for ODSP, and applicants often have to go through the appeal process to dispute their rejection. Others expressed concerns that people with addictions are subject to greater monitoring than other people receiving OW benefits, and that if a person misses attending their mandated addiction program due to relapse, benefits will eventually be pulled.[138]

Recommendation:

31. The Commission for the Review of Social Assistance in Ontario should look at inaccessibility of the social assistance system for people with mental health issues and addictions, and make sure social assistance policies and practices do not have a negative impact on people identified by Human Rights Code grounds, including mental health and addictions.

d) Health care

Box: Article 25 of the Convention on the Rights of Persons with Disabilities says that persons with disabilities have the right to enjoy the highest attainable standard of health without discrimination based on disability. This includes:

• Providing people with disabilities the same range, quality and standard of health care programs as provided to other people
• Providing health care services that are needed by people with disabilities specifically because of their disabilities
• Requiring that health care professionals provide the same quality of care to people with disabilities as to others, including on the basis of free and informed consent by, among other things, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and disseminating ethical standards for public and private health care
• Preventing discriminatory denial of health care based on disability.[139] End Box.

Primary health care

People with disabilities have the right to health care under international human rights law – and they have the right under the Code and the CRPD to be treated without discrimination when they receive health care. A large number of people made submissions about their experiences, or the experiences of people they knew with addictions or mental health disabilities, with the primary health care system, including emergency rooms, family doctors and other health care professionals.

CAMH and CMHA Ontario said a systemic issue is that people with mental health issues and addictions are less likely to receive primary health care in general, or have the same access to in-patient hospitalization.[140] People with mental health issues also reported waiting a very long time for help in emergency rooms because they may not be seen as “emergency” patients compared to people with other kinds of ailments.[141]

Another major concern was that people’s physical symptoms were not believed if service providers were aware that they also had a mental health issue or addiction. This may lead to people being misdiagnosed and to delays in treatment, their physical symptoms being inappropriately dealt with, or not being assessed at all. As a result, people related hiding their mental health issue, medications or addictions from their doctors because of fears that their physical symptoms would not be taken seriously, or they would be refused service.

We also heard that people are often assumed to be “drug seeking” when they require medical care for severe physical symptoms (PPAO).[142] One person described going to the hospital for severe abdominal pain. When the doctors found out that the person received methadone replacement therapy, the person was left alone in hospital for 10 hours, even after fainting from the pain. Doctors later determined the person needed intestinal surgery. The Psychiatric Patient Advocate Office (PPAO) said that clear policies and procedures are needed or else the stigma associated with psychiatric issues, including a disproportionate emphasis on public safety and security, will overshadow non-psychiatric problems and create barriers to primary care.

A notable theme was that many physicians, even general practitioners, refuse to treat people with psychosocial disabilities, often because their needs are seen as “too complex.”

I was desperate for a doctor and when I filled out the form she said that she did not accept patients who have a mental illness. I had to beg her and promise I would just come for a yearly physical to get my birth control pills. I never go to her except once a year. I use the walk in clinic and Urgent Care as well as Telehealth. – Survey respondent

We heard about the reluctance of some doctors to work with people with certain mental health disabilities or addictions, and that people with eating disorders, bipolar disorder and borderline personality disorder were turned away by general practitioners and mental health professionals, including psychiatrists, based on disability. We heard that some doctors may not want to take on patients who have a history of addiction because of negative stereotypes about people with addictions. Doctors may also lack the training to address these needs.

Concerns about service refusal have been documented in the Kirby report and in the Ministry of Health and Long-Term Care’s province-wide mental health consultation. Contributing to this problem may be funding models that may promote seeing patients as quickly as possible and seeing healthy patients. As a result of its own provincial consultations on mental health, the all-party Select Committee on Mental Health and Addictions recommended that, “The MOHLTC should examine further changes to the family physician remuneration model to focus on improving access to and the quality of primary care for people with mental illnesses and addictions.”[143]

In its policy on accepting new patients, developed with input from the OHRC, the College of Physicians and Surgeons of Ontario (CPSO) states that patients should be accepted on a first-come, first-served basis. Scope and clinical competence are grounds for limiting patients’ entry into a practice. However, these grounds must not be used as a means of unfairly refusing patients who are perceived to have complex health care needs or to be “difficult.”[144]

Recommendations:

32. The College of Physicians and Surgeons (CPSO), the Ministry of Health and Long-Term Care, should consult with the OHRC and disability groups, to increase compliance with the CPSO’s policy on accepting new patients.

33. The College of Physicians and Surgeons of Ontario  should review its complaint policies and procedures and eliminate barriers that may make it difficult for people with mental health and addiction issues to complain about poor professional practices.

34. The College of Physicians and Surgeons of Ontario, the Ontario Medical Association, the Ontario Hospital Association and the Ministry of Health and Long-Term Care should train doctors and medical students about their obligations under the Code to not deny service to people based on Code grounds.

OHRC commitments:

C20. The OHRC will be available to consult with the College of Physicians and Surgeons and the Ministry of Health and Long-Term Care on increasing compliance with the CPSO’s policy on accepting new patients.

C21. The OHRC, where appropriate, will use its mandate to launch public interest inquiries, seek to intervene in cases, and/or launch Commission-initiated applications to actively challenge cases where doctors allegedly deny service delivery to people based on mental health or addiction disabilities.

Mental health care

Some consultation participants related their positive experiences within the mental health system, describing it as “life saving,” and reported how they were treated with respect by supportive empowering doctors and staff. However, many others reported negative experiences, specifically with the hospital system, noting concerns about labelling patients, over-relying on medication, depriving them of liberty and inappropriately using restraints. Some representatives of psychiatric institutions said that in understanding the concerns that were raised about the psychiatric system, we must consider the provisions in the Mental Health Act and other guiding legislation, which allow for restricting people’s rights in certain circumstances. In Ontario, people with a mental disorder can be institutionalized against their will if they are a danger to themselves, other people, or may unintentionally injure themselves, or if the person’s condition is deteriorating and they require hospitalization.[145] Some service providers said it is a challenge to balance potentially conflicting health and safety concerns for individuals and the community, with the individual’s rights.

Some consultees were concerned about their family members being turned away from involuntary admission into hospital because they did not meet the criteria under the Mental Health Act. Some people said that they were prevented from learning about family members’ medical information without the person’s consent. The Ministry of Health and Long-Term Care has agreed to set up a task force to determine if existing mental health and privacy laws need to be changed to take these concerns into account.

• International concerns about mental health institutions:

In Ontario, there are several safeguards embedded in legislation and institutional policies to protect against the ill-treatment and abuse of people with psychiatric disabilities and addictions. These include methods of appeal of involuntary admission to hospital and other consent and capacity issues, providing rights advice and advocacy, complaint mechanisms, and establishing patients’ bills of rights.

However, we heard that human rights violations still occur. Whether or not these concerns represent inequitable treatment of people based on disability or other Code grounds, they may still reflect people’s broader rights under the Charter and international law to autonomy, liberty and physical or mental integrity.

The vulnerability of people with disabilities in mental health and other institutions and the potential for human rights abuses has been recognized internationally.[146]In 2008, the UN Special Rapporteur on Torture, Manfred Nowak, in his interim report on torture and other cruel, inhuman or degrading treatment or punishment, raised concerns about persons with disabilities worldwide being subjected to indignities in segregated settings such as prisons, social care centres, orphanages and mental health institutions.[147]

The Special Rapporteur raised concerns about the prolonged use of restraints and solitary confinement or seclusion of people with disabilities across the world, which may constitute torture or ill-treatment.[148] He also said that intrusive types of medical interventions such as electroconvulsive therapy must be based on free and informed consent, and that the forced administration of psychiatric drugs, particularly neuroleptic drugs (which are often used to treat psychosis), needs to be closely scrutinized. Depending on the circumstances of the case, and without free and informed consent, the suffering inflicted and the effects upon the person’s health may constitute a form of torture or ill-treatment.[149] The Special Rapporteur went on to state that involuntary treatment and involuntary confinement specifically run counter to the provisions of the Convention on the Rights of Persons with Disabilities (CRPD) and that these provisions complement other conventions that prohibit torture.

• Rights to liberty and security of the person and involuntary admission criteria:

The CRPD sets out rights and obligations that relate to the issues the OHRC heard about in the consultation. The CRPD can provide guidance on how mental health laws, policies and programs should be designed to provide for equal treatment for people with disabilities. Article 14 (liberty and security of the person) guarantees the right of people with disabilities to not be deprived of their liberty unlawfully or arbitrarily; that any detention be in accordance with the law; and that the existence of a disability shall in no case justify a deprivation of liberty.[150] The 2009 annual report of the United Nations High Commissioner for Human Rights provides this interpretation of Article 14:

Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished. This must include the repeal of provisions authorizing institutionalization of persons with disabilities for their care and treatment without their free and informed consent, as well as provisions authorizing the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness.

This should not be interpreted to say that persons with disabilities cannot be lawfully subject to detention for care and treatment or to preventive detention, but that the legal grounds upon which restriction of liberty is determined must be de-linked from the disability and neutrally defined so as to apply to all persons on an equal basis.[151]

Based on the feedback we heard, the provisions of Article 14 and other articles in the CRPD, Ontario’s mental health legislation requires a careful review. The Law Commission of Ontario is developing a tool to evaluate legislation that affects people with disabilities to ensure closer alignment with the principles of domestic human rights law and the CRPD.[152]

• Rights to legal capacity and supported decision-making models:

The rights guaranteed under Article 12 of the CRPD also need close examination and review as they relate to decision-making support for people with psychosocial disabilities, and determining people’s capacity to make certain types of decisions. Article 12 recognizes that people with disabilities are individuals before the law and have legal capacity “on an equal basis with others in all aspects of life.” According to the UN High Commissioner of Human Rights, this provision does not provide any exception.[153] Under Article 12, States Parties are to take steps to provide access to the supports that people with disabilities may require to exercise their legal capacity. The UN High Commissioner of Human Rights argues that deprivation of legal capacity based on a perceived or actual mental illness or psychosocial disability may constitute a violation of the obligations set out in article 12.[154]

Canada has put forth a declaration and reservation about Article 12, indicating that it reserves the right to continue using substitute decision-making arrangements subject to appropriate and effective safeguards.[155] Generally under Canada and Ontario’s system of guardianship, if someone is deemed to lack capacity to make decisions in a particular area, such as making decisions about their finances or personal care, these decisions are made by a substitute decision-maker, acting on a person’s behalf.[156]

Nevertheless, Article 12 requires that appropriate measures be taken to provide the person with the support they need to make decisions, [157] such as making sure a person has access to a network of people who can help. Some disability groups and scholars have argued that to achieve true substantive equality, providing supports as much as possible to help people make decisions should be recognized as part of an organization’s legal duty to accommodate.[158]

Recommendation:

35. In light of the supports required under the Convention on the Rights of Persons with Disabilities, and the provisions of Articles 12 and 14, the Government of Ontario should review and evaluate all laws, policies and standards relating to mental health in consultation with disability groups and other stakeholders to ensure equity for people with psychiatric disabilities or addictions. This review should include Ontario’s system of guardianship and involuntary admission criteria.

• Dignity and autonomy issues:

Issues of freedom of choice and respect for dignity featured highly in people’s experiences with the mental health system and forensic mental health settings. Some consultees said that they felt dehumanized and “warehoused” and that their concerns were not dealt with at all by their stays in hospital. We heard that there is sometimes an adversarial sentiment between staff and patients in hospital settings. Some people reported being strip-searched in front of both male and female staff. In extreme cases, people reported being harassed, assaulted or sexually assaulted by staff.

Doctors only look for what's "wrong" with us ... they're trained to only look for pathology, and so see most problems as a pathological one that need medication and the person needs to be totally "compliant" with the inadequate medication that's being prescribed. I think it's discriminatory to only look for pathology, as it treats all people coming within a psychiatrist's care as someone who needs to be medicated, controlled, and "less capable" than others, leading to a treatment model that's flawed from the very start of the analysis.

 – Survey respondent

People described being treated as if they were less intelligent and less capable of making decisions. They told us they were talked to in a patronizing way, and left out of treatment decisions involving their medical care, even where they were capable of being involved. We also heard about the concerns people had about the therapeutic treatment choices offered within the mental health system. Although some individuals identified the positive benefits they experienced when taking medication, others raised issues with certain treatment methods including anti-psychotic medication and electroshock therapy, particularly where these may have negative side effects. People also described feeling that they have little choice to access alternative, non-medication-based care.

A significant theme was raised relating to the system of “privileges.” As reinforcement for certain behaviours, people receive increasing levels of freedom and responsibility within the institution. Although we heard that this approach is commonly used in mental health hospitals and forensic mental health settings, individuals and organizations raised concerns that decisions about privileges may be arbitrary, inconsistent across staff, used for punishment purposes for not following staff’s rules or the treatment provided, and detract from patients’ dignity by removing their rights to make their own choices.

Advocates were concerned that people receive punishment for minor offences, and the rationale of safety and security are used even if these are not legitimate. We heard that in some settings, going out for fresh air, wearing one’s own clothes or being able to communicate with others by using cell phones are privileges that must be earned or can be taken away. Patients’ access to these or other privileges may be affected by the levels of staffing available.

A great deal of value appears to be placed on patients in the mental health system who are “compliant.” Because of power differences between patients and staff, people may not be encouraged to ask questions about their care, protest poor treatment or seek advice, where it is available. This also deters people from making complaints based on Code grounds or asserting their rights in other ways. Such an atmosphere of expected compliance may be built into the culture of an organization. In the Kirby report, the Senate committee said that in general:

Pejorative labels such as non-compliant, manipulative, difficult to direct, hard to serve, attention-seeking or interfering (for family members) have discredited assertive behaviours and have further silenced people.[159]

People in mental health institutions have identified that they are afraid to complain about mistreatment because they fear losing their privileges, or not being believed. For example, one person said that she and other women experienced sexual harassment during hospitalization and that their reports were not believed because this was perceived to be “part of their illness.”

If this type of atmosphere exists, organizational shifts may be needed to make sure people are always treated with respect. This feedback highlights the importance of having people in hospitals with expertise in human rights who can ensure that patients receive the appropriate support, advice about their legal rights, and can get guidance on making human rights-related complaints.

• Treatment and informed consent:

The Ontario Court of Appeal, in Fleming v. Reid, affirmed a competent person’s right to determine what should be done with his or her own body, and the right to be free from non-consensual medical treatment. As well, the case found that if a person becomes incompetent, his or her prior wishes about treatment that were expressed while he or she was competent cannot be overridden. The court made the comparison that people in a psychiatric facility have just as much right to refuse to take a doctor’s advice or medication as patients who have physical illnesses. Hospitalizing someone against their will does not automatically make them unable or incompetent to make treatment decisions. The court recognized that, “Mentally ill persons are not to be stigmatized because of the nature of their illness or disability; nor should they be treated as persons of lesser status or dignity. Their right to personal autonomy and self-determination is no less significant, and is entitled to no less protection, than that of competent persons suffering from physical ailments.”[160]

A number of consultees and advocates said that they or people they knew received treatment against their wishes while they were hospitalized for a psychiatric disability. Unless one has been found to lack the mental capacity to make treatment decisions, everyone has the right to refuse to consent to treatment.[161] The Empowerment Council noted that many people in institutional settings are unaware of their rights to consent to or refuse treatment, despite these being outlined in the Health Care Consent Act.

Some people reported not understanding or not being told of the side effects of the medication they were taking. Some said they were not formally told about their diagnosis by a medical professional, or they were not immediately told that they were under a Form 1 (involuntarily detained in hospital for up to 72 hours for a psychiatric assessment). We also heard concerns about people who arrived voluntarily at hospital but were kept on locked wards. People also said they were “coerced” into taking medication because they were told that they would not be able to leave hospital until they took it. Where providing treatment is linked to the denial of services or differential treatment in services based on disability, this raises questions about whether people are actually able to refuse treatment and raises Code concerns.

ACE told us that in long-term care homes, older adults, or their substitute decision-makers (if older adults are deemed incapable) are often not informed of their rights to refuse to consent to treatment. ACE says that it commonly receives complaints from substitute decision-makers who are concerned about a mentally incapable person in a long-term care home being given medication they know nothing about. To protect the security of persons by educating them about their legal options after a finding of incapacity, ACE recommended reinforcing the Health Care Consent Act by setting out in regulation a duty for health practitioners to provide specified rights advice, including providing notice to the person about a finding of incapacity, and providing information and assistance with respect to making appeals to the Consent and Capacity Board.

• Community treatment orders (CTOs) and Assertive Community Treatment Teams (ACTTs):

Additional concerns were raised about CTOs and ACTT planning. ACTTs oversee treatment of people in the community, and ACTT planning may be used to divert people out of the criminal justice system. We heard that these measures may treat people with psychiatric disabilities in a way that is restrictive based on disability, without making sure that these restrictions are legitimately connected to the purpose of the program or people’s individual circumstances. Conditions of community treatment orders may include curfews, prohibition on contact with people under a certain age, restrictions on taking public transit, or conditions that are linked to a person’s tenancy. The PPAO said that restrictions in ACTT plans may have nothing to do with the initial offence. The PPAO said that these restrictions may be put in place as a condition of insurance arrangements, instead of an assessment of real risk.

Some people saw CTOs generally as coercive mechanisms to get people to seek or maintain treatment. In a 2005 review of the effectiveness of CTOs, the conclusions were divided. Some people described the positive aspects of being on a CTO, including increased stability that allowed people to stay outside hospital and the ability to reintegrate into the community. However, others said that any benefits were outweighed by the loss of personal autonomy and control.[162]

• Use of restraints:

One person described her hospital experience following an intentional overdose:

… After the [psychiatric] assessment, I started crying quietly and the psychiatrist ordered 4 mg of Ativan [anti-anxiety medication]. I dislike taking medication unless I know exactly what it is, but she wouldn't tell me what the side effects were or how I could expect to feel after taking the medicine. She said that I had to take it because I was too high-strung and because she needed to make sure she kept the other patients safe. That didn't make sense to me because I was laying quietly (except for the occasional sniffle) in the bed and had not been violent (verbally or physically) at all during my entire stay. … I told the nurse that I did not want to take the 4 mg of Ativan and she said that my alternative was to be physically restrained with the leather restraints attached to the bed. Needless to say, I chose the chemical restraint.

      – Survey respondent

The College of Nurses of Ontario defines restraints as physical, environmental or chemical measures used to control the physical or behavioural activity of a person or a portion of his/her body. Physical restraints limit a person’s movement. Environmental restraints control their mobility (such as a secure unit, seclusion or “time-out” room). Chemical restraints are any form of psychoactive medication used not to treat illness, but to intentionally inhibit a particular behaviour or movement.[163]

We heard that restraint policies and practices involving people with psychiatric disabilities are not uniform across the province.[164] Patient advocates and hospital sector representatives said that there is little provincial oversight of restraint use in Ontario. Service providers such as Ontario Shores told us that promoting consistent and appropriate guidelines on seclusion/restraint use should be a goal within this sector.

Currently, restraint use is allowed in some circumstances, such as where it is necessary to prevent serious bodily harm to the person or other people. Many people in the consultation expressed serious concerns about their or other people’s experiences of being restrained in a health care setting due to a mental health issue, and reported that they believed these restraints were used inappropriately. Some people told us about people being restrained for hours or days at a time. Some indicated that they weren’t checked on by staff. In one case, a person described how her son was not let out to use the washroom after being physically restrained for eight hours.

We also heard that restraints or seclusion may be used to address patients who are seen as non-compliant with staff’s directions or treatment. Some felt that restraints were used as a response to low levels of staffing (for example, with older adults with Alzheimer’s in long-term care).[165] We heard that the use of physical restraints has particular disadvantaging effects on people with hearing disabilities because they are prevented from communicating using sign language.

Concerns about restraints have been raised in previous reports and inquest findings. The Canadian Institute of Health Information released its report on the use of restraints on people admitted to a designated mental health bed between 2006 – 2007 and 2009 –2010. It found that almost one in four people experienced some form of restraint.[166] In 2005, Jeffrey James died in hospital after being physically and chemically restrained and secluded for several days. As a result of the inquest into his death, the Coroner of Ontario recommended that all psychiatric hospitals aspire to provide restraint-free care and ensure greater involvement of patients and advocates to manage any risk factors before restraints could be used.

Also as a result of this inquest, the Registered Nurses Association of Ontario has developed clinical best practice guidelines on the use of restraints.[167] It notes that, “there is insufficient evidence to support the use of restraints including seclusion for short-term management of disturbed/aggressive behaviour in adult psychiatric settings.” The guide supports the use of restraints only after all other de-escalation methods have been tried and have been proven ineffective.[168]

Restraint policies and practices could constitute Code violations where restraint use is based not on real health and safety risks, but on stereotyping based on one or more Code grounds, or if restraints are disproportionately applied against people based on Code grounds where they are not warranted. For example, if an African Canadian man with a psychiatric disability is restrained based on stereotypical perceptions relating to his race and disability, instead of imminent health and safety risks, this could represent a violation of his rights under the Code. Using restraints as a last resort after other de-escalation methods have been used, using appropriate assessments of risk, and implementing safeguards and monitoring may avoid human rights abuses.

Recommendation:

36. The Government of Ontario should create provincial rules and oversight mechanisms for the consistent use of restraints on people with mental health or addiction disabilities, with the goal of using restraints only as a last resort.   

37. The Office of the Chief Coroner of Ontario should conduct a mandatory inquest into the death of any psychiatric patient who dies in psychiatric facilities or hospitals while exposed to chemical or environmental restraint (seclusion).

• Protecting human rights in the psychiatric system:

Representatives of mental health institutions and hospitals, including the OHA, said that there has been a “fundamental shift” in attitudes towards people with mental health disabilities in the psychiatric system. For example, organizations said they now take into account the philosophy of recovery, they take part in developing Patients’ Bills of Rights, and they fund patient and family councils that can advocate on behalf of people whose rights have been violated. Service providers pointed to legislation such as the Excellent Care for All Act, which promotes “client-centred” care and requires obtaining feedback from service recipients in the form of client satisfaction surveys to evaluate and improve care. Some hospitals reported that they developed a series of policies and training sessions that promote respect for rights (Ontario Shores). Finally, the CPSO has produced several policies and procedures, including a complaint procedure, that take into account professional and human rights responsibilities towards patients.

Even with these positive advances, we heard that it is extremely difficult for people to meaningfully enforce or even be aware of their rights within the psychiatric system. For systemic change to occur within the system, consultees said that more education is needed to challenge negative attitudes, particularly in medical schools. Suggestions on how to increase compliance with policies and procedures included:

• Monitoring client satisfaction and measuring potential inequities in care for Code-protected groups
• Tracking how well hospitals are implementing clients’ Bills of Rights
• Supporting the use of advocates for clients
• Supporting greater peer support options in the mental health system
• Making sure that service users are represented in all aspects of decision-making, from the hospital boards to front-end services
• Making compliance with human rights policies and practices a requirement of hospital accreditation and staff evaluations.

The Empowerment Council told us that rights granted to people with psychiatric disabilities and addictions should be measured using an integrated reporting and assessment mechanism. Representatives from the hospital and medical sector were largely supportive of further data collection based on Code grounds as a key piece of measuring inequality in care or treatment.

Recommendations:

38. All hospitals, working with disability groups and the Psychiatric Patient Advocacy Office, should review and monitor the privilege system to ensure that people with mental health issues are responded to with dignity and equitably based on Code grounds and that other human rights concerns are also avoided. 

39. All hospitals with psychiatric beds, in conjunction with the OHRC, the Ministry of Health and Long-Term Care, the Psychiatric Patient Advocacy Office, consumer/survivor groups and other appropriate stakeholders, should identify how to collect data based on Code-grounds to measure if people from Code groups are treated differently in the use of seclusion, restraints, when deaths occur, and other relevant health care issues regarding patients with mental health issues. The OHRC’s guide, Count me in: Collecting human rights-based data, can help in this regard. Any data collection measures must ensure people’s dignity and protect people’s privacy.

40. As required by the AODA, all hospitals should develop human rights policies, accommodation policies and complaint procedures for serving and employing people with psychosocial disabilities, as well as other Code-protected groups.

41. Hospitals should regularly promote and give training on human rights policies and procedures to staff and patients so everyone knows their rights and responsibilities.

42. Hospitals should work with patients, patient groups and the Psychiatric Patient Advocacy Office to identify and remove barriers to making internal complaints in a hospital setting.

43. The Government of Ontario and all hospitals with mental health beds should introduce an independent ombuds system that can take discrimination and broader human rights related complaints from people in the psychiatric system, investigate these, and make findings.

44. All hospitals should ensure that no capable person is forced to receive psychiatric treatment, as per the Health Care Consent Act and the CRPD.

OHRC commitments:

C22. The OHRC will invite a provincial psychiatric institution, as well as other partners with human rights expertise in mental health, including consumer/survivor organizations, to engage in a large-scale organizational change process to address human rights concerns in service delivery to people with mental health disabilities, addictions, as well as other groups protected by the Code. Such a process may, among other things, involve a review of internal policies and practices, to identify and remove any discriminatory barriers.

C23. The OHRC will work with hospitals, the MOHLTC, consumer/survivor groups and other appropriate stakeholders to identify how to collect human rights-based data to measure disparities between Code groups in the use of seclusion, restraints and other relevant health care issues. Any data collection measures must ensure people’s dignity and protect people’s privacy.

e) The criminal justice system

Police

Many individuals and organizations commented on the role of police in responding to people with mental health issues and addictions. The Provincial Human Services and Justice Coordinating Committee (PHSJCC) said that more community resources must be put in place in urban and rural areas so that police are not the default responders to people with mental health crises. In 2011, the Ontario Association of Chiefs of Police passed a resolution that supports de-emphasizing the role of police in mental health and addiction cases, because people are best served by health care professionals in the community.[169] One police representative stated that when police respond to people who are mentally ill it perpetuates stereotypes that people are a risk to others.

Other participants in the consultation reported that in their interactions with police, they were either underserviced or responded to in inappropriate ways based on disability. For example, many consumer/survivors remarked that when police are aware that the individual making the complaint has a mental health issue, they tend to dismiss the person’s allegations or not take appropriate action.

If you have a known mental illness, the [police] disregard anything you have to say. I no longer call them for assistance (I live in a really bad neighbourhood) and just keep bats at my door to protect myself and my son from break-ins. – Survey respondent

In addition, we heard that police are not properly trained to de-escalate situations where people experience a mental health crisis. The Metro Toronto Chinese and Southeast Asian Legal Clinic (MTCSALC) stated that since the 1997 shooting of Edmond Yu, a person with a mental health issue, “there has been little change in police practices in this respect. Reports of police harassment, the use of excessive force, and the overcharging of people with mental health issues remain unabated.” CMHA Ontario said that persons with mental illness are more likely than others to be approached or arrested for minor or “nuisance” offences such as “trespassing” or “disorderly conduct.” It added that the “number of people with mental disorders who come into conflict with the justice system is increasing at the rate of about 10 percent a year, though the number of those considered violent is actually declining.” [170]

Many people raised concerns about treatment by police, especially the use of force, when they experienced crisis episodes and needed to be taken to hospital under the Mental Health Act. [171] In May 2012, after several people with mental health disabilities were lethally shot by police, the Minister of Community Safety and Corrections announced an internal government review of how police respond to people who may be experiencing a psychiatric crisis.[172]

When ill and needing to be hospitalized, I was treated in what I would call a brutal manner by the police who responded to the 911 call. I was ill, not engaged in any criminal activity. As an ill person, I should have been transported by medical personnel, in an ambulance, not in a police car with handcuffs.  – Survey respondent

I called the police to come pick up my son and take him to the hospital (I had a court order) …They arrived with Tasers and I was told they would use them if necessary … What do you think will happen when four or five police officers arrive to pick up an individual with a mental illness (who is very frightened) and the officers have their hands on Taser guns. – Survey respondent

CMHA Ontario was concerned about the tendency for law enforcement to use Tasers (conducted energy weapons) on people experiencing a mental health crisis or showing signs of emotional distress. They recommend that in addition to using crisis intervention teams to appropriately respond to people in crisis, police services in Ontario must limit their use of Tasers to situations where the alternative would be use of deadly force. CMHA Ontario recommends that police services monitor and publicly report the incidence and outcomes of Taser use. In addition, it calls for independent research to be conducted into the safety of Taser use, including the effects on persons experiencing a mental health crisis.[173]

Many consultees voiced their support for crisis response teams. Several police services across Ontario work collaboratively with community agencies to establish these teams, in which crisis response workers attend with police as a way to de-escalate situations when people experience psychiatric emergencies. The York Support Services Network and York Regional Police told us that their mobile crisis response team has had a considerable impact on the attitudes among police about persons with mental illness, and on attitudes within the local community about police. Police officers in general can play an important role in accommodating people’s disabilities by diverting people with psychosocial disabilities away from the criminal justice system when offenses are minor and appear to be linked to a psychiatric disability.

Other consultees noted some drawbacks to these teams. We heard that tensions may escalate between an individual experiencing a crisis if uniformed police officers respond first, before the crisis response worker. As well, crisis response teams are not available in all regions at all times of the day. We also heard that the type of training provided to crisis response teams should be made more broadly available to all police, given that dealing with people in psychiatric distress is a core part of their work, and that by having specialized police services, it reinforces the idea that the consumer/survivor community is separate.

We heard that people with mental health issues or addictions may be singled out by police for harassment or forceful treatment for exhibiting behaviour related to disability, or for having a known mental health issue. One person spoke of being “aggressively” accused by police of “snorting” drugs for making sniffing noises, when this was a tic related to having Tourette syndrome, and stated,

It made me very aware that this officer made an assumption by first sight. To me it’s the same as seeing someone who is diabetic, maybe their insulin is low, they start acting like they’re drunk. Police need to have more awareness of symptoms. – Focus group participant

Some police services, such as the Toronto Police Service, have set up mental health consultative groups to provide community input on policing issues related to people with mental health issues. If given the appropriate mandate, these bodies can play a powerful role by examining themes and trends, weighing in on complex issues and helping to guide service delivery that upholds human rights.

Recommendations:

45. The Ontario Police College and police services should provide training to new and seasoned police officers on human rights and the duty to accommodate people with mental health issues or addictions. All officers, including new recruits and seasoned officers, should also receive training in crisis response de-escalation techniques used by specialized crisis response teams.

46. Police services should set up community committees, which include consumer/survivors and people with addictions, to advise police about issues relating to mental health and police service delivery.

47. Police services should develop police policies and protocols that address human rights and policing issues as they relate to people with mental health disabilities and addictions. 

48. Police services should collect data to identify any inequities in the treatment of people with perceived or known mental health disabilities or addictions compared to people without mental health disabilities or addictions.

OHRC commitment:

C24. In its work with police services in Ontario, the OHRC will raise issues about discrimination against people with mental health or addiction disabilities in service delivery, and will work with police to build capacity to address these concerns.  

Courts and legal representation

Yes, people warn you, “don't go to court you will not be able to handle the stress.” And people exploit you as they know that you are mentally not up to the mark. – Survey respondent

Among the concerns raised about accessing justice through the court process was that it was very difficult for some people with psychosocial disabilities to gain access to legal support, because they could not afford legal counsel and had difficulties accessing the application process for Legal Aid. Without legal representation, people with mental health issues may be doubly disadvantaged if they appear in court while experiencing psychiatric symptoms. This issue was also a concern for people going through tribunal processes.

Judges would ask, “Do you understand what we were asking you?” I had mental [health] issues and I was facing criminal charges. I didn’t have a lawyer. His questions were twenty minutes long. I couldn’t understand what he was saying. – Participant in Toronto roundtable session

Other issues were raised about equal treatment in the legal process. Some people were concerned that a witness’s mental health issue can be exploited by counsel on the opposite side, leaving people to feel victimized or leading to the person losing their case. We also heard that lack of education and awareness of mental health issues and addictions among decision-makers and court personnel was also a concern.

Most of my clients are also involved with the justice system, and it's really scary when you are in front of a judge explaining your clients' mental issues and the judge is not even familiar with the different forms of mental health issues such as ADD [attention deficit disorder], OCD [obsessive/compulsive disorder], ODD (oppositional defiant disorder), etc.   – Survey respondent

A representative from Ontario’s court system said that efforts are being made to make courts more accessible. For example, courthouse accessibility co-ordinators can take requests for accommodation. Plain language is being increasingly used for key documents for the public, and where a service counter environment is noisy, people have been given quieter spaces to have conversations. With judicial approval, hearings can be rescheduled to accommodate people’s symptoms if needed. Other types of accommodations that may be required in a court or in any decision-making process include private hearings, adjournments where needed, pre-hearing conferences, and human support to connect to legal services.[174]

• Diversion courts:

Although the programs differ across regions, mental health and “drug court” diversion court programs were developed to provide mental health services and supports to people with mental health needs and addictions who are in contact with the justice system. A person may be eligible for diversion court if their alleged offense is considered to be low-risk and their health needs can be met through community-based services. Diversion courts are designed to “divert” people from the corrections system which has not been able to adequately address mental health-related needs.

Clients can voluntarily take part in the program. However, one legal academic said that mental health courts were created because of inadequacies of supports in the community, and that they emerged out of a discriminatory environment in the criminal justice system. The Empowerment Council stated that the efficacy of diversion courts in upholding individuals’ rights needs to be established empirically.

Many people told us that diversion courts have made a positive impact in successfully diverting people from the criminal justice system into the mental health system. However, the MTCSALC said that not everyone who would benefit from diversion court is able to access it, because not everyone with mental health issues is being identified by the police or crown attorneys. It stated that, “those with undiagnosed issues will end up in the regular criminal court facing a potentially harsher sentence for their ‘crime’.”

The Provincial Human Services and Justice Coordinating Committee told us that court support programs do not have the ability to handle more complex cases, including people with concurrent substance use disorders, or a co-occurring dual diagnosis (intellectual disability). It suggests that an estimated 80% of people referred to mental health services from the justice system have an addiction problem or concurrent disorder.

Other consultees had concerns about the “separate” nature of the diversion court system, and told us that a more integrated and equitable approach would be to ensure that any need for accommodation based on disability is dealt with through a regular trial. We heard about concerns about the degree to which the courts assess people on an individualized basis and provide appropriate treatment plans. One representative from a consumer/survivor initiative said that people are left out of decisions about what they need, and that treatment plans can place restrictions on the types of services the person has to use.

Recommendations:

49. The Canadian Judicial Council and the National Judicial Institute should provide training to all judges on human rights and accommodating people with psychosocial disabilities during the hearing process.

50. The Ministry of the Attorney General, the Law Society of Upper Canada and the Ontario Bar Association should arrange training for lawyers and court staff on human rights issues and accommodating people with mental health issues or addictions during the hearing process.

51. The Ministry of the Attorney General and Legal Aid Ontario should examine their policies, processes and practices and remove barriers to access and improve accommodation for users with mental health issues or addictions.

Corrections system                    

The jails are the worst place to be mentally ill. They are not equipped to deal with the situation. A person could have a manic episode – yelling and stuff. The only thing the guard can do is tell you to shut up and put you in seclusion. That makes it so much worse. Once I was in trouble in the jail, they couldn’t figure out what to do with me, I was in seclusion and I just got worse. Eventually I got sent to a place that blends nursing and jails. That place saved my life.

 – Focus group participant

In its 2008-2009 annual report, the federal Office of the Correctional Investigator, which acts as an Ombudsman to federal offenders, noted the comments of the federal Minister of Public Safety, who stated that over the past 30 years, Canada has progressively moved toward a community and outpatient system of "de-institutionalizing" the mentally ill from provincial facilities, only to discover that it is "re-institutionalizing" them as prisoners, thereby suggesting that Canada is "criminalizing the mentally ill." [175] The report goes on to state that 39% of inmates in Ontario have been diagnosed with a mental illness, have a current medication order in effect, or are receiving ongoing psychiatric evaluation or psychological intervention. For persons with addictions in the federal justice system, 50% of Canadian offenders report substance abuse as a cause of their offence.[176]

Consultees were concerned that many people with psychosocial disabilities were in prison for relatively minor offences. Many people were particularly alarmed that certain Code-protected populations are highly represented in the corrections system, including racialized and African Canadian men, Aboriginal Peoples, people with learning disabilities and people with fetal alcohol spectrum disorder, which can reflect systemic discrimination against these groups.[177]

A major issue was the lack of availability of adequate mental health services for people in the corrections system (OHA) and limited access to physicians or treatment. We also heard concerns that people with some psychiatric disabilities may not be properly accommodated in the prison system by experiencing unwarranted interruptions in their treatment – for example, by not being given medication they need. Consultees were concerned that these types of practices can be dangerous for people’s conditions. The OHRC is aware of concerns that people in correctional facilities may have limited access to commonly prescribed medications, and may have their existing treatment plan altered without an in-person assessment by a physician.

The Provincial Human Services and Justice Coordinating Committee told us there are more clients on remand in Ontario than people who have been convicted, and many of them have a mental health issue and/or addiction. However, these individuals are not receiving psychiatric assessments mandated by the court, or adequate mental health or addiction services while awaiting their trial date, particularly in rural areas.

In June 2012, the UN Committee on Torture raised concerns about the state of prisoners with mental illness in Canada. To conform with UN standards, it said that Canada should, among other things, increase the capacity of medium and acute mental health treatment centres for prisoners, and abolish solitary confinement for people with serious mental illnesses.[178]

OHRC commitment:

C25. The OHRC, in its human rights work with the Ministry of Community Safety and Correctional Services (MCSCS), will include as a focus concerns about the lack of accommodation of people with mental health issues and addictions, particularly as these intersect with other Code grounds including race and related grounds, other forms of disability, and sex.

Criminal records

People with mental health issues or addictions may receive a criminal record after going through the court process for incidents relating to their disability, such as disorderly conduct or more serious offences. Many concerns were raised about the profound impact that a criminal record has on a person’s ability to get housing, employment, volunteer work and services - such as post-secondary education, physicians, psychiatrists or community mental health programs (OHA, Provincial Health and Services Justice Coordinating Committee). The Code prohibits discrimination in employment against someone who has a criminal record but has received a pardon. This type of protection is narrow and does not exist in other social areas covered by the Code.

The Metro Toronto Chinese and Southeast Asian Legal Clinic said that having a criminal record will have further effects on a person who is racialized. Permanent residents may face deportation even if the criminal record stems from behaviour that is linked to a disability. Pardons can be difficult to get if a person has low income, which may also have an adverse effect on people with mental health disabilities or addictions.

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