Mandatory Drug Testing
December 14, 2000
Hon. John Baird
Minister of Community and Social Services
6th Floor Hepburn Block 80 Grosvenor Street
Toronto, Ontario, M7A 1E9
Dear Mr. Baird:
The Psychiatric Patient Advocate Office (PPAO), a program of the Ministry of Health and Long-Term Care to advance the rights of psychiatric patients, is writing to express concern regarding the proposal for mandatory drug testing and treatment of individuals who are in the "Ontario Works" program. These concerns include tying a person's income to their co-operation with mandatory drug testing and to their agreement to engage in treatment in order to continue to be eligible for financial assistance. The two should not be linked. The intrusiveness of the testing raises concern as does the arbitrary testing being imposed on one class of people. Addiction is only one barrier to employment and affects only a small percentage of the "Ontario Works" population. The barriers to employment that we have identified have a far greater impact on "Ontario Works" clients and perhaps the Ministry of Community and Social Services should focus their energy and resources on addressing these instead.
Treatment cannot be given without informed consent and in an environment free of fear, intimidation and coercion. We are also concerned about the lack of an assessment process and how MCSS plans to provide individuals with access to a full range of treatment options that best suits their needs. It appears that the intent of the proposal is to force treatment on individuals who are perhaps still capable and able to make their own decisions with respect to treatment. The Health Care Consent Act provides that an individual is capable of consenting to treatment unless found otherwise by a health practitioner. If the Ministry of Community and Social Services (MCSS) believes that individuals in receipt of Ontario Works benefits are incapable of consenting to their own treatment, there are provisions in law that allow for such treatment to be given. The Health Care Consent Act permits a health practitioner to make a finding of incapacity, resulting in the Substitute Decision Maker consenting to treatment for the individual. The incapable individual would receive rights advice and have the opportunity to appear before the Consent and Capacity Board to challenge the finding. If an individual wished to have legal representation then such arrangements could be made. Such a process would protect the civil and legal rights of all individuals. The law presumes everyone to be capable unless deemed otherwise and this policy appears to violate that principle.
We have prepared the attached response and recommendations with the hope that you will consider them and abandon the proposed policy.
Sincerely,
_________________________
Vahe Kehyayan
Director
cc. Mr. D. Burns, Deputy Minister
Submission to the Ministry of Community and Social Services regarding Mandatory Drug Testing and Treatment of Welfare Recipients
Submitted by:
Psychiatric Patient Advocate Office
2195 Yonge Street, 6th Floor
Toronto, Ontario, M4S 2B2
Telephone: (416) 327-7000; Toll Free 1(800)578-2343
Website: www.ppao.gov.on.ca
December 2000
Introduction:
The Psychiatric Patient Advocate Office (PPAO), established in 1983, is an arms length program of the Ministry of Health and Long-Term Care. While we are an internal program of the Ministry we enjoy a quasi-independent relationship allowing us to speak freely to the rights and entitlements of psychiatric patients. Since its inception, the PPAO has assisted psychiatric patients in exercising and pursuing their legal rights and entitlements to ensure that those rights are not violated.
Barriers to Employment:
There are several barriers and impediments to employment that exist amongst those who are in receipt of social assistance or Ontario Works benefits. Addictions, as identified by MCSS, is only one of these barriers and impediments and affects only a small percentage of the Ontario Works population. There are others as well, which are more significant for the vast majority of Ontario Works recipients than the sole barrier identified by MCSS and must be part of any discussion about barriers to employment:
- Safe, Decent and Affordable Housing
Perhaps one of the most significant barriers to employment is the lack of safe, decent and affordable housing. Many individuals receiving Ontario Works benefits are unable to find an affordable place to live and as such wander from hostel to hostel, from friends' place to friends' place or simply live on the streets. At any given point, they could be either homeless or at risk of becoming homeless. If individuals had access to affordable and safe housing, they would be able to maintain a residence and perhaps devote more energy to finding, securing and maintaining their employment. It is hard to maintain employment when you have no place to live, no place to keep your possessions and when you have to wander around to find accommodation. Mandatory drug testing and treatment will not remove this barrier.
- An Adequate Income
Ontario Works does not provide individuals with adequate financial resources to escape the clutches of poverty or to have the self-esteem, resources or support to move forward in becoming a fully participating member of society. Instead, the individual is kept living in staggering poverty (maximum $520.00 per month for a single individual), in substandard housing and wondering where their next meal will come from. Dependence on food banks, churches and social service agencies has become an expectation in order just to survive. This probably means that the person is not getting adequate nutrition which may result in health problems, shortened life expectancy and illness, which will burden an already burdened health care system. Individuals are having to make choices between paying rent or buying food in order to survive. For most individuals this constant struggle affects both their mental and physical health and wears them down in a dehumanizing and degrading manner. Mandatory drug testing and treatment will not remove this barrier.
- Access to education and training programs
If individuals are going to be successful in finding employment, they must have access to appropriate education, training and skill development programs that meet their needs and assist them in securing and maintaining employment. Job search workshops assist with some skill development but fall short in job placement, job coaching, mentoring and providing on the job support and education to individuals. The redesign of these programs could address this barrier.
to employment and build in appropriate support services for the individual. Many Ontario Works clients lack the basic skills required to maintain and secure employment such as interpersonal skills, social and life skills or conflict resolution skills. Education would need to begin where the person was at and progress to the point when they are employment ready. Even after securing employment the support services would need to continue. Mandatory drug testing and treatment will not remove this barrier.
- Literacy
Many individuals who receive financial assistance from Ontario Works have literacy problems that make it difficult for them to find employment. Literacy is a barrier to employment that must be addressed if individuals are to be integrated into the labour force. Mandatory drug testing and treatment will not remove this barrier.
- Access to Support Services
For individuals, who receive treatment, to remain free of their addiction they will require on-going and frequent access to a broad range of support services and programs. This will require immediate access to services, no waiting lists and the ability of the service provider to respond immediately. Although there is tremendous effort to build such capacity in Ontario, such ideal conditions do not currently exist. This is especially true in rural and northern communities where individuals have even less access to services. As such, MCSS will need to ensure that programs receive adequate funding to be able to provide such services. Forcing individuals into treatment without ensuring that the corresponding supports are accessible and available would be a recipe for disaster. For individuals who are forced into treatment or made to attend simply so that they can maintain their income may put an additional burden or pressure on beds in treatment facilities, psychiatric hospitals and on other treatment resources. Additionally, with the availability of bed based care shrinking it is unlikely that a person who doesn't wish to be in a program would be detained or held in a program against their wishes at the expense of declining service to someone who voluntarily and willingly wanted treatment. A range of support services, safe houses, crisis intervention, counseling and treatment programs would need to be in place prior to the implementation of any policy. Mandatory drug testing and treatment will not remove this barrier.
- Attitudinal Barriers
Many people who live in poverty are coping with a range of personal and private issues. These issues may include: dealing with financial pressures, family pressures, inability to provide adequately for family, being a sole support parent, mental illness, unresolved personal issues, lack of education or work experience and at times addictions. Many of these individuals experience attitudinal barriers which stereotype them, lead to assumptions being made about their abilities and often blame them for being poor. These attitudinal barriers are difficult to overcome and often serve to disempower individuals and in some ways it is victimizing the victim. This proposed policy will do the same. The media often portrays those receiving social assistance benefits as undeserving, lazy and taking that to which they are not entitled. It has become fashionable for some in Ontario to perpetuate these myths and stereotypes for their own purposes, gains and exploitation. Mandatory drug testing and treatment will not remove this barrier.
- Stigma of Poverty
Some professionals point to the relationship between poverty, mental illness and drug abuse. It has become "shameful" in this province to be poor and instead of being offered help and assistance to move forward in a positive, therapeutic and supportive way many of those who are economically disadvantaged are penalized repeatedly by the system that is supposed to provide them with help. The stigma of poverty follows all members of the family and it is painfully obvious to the children that live in poverty when they attend school and see what the other children have. Mandatory drug testing of their parents will only further stigmatize them and if non-compliant with coercive treatment then they will be without a home, food and the necessities of life. Mandatory drug testing and treatment will not remove this barrier.
- Mental Illness
Mental illness may be a barrier to employment for some individuals as they may find it difficult to find an employer willing to provide the necessary employment accommodation. In other cases, the illness may require absence from work, periods of hospitalization and it is only a supportive and tolerant employer who will be supportive of the individual long term. In such cases, it would be helpful if the co-workers received information, education and assistance with understanding mental illness. The government should provide greater levels of support for these individuals. In cases where the individual has both a mental illness and an addiction, specialized support and treatment services would need to be available. For such a strategy to work, the individual would need to have access to a broad range of support services, and treatment options in their home community. Mandatory drug testing and treatment will not remove this barrier.
- Access to Transportation and Child Care
For some individuals access to transportation and child care becomes a barrier to employment. If the individual leaves Ontario Works and has secured a part-time position, they may not have adequate financial resources to meet these needs. Individuals require access to these services if this barrier to employment is to be removed. Mandatory drug testing and treatment will not remove this barrier.
- Access to Medical Benefits
Access to medical benefits including dental, vision and medication is essential. However, many individuals who find employment and leave Ontario Works may lose access to such benefits. Some of the newer medications used to treat individuals with mental illness are very costly and an individual earning only minimum wage may be unable to afford the medications that keep them well and employable. The loss of benefits may become a barrier to employment especially if the individual relies on these benefits to maintain their wellness and recovery. Mandatory drug testing and treatment will not remove this barrier.
- Knowledge of Legal Rights and Entitlements
Many individuals who are in receipt of Ontario Works benefits do not know their legal rights and entitlements. This often leads to their victimization, illegal evictions by landlords or termination of benefits simply because they have not understood what was expected of them. There is an assumption that everyone understands language, terminology, and that they can read or complete complex eligibility forms. This assumption may be wrong and service providers should consider how they provide services to this population. There must be heightened sensitivity to the needs of this population and creative methods for service delivery that best meets their needs. Mandatory drug testing and treatment will not remove this barrier.
The Charter of Rights and Mandatory Drug Testing:
The Charter of Rights protects individuals from various forms of state intervention. Protection is not absolute, however, and the government may enact legislation that restricts individual liberties where there is a matter of pressing public importance. Where such law is contemplated, the Charter requires that any loss or reduction of liberty be balanced with strict guidelines designed to ensure that any restriction is reasonable, minimal and fair.
The proposed changes to social assistance legislation necessarily require intrusion into the private lives of individuals, affects their bodily integrity, diminishes their privacy and subjects them to an invasive search process. Consequently, the proposed amendments may infringe individual rights guaranteed in Sections 7 and 8 of the Charter. The question then becomes whether or not the invasion of personal liberties is reasonable in its purpose and process.
The stated goal of the legislation, to promote employability among those currently dependent on social assistance by identifying and treating drug addiction, is not enhanced by the proposed changes. There is no evidence to suggest that drug use is the primary, or even a contributing factor in failure to find employment among people dependent on social assistance. Rather, a number of socio-economic factors influence a person's ability to work. Further, even if drug abusers could be identified through the testing procedures, it is not clear that identification would lead to effective treatment and, later, employability. The proposed amendments fail to provide a clear design to obtain their stated purpose and, as such, would likely fail a Charter challenge.
Even if the purpose of the drug testing were rationally connected to the stated goal of employability, the program would fail Charter scrutiny. Any government act, to be justifiable, must impair the rights of individuals in the least restrictive way. The drug-testing program fails to accomplish this requirement in that it is overly broad in its application. The selected group for testing, recipients of social assistance, have not been shown to use drugs any more often than any other sub-population. The decision to test these individuals is not based on any reasonable or objective evidence of addiction or use. Test subjects are identified due to their poverty alone. For that reason alone, the amendments are unlikely to be found the "least restrictive".
Restriction of liberty must also be proportionate to the importance of the societal benefit. In other words, the more intrusive the government action, the more important the public advantage would have to be to justify the interference. The drug-testing program requires individuals to urinate in the presence of another person. Fundamental issues of privacy and dignity are at issue. Consequently, the proposed legislation would have to have significant value to permit invasiveness to this degree. As discussed above, the amendments do not meet any reasonable standard.
Finally, the stated purpose of the proposed amendments is to identify a specific group of individuals, drug users, to permit discriminatory standards of government services, forced treatment and repeated testing. Alcoholism and drug addictions have been recognized as disabilities under Canadian law. Section 15 of the Charter strictly prohibits discrimination on the grounds of disability, where the discrimination results in an infringement of other Charter values. In this instance, individuals who are disabled by addictions are being singled out and required to undergo forced medical treatment and periodic drug screening -- again, violations of sections 7 and 8 of the Charter.
The government suggests that identified drug users, seemingly synonymous with persons with addiction disorders, would suffer a reduction or termination of social assistance benefits should they fail to comply with a treatment program.
In light of the above considerations, it is unlikely that the proposed amendments to social assistance legislation would survive a Charter challenge. The government is proposing sweeping changes to the basic rights and values of Ontarians while, simultaneously failing to develop a reasonable design for implementation.
Treatment and Coercion:
The PPAO is opposed to any policy which forces treatment on individuals and does not respect the legal rights and entitlements of the individual without due process and the principles of natural justice being applied. Best practices would indicate that the best treatment possible is that which a person wants and recognizes the need for. The health care system should be doing things with individuals and not "to individuals." Evidence based research would perhaps support the notion that when people recognize the need for and want a treatment it is more likely to prove beneficial for them. If an individual is coerced into treatment it is unlikely to be as effective and the lasting impact and benefit may be minimal.
Treatment cannot be given without informed consent and in an environment free of fear, intimidation and coercion. It appears that the intent of the policy is to force treatment on individuals who are perhaps still capable and able to make their own decisions with respect to treatment. The Health Care Consent Act provides that an individual is capable of consenting to treatment unless found otherwise by a health practitioner. If MCSS believes that individuals in receipt of Ontario Works benefits are incapable of consenting to their own treatment then there are provisions in law that allow for such treatment to be given. The Health Care Consent Act would permit a health practitioner to make a finding of incapacity to consent to treatment and seek consent for the particular treatment from a Substitute Decision Maker. Upon making such a finding, the health practitioner will inform the individual of the right to challenge the finding at a hearing before the Consent and Capacity Board. If an individual wished to have legal representation then such arrangements could be made. Such a process would protect the civil and legal rights of all individuals. The law presumes everyone to be capable unless deemed otherwise and this policy appears to violate that principle and the law.
Research and Development:
Although it is acknowledged that illicit drug use may be a barrier to employment, so can medication prescribed by a physician. This is especially true of some of the medications prescribed to treat mental illness. Many of our clients tell us that they stop taking their medication because the side effects are horrific and make them feel even worse than if they were not taking them. Many of the medications offered to individuals with mental illness have side effects that can shorten life expectancy, can cause serious bodily harm with prolonged use and do little to help the person feel better although they may temporarily control the symptoms of their illness.
The MCSS should be advocating for and supporting research that leads to the development of medications with fewer side effects and less impact on the body instead of concentrating on mandatory drug testing and how to penalize those with an illness. If such treatments were available, then individuals might not stop taking their medication. Medication use may become a barrier to employment because some make the individual very tired and unable to wake up in the morning to make it to work on time. Other medications make the individual drowsy, feel disoriented or just unable to concentrate. Most employers are not tolerant of this and may dismiss the employee or label them as a "problem employee."
Transparent Process, Appeal Mechanisms, False Positives:
>There has been little discussion about what the proposed policy does not include. For example, if a person refuses to submit to a mandatory drug test then their benefits are threatened or outright terminated. It would be important to have an appeal process that is open to that individual so that they could challenge this decision, they must have the right to legal representation if they wish and the appeal process must be clearly articulated so that everyone has access to this information. Secondly, if the person submits to a mandatory drug test and there is a finding of false positive, there is no process in place for the person to have a second test, that they have any opportunity to engage in treatment prior to benefits being terminated or dispute the accuracy of the test. Nor does the proposal provide a mechanism for independent legal and rights advice so that the person does not incriminate themselves or that they are aware of their legal rights. The MCSS does not state whether they intend to use the provisions in the Health Care Consent Act to make individuals incapable to consent to treatment if they refuse to attend treatment or if they will simply cut them off and let them fend for themselves. If this is the intent, MCSS staff will require extensive education and training on patients rights and the Consent and Capacity Board, and will require that rights advice be given to the individual. The MCSS has not stated if positive drug tests will be reported to the police, if criminal investigations will be encouraged or if eligibility review offices will become the "police" for the MCSS. These disturbing questions could involve further violations of individual and human rights.
Targeting the Poor:
It appears as if this policy targets the poor, those with mental illness and the most vulnerable amongst us. No other group in society has been subjected to mandatory drug testing and treatment nor would that be proposed, for political reasons. Perhaps the policy should require that anyone in a position of authority or responsibility take mandatory drug testing such as teachers, doctors, politicians, pilots, police and other professions. Perhaps the government should spend it's time and energy identifying policies that assist people and support them in gaining access to appropriate treatment services when and where they require it. Over the past few years many of the cuts to social assistance benefits have resulted in large hole being ripped in the social safety net and the poor bearing the brunt of the cuts. For example, cuts to Legal Aid affected the poor, a 26% reduction in social assistance benefits affected the poor, tax rebates were not given to those on social assistance despite the fact that they pay GST and PST like every other citizen of Ontario, the lack of affordable housing affects the poor, long waiting lists for support services affect the poor and other examples too numerous to mention.
The new "tough love" approach and reliance on a definition of "deserving" for social service delivery has been anything but loving and has resulted in a shameful increase in the number of homeless people, many with mental illness, a callous disregard for the worth and dignity of all individuals in our society and a growing sense that it is shameful or disgraceful to be poor. There are individuals who have worked throughout their life, who own their own homes and due to illness (physical or mental) have become unable to work. When they are forced on to welfare the punitive hand of the system punishes them yet again by placing a lien on their home. Many people who live in poverty are made to feel like criminals and that they are "taking" that which they don't deserve and have become a "drag" on our society or are "abusing the system". A whole generation of children is growing up in government imposed poverty and intolerable living conditions only to resent a society that casts them off only because of the misfortune of being born into poverty. Mandatory drug testing and treatment will further alienate, stigmatize, and marginalize the most vulnerable in our society.
Anti-stigma Campaign:
Those living in poverty and receiving Ontario Works benefits have become the frequent targets of government policy makers and have been stigmatized by government institutions, the media and those wishing to blame the poor for government overspending and deficits. This proposed policy only heightens the stigma that already exists for the poor and vulnerable in our province. By taking from the poor, a sizeable tax cut and tax rebates for the middle and upper class was possible. Tax rebate checks were meant to soothe our consciences and justify the robbery of the most vulnerable amongst us. It would be helpful if the MCSS devoted significant resources to an anti-stigma campaign that dealt with such issues as poverty, mental illness, and having enough compassion and charity to extend a helping hand to those in need. Instead, mandatory drug testing has reinforced in the public's mind and served to stigmatize welfare recipients as drug abusers and addicts and that they must be "forced" to submit to testing and treatment against their will. Social policy that makes such sweeping and irresponsible statements is dangerous for the public at large and can lead to more insidious and malicious agendas. This also flies in the face of reason, fairness, human rights and justice.
Conclusion and Recommendation:
Addiction to drugs is only one barrier to gainful employment. There
are several other factors that need to be addressed. The PPAO recommends
that the MCSS not implement a policy on mandatory drug testing and that
access to treatment be voluntary, informed and in keeping with the Health
Care Consent Act and that all treatment services be made available
in an environment free of fear, intimidation and coercion.
