Ontarians With Disabilities Act - 2001 Submission to Minister by Psychiatric Patient Advocate Office

Ontarians With Disabilities Act

December 7, 2001

Marcel Beaubien, M.P.P.
Chair
Standing Committee on Finance and Economic Affairs
Room 1405, Whitney Block
Queen's Park
Toronto, ON
M7A 1A2

Dear Mr. Beaubien:

I am writing today to thank you for the opportunity to respond to Bill 125 the Ontarians with Disabilities Act, 2001. The Psychiatric Patient Advocate Office supports this legislation as one of the many ways Ontario can move forward to become a more inclusive society where people with special needs and people with disabilities are fully contributing members. We were encouraged to see in the preamble that the government of Ontario is committed to moving towards a province where "no new barriers are created and existing ones are removed". We were pleased that the government recognizes the need for comprehensive legislation, as a way of making the dream of creating a society in which all people can participate a reality.

The Psychiatric Patient Advocate Office (PPAO) is a quasi-independent program of the Ministry of Health and Long-Term Care, established in 1983 to protect the rights and entitlements of patients in the current and former provincial psychiatric hospitals. As such, we have an interest in this legislation, it's implementation and the evaluation at some point in the future. The legislation must provide maximum protection and opportunities, if it is to be effective.

The Ontarians with Disabilities Act, 2001 provides the government with an excellent opportunity to provide equity of access to all individuals, to create opportunities and possibilities that have not been widely available to individuals with disabilities and to change the societal stereotypes and beliefs about individuals with disabilities. This will require the dedication of resources, a broad based education campaign, and a recognition of these rights and entitlements by all stakeholders, including individuals with disabilities. When a person's rights have been violated there must be opportunities for recourse or redress and an accountability mechanism in place to ensure that the violation does not occur again. If these measures are put in place, the implementation and acceptance by the community of the goals and objectives of this legislation will be successful.

The PPAO has prepared the attached submission and corresponding recommendations that we hope will guide the development of the Regulations and afford maximum protection to all Ontarians. If you would like to discuss the recommendations, please call me directly at (416) 327-7007 or David Simpson, Systemic Policy Adviser at (416) 327-7004. Once again, thank you for the opportunity to provide feedback on this very important and necessary legislation.

_______________________
Vahe Kehyayan
Director

c.c.: Hon. Tony Clement
Minister of Health and Long-Term Care
Mr. Daniel Burns
Deputy Minister

Submission of the Psychiatric Patient Advocate Office to Bill 125 - Ontarians with Disabilities Act, 2001

December 2001

Psychiatric Patient Advocate Office
2195 Yonge Street, 6^th Floor
Toronto, ON, M4S 2B2
Telephone: 1-800-578-2343
Web site: www.ppao.gov.on.ca

Summary of Recommendations

The PPAO recommends that additional consultations be held to allow time for greater discussion and input from all sectors.
The PPAO recommends that people with disabilities be equal partners in the design of guidelines, standards and regulations, implementation, monitoring and evaluation of the Act and the Regulations and that the government of Ontario look for ways to maximize the participation of people from all sectors, including the mental health community.
The PPAO recommends that the Accessibility Advisory Council have a mandate to consult publicly, to report publicly on their findings and to report annually on the activities of the Council.
The PPAO recommends that the Accessibility Advisory Council reports to the Minister through an arms-length relationship so that it is independent and not seen as "an arm of the government," and to maximize its accountability to the public.
The PPAO recommends that the Minister not have full and complete responsibility for appointments for membership but that a fair, open and transparent process be established so that all individuals have an equal opportunity to apply for membership and to participate on the Council.
The PPAO recommends that the definition of disability in the Act be more flexible to include for self-identification of a disability and that there not be a requirement for a "diagnosis or label" in order to be covered by the Act.
The PPAO recommends that a broad based group of people from cross-disability groups be brought together to develop a more flexible and inclusive definition of disability.
The PPAO recommends that the government focus on defining barrier to include more than an obstacle to access and to educate people on the attitudinal barriers that individuals with disabilities encounter in their daily lives.
The PPAO recommends that the Act be strengthened to require the removal and prevention of all barriers in both the private and public sector and within a given time period, as defined in the Regulations.
The PPAO recommends that a clearly defined and articulated complaints process be established with timelines for complaint investigation and resolution.
The PPAO recommends that a broad range of options be available to the individual for complaints resolution and redress and that civil litigation not become the only means for recourse.
The PPAO recommends that an individual have access to an independent professional advocate should they wish assistance in navigating the complaints process and exercising their rights.
The PPAO recommends the formation of an independent advocacy and rights protection agency that can monitor and promote systemic change and provide leadership in the elimination of physical and attitudinal barriers.
The PPAO recommends that systemic change can be advanced by putting accountability mechanisms in the Act with corresponding time lines.
The PPAO recommends that penalty provisions and enforcement mechanisms be put in place as a way to respond to those who contravene the Act.
The PPAO recommends that the government define "barrier free environment" and set minimum standards that must be adopted within specific and realistic timelines.
The PPAO recommends that additional funding be provided to Legal Aid Ontario so that individuals who believe that their rights have been violated can have access to justice and recourse under the law.
The PPAO recommends that the Accessibility Directorate of Ontario be comprised of individuals with disabilities, including mental illness.
The PPAO recommends that the Directorate report publicly on its actions annually.
The PPAO recommends that the performance standards, indicators and outcome measures and items to be evaluated as part of the five year evaluation be clearly articulated in the early stages of implementation so that the Minister can collect the necessary date throughout the five year period.
The PPAO recommends that an advisory committee composed of individuals with disabilities be struck to set the standards for evaluation and to monitor the implementation of the Act.
The PPAO recommends that the Minister set the date for evaluation of the Act in the Regulations to heighten accountability to the public. The Minister must set out for the public the goals that they hope to achieve within the time period, set milestones and develop the resources necessary to meet these goals. Goals must be clear, concise and have an action plan that will identify the actions to be taken to achieve the desired outcome.
The PPAO recommends that the Minister report not less than annually on the progress of the implementation, monitoring and evaluation of the Act.
The PPAO recommends that the Minister involve individuals with disabilities in the drafting of the Regulations to ensure that the diverse perspectives and needs are incorporated.

Submission of the Psychiatric Patient Advocate Office to Bill 125 - Ontarians with Disabilities Act, 2001

Background
The Psychiatric Patient Advocate Office (PPAO) had made a submission in 1998 to the Minister of Citizenship, Culture and Recreation on the Discussion Paper: Preventing and Removing Barriers for Ontarians with Disabilities. In our submission we had presented several recommendations that we believe are still relevant and which speak directly to the barriers faced by individuals with mental illness. Most of the barriers faced by our clients are those which are not physical barriers but those which are attitudinal and invisible. Some of these include: stigma, lack of services, barriers to accessing services, lack of service options and choices, ineffective avenues of complaint or remedy when discrimination occurs, lack of real and meaningful opportunities for employment, education, re-training, recreation, socialization, culture and equity of opportunities to achieve their full participation in society.

At the time of our submission in 1998 we noted that most people with disabilities live in poverty and that the unemployment rate is shamefully high. This has not changed, as our clients still receive a personal needs allowance of $112.00 per month on which to meet their needs. If opportunities are to be seized, adequate resources must be provided including an increase in the personal needs allowance, an increase in the shelter allowance, funding for training and education, adequate, reliable and available transportation and affordable and safe housing must be available. Without these supports and services, individuals with disabilities will not be able to explore the options and possibilities available to them.

The Ontarians with Disabilities Act (ODA) is an attempt to strike a balance in society by affording individuals with disabilities opportunities; but this will require a campaign to educate the public about the contributions that people with disabilities make to society, to remove the stigma associated with having a disability and to change the attitudes of most sectors of society. Education should begin with students in elementary school and continue through to the post secondary education level. Colleges and Universities should design curriculums that address disability issues from the perspectives of people with disabilities and promote a greater understanding of these issues.

Some of the other recommendations of the PPAO included the following:

inclusion of a broad, inclusive and flexible definition of disability, consistent with the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code,
a public education campaign designed to foster tolerance, understanding and acceptance of individuals with disabilities,
development of a "zero tolerance" approach for harassment and discrimination,
sanctions, penalties, and enforcement mechanisms for those who contravene the law to hold them accountable,
independent rights information and support in exercising individual rights when legal status is changed, or discrimination due to disability status occurs
a complaints process with timely remedies and a process for resolving complaints
the creation of an independent, or quasi-independent advocacy and rights protection agency, similar to the PPAO model, that will monitor complaints and non-compliance reports from people with disabilities,
increase funding of Legal Aid Ontario to enable Ontarians with disabilities to access legal assistance to pursue their rights and entitlements and have access to justice,
the legislation must cover all sectors of the community, and
that all legislation be reviewed in order to identify and remove barriers to access that might exist.

Consultation Process and Involvement
The consultation period and public hearings schedule was very rushed and did not afford an opportunity for broad based discussions amongst all stakeholders. This may have influenced the amount and extent of the information provided. The PPAO recommends that further consultations be held with all stakeholders and that there be more time devoted to the process of hearing from people with disabilities.

The PPAO recommends that additional consultations be held to allow time for greater discussion and input from all sectors.
The PPAO recommends that people with disabilities be equal partners in the design of guidelines, standards and regulations, implementation, monitoring and evaluation of the Act and the Regulations and that the government of Ontario look for ways to maximize the participation of people from all sectors, including the mental health community.
The PPAO recommends that the Accessibility Advisory Council have a mandate to consult publicly, to report publicly on their findings and to report annually on the activities of the Council.
The PPAO recommends that the Accessibility Advisory Council reports to the Minister through an arms-length relationship so that it is independent and not seen as "an arm of the government," and to maximize its accountability to the public.
The PPAO recommends that the Minister not have full and complete responsibility for appointments for membership but that a fair, open and transparent process be established so that all individuals have an equal opportunity to apply for membership and to participate on the Council.

Definitions
The PPAO has advocated for a definition of disability that is broad, inclusive and flexible and that is consistent with the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code. We are pleased that this legislation includes individuals with mental health disabilities. However, the inclusion of "mental disorder" or "mental impairment" in the definition may be restrictive in that it does not appear to allow for individuals to "self-identify" a disability. Like the Canadian Mental Health Association, we are concerned that some individuals with a mental illness may be excluded by the Act simply because they have not been "diagnosed" and therefore would not fit the definition. The PPAO supports any actions by the government that would broaden the current definition to make it more flexible to include perception of a disability or a history of disability within the definition that would allow individuals to self-identify as being a person with a disability.

The PPAO recommends that the definition of disability in the Act be more flexible to include for self-identification of a disability and that there not be a requirement for a "diagnosis or label" in order to be covered by the Act.
The PPAO recommends that a broad based group of people from cross-disability groups be brought together to develop a more flexible and inclusive definition of disability.

The PPAO is pleased that the government has included in their definition of "barrier" not only the physical barriers experienced by our clients but also the attitudinal barriers that are often the most difficult to overcome and to combat. We recommended that the government spend equal resources on addressing attitudinal and physical barriers. Giving equal attention to both types of barriers will illustrate the government's commitment to addressing barriers at both the micro and the macro level and in promoting systemic change within the province. All sectors of society must recognize that barriers are more than obstacles to access and there must be a concerted effort on the government's part if individuals with disabilities are to achieve their full potential in an inclusive and accepting community.

The PPAO recommends that the government focus on defining barrier to include more than an obstacle to access and to educate people on the attitudinal barriers that individuals with disabilities encounter in their daily lives.
The PPAO recommends that the Act be strengthened to require the removal and prevention of all barriers in both the private and public sector and within a given time period, as defined in the Regulations.

Complaints Process
For the Act to be effective there must be a clear and transparent complaints process that is available to anyone who wishes to avail themselves of the process. The complaints process could be triggered by an individual, a group or an organization and there should be clear timelines for when the complaint will be investigated and a decision made as to the actions to be taken. The Act must include a range of options for pursuing complaint resolution and the individual must maintain control of their complaint as to how it progresses through a complaints resolution process. All complaints must be investigated and resolved in a timely manner if the Act is to be effective, otherwise, the complaints process becomes a barrier to access itself. Broad based education will be necessary so that individuals know their rights, know the recourse available to them and know how to exercise these rights.

Access to a professional advocate may be an essential component in facilitating access to a complaints process for individuals with a disability. Often complaints process become complex, difficult to navigate and often the system "takes control" undermining the person's right to autonomy and self-determination. An advocate could assist the individual throughout the process and as an objective party could assist the individual in exercising their rights.

The PPAO recommends that a clearly defined and articulated complaints process be established with timelines for complaint investigation and resolution.
The PPAO recommends that a broad range of options be available to the individual for complaints resolution and redress and that civil litigation not become the only means for recourse.
The PPAO recommends that an individual have access to an independent professional advocate should they wish assistance in navigating the complaints process and exercising their rights.

Promoting Systemic Change
The Act is silent on promoting systemic change and it appears that the Act will require a complaint to be made prior to action being taken. It is essential that mechanisms be put in place that will allow for the identification of barriers and opportunities to make society more accessible to individuals with disabilities. An independent advocacy and rights protection agency, similar to that of the PPAO, could be charged with this responsibility of monitoring compliance, taking action without a complaint needing to be made and in evaluating the progress within all sectors.

The PPAO recommends the formation of an independent advocacy and rights protection agency that can monitor and promote systemic change and provide leadership in the elimination of physical and attitudinal barriers.
The PPAO recommends that systemic change can be advanced by putting accountability mechanisms in the Act with corresponding time lines.
The PPAO recommends that penalty provisions and enforcement mechanisms be put in place as a way to respond to those who contravene the Act.
The PPAO recommends that the government define "barrier free environment" and set minimum standards that must be adopted within specific and realistic timelines.
The PPAO recommends that additional funding be provided to Legal Aid Ontario so that individuals who believe that their rights have been violated can have access to justice and recourse under the law.

Accessibility Directorate of Ontario
The PPAO supports the formation of an Accessibility Directorate, provided that it includes individuals with disabilities as equal partners and in an advisory capacity. Involvement by those living with a disability will make the work of the Directorate more responsive and accountable to the individuals that the Act is intended to assist. Accessibility Plans should be reviewed by individuals who have a disability and any recommendations they make should be enforced to ensure maximum accessibility. Monitoring compliance and enforcement mechanisms would be essential, if the Plans are to be effective in promoting change and eliminating barriers. Again, without time lines attached there may be little motivation for action to be taken within an appropriate time period. The Directorate must be accountable to the community at large and to the people that it is intended to assist.

The PPAO recommends that the Accessibility Directorate of Ontario be comprised of individuals with disabilities, including mental illness.
The PPAO recommends that the Directorate report publicly on its actions annually.

Review of the Act
The PPAO is supportive of the provisions for a review of the Act within five years after it comes into force. However, we would recommend that from the very beginning stages of implementation that the standards and outcome measures to be used in the evaluation process be clearly identified and articulated. This will assist in the collection of data throughout the five year period and will assist in moving the elimination of barriers forward in an orderly and timely manner. The Minister must involve individuals with disabilities in setting the standards and indicators that will be used to evaluate the Act and the progress made and this group should operate in an advisory capacity throughout the entire five years leading up to the evaluation period.

The PPAO recommends that the performance standards, indicators and outcome measures and items to be evaluated as part of the five year evaluation be clearly articulated in the early stages of implementation so that the Minister can collect the necessary date throughout the five year period.
The PPAO recommends that an advisory committee composed of individuals with disabilities be struck to set the standards for evaluation and to monitor the implementation of the Act.
The PPAO recommends that the Minister set the date for evaluation of the Act in the Regulations to heighten accountability to the public. The Minister must set out for the public the goals that they hope to achieve within the time period, set milestones and develop the resources necessary to meet these goals. Goals must be clear, concise and have an action plan that will identify the actions to be taken to achieve the desired outcome.
The PPAO recommends that the Minister report not less than annually on the progress of the implementation, monitoring and evaluation of the Act.

Regulations
The PPAO believes that the government must include individuals with disabilities and other stakeholders in a collaborative effort in drafting the Regulations. This will reflect the diversity of individuals with disabilities and ensure that the Regulations are reflective of the needs and wishes of individuals with all types of disabilities. Although this would be a novel approach to drafting Regulations it seems appropriate for this legislation and the new spirit of barrier removal. Giving individuals with disabilities a hand in drafting the Regulations will demonstrate this commitment and new perspective.

The PPAO recommends that the Minister involve individuals with disabilities in the drafting of the Regulations to ensure that the diverse perspectives and needs are incorporated.

Conclusion
The Psychiatric Patient Advocate Office is supportive of the Ontarians with Disabilities Act and views this as a first step in a long process. We have, as an organization, advocated for equitable treatment for our clients and see this Act as a step towards achieving equity and access and as a support to full participation in society. We would encourage the government to review our recommendations and implement them as a way to strengthen this Act and to afford maximum protection to individuals with disabilities. The PPAO believes that in creating an inclusive and accepting society for individuals with disabilities there is much to be done but that as a society we can rise to meet this challenge and to exceed all expectations. It will take much effort on the part of all sectors, but with a strong Act and consumer participation and involvement, the dream can become a reality.

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