Systemic Advocacy Issues: 2006
Promoting Rights and Recovery through Systemic Action
PPAO Systemic Advocacy Issues — 2006
Rights promotion is a process that often requires action at a variety of levels within health and social service systems of care, treatment and support, the courts and government in order to effect positive change. This process requires diligence and perseverance over a long period, as lasting progress seldom happens overnight. Promoting rights is about catalyzing social change. It is about slowly and incrementally raising awareness, reducing barriers to accessing existing rights and justice, eliminating discrimination and enshrining in law recognized standards of protection for individuals with mental illness and disability.
The realization of rights through systemic advocacy is a process which may be closely allied to recovery and wellness insofar as it fosters self-determination and the reduction of barriers to social inclusion. Systemic advocacy strives to increase the range of choices for individuals broadly within the culture at large. Ideally, it draws its agenda for change from a consumer perspective and, in this way, empowers individuals to assume greater control over their own lives.
The following captures the efforts of the PPAO to advocate for social change through action taken at the systems-level. Many of these issues require continued advocacy and are representative of the work carried out by PPAO staff and other stakeholders, over an extended period of time.
Management of Client Funds and Property by Hospitals
At the December 2006 program meeting, the advocates and head office staff discussed the theft of money from patients in two psychiatric facilities. In one facility, funds had been misappropriated from patient accounts over a long period of time, which resulted in a substantial amount of money being taken. In the other facility, the hospital decided of its own accord to conduct a forensic audit, which subsequently uncovered theft from patient accounts in that facility.
Staff discussed how patient advocates could best address this issue across the facilities where we provide service, to ensure that patient finances were protected and that hospitals had appropriate policies, procedures and oversight in place. Since 9 of the 10 hospitals have been divested from provincial government control, there is no longer a single operating policy across sites or transfer of information and best-practices as a matter of course. In many respects, the PPAO remains the one continuing on-site link across the facilities.
A memo was drafted and sent to advocates to share with their facility administrators outlining issues and concerns, including the safeguarding of patients’ personal property. The PPAO also wrote to the Ontario Hospital Association to alert them to the issues raised by our office in the current and divested provincial psychiatric hospitals. This issue continues to be an ongoing subject of advocacy activity.
Dialogue with the Public Guardian and Trustee
The PPAO met with representatives from the Office of the Public Guardian and Trustee (OPGT) to establish a dialogue regarding issues impacting mutual clients. Discussion centred on a broad range of issues, including: the provision of rights advice information for notices of continuance of incapacity to manage property (Form 24); the completion of certificates of incapacity to manage property (Form 21) and notices of continuance (Form 24) for non-mental health clients; client requests for capacity assessments; distribution of capacity assessors across the province and the need for improved availability in under-serviced areas; the process of entering a client’s home to catalogue their possessions and the need to develop a policy regarding this issue; client access to financial statements; and the forwarding of client mail. The PPAO and OPGT staff continue to collaborate to address identified concerns.
Funding for Smoking Cessation Products
The PPAO wrote to the Minister of Community and Social Services, Hon. Madeleine Meilleur, to advocate for funding of smoking cessation products for residents of tertiary care mental health facilities who wish to stop smoking. The PPAO noted the lack of financial assistance on discharge to support individuals in maintaining a smoking cessation regimen. In the context of the government’s overall health promotion strategy, the PPAO recommended the inclusion of smoking cessation products in the Ontario Drug Benefit Formulary to support those individual who had made a personal commitment to stop smoking, but lacked the financial resources to realize this goal. The PPAO noted that initial costs to the government would pay significant future dividends in decreased health costs and improved health for Ontarians.
Detention of Persons Held for Psychiatric Assessment – Form 1
The PPAO wrote to Hon. George Smitherman, Minister of Health and Long-Term Care, regarding the potential abuse of the rights of persons detained in hospitals under the authority of an Application for Psychiatric Assessment (Form 1). Reports were received from patients, families, health practitioners, and facilities alleging that, in certain areas of the province, individuals were detained for several days on a Form 1 while awaiting a bed at a psychiatric facility. Moreover, some of these hospitals were also alleged to have failed to provide individuals with written notification of their detention (Form 42) in a timely manner, if at all, as required by law. A Form 1 is valid for 7 days prior to its execution and permits a psychiatric facility “to restrain, observe and examine” a person in the facility for not more than 72 hours. Following completion of such an assessment, the individual must be released or admitted as either an informal, voluntary or involuntary patient. The PPAO raised concern that the liberty rights of individuals left to languish while awaiting a bed in a psychiatric facility were being egregiously violated. The PPAO was invited to join a task group to provide guidance for the safe management of mental health emergencies and to improve standards of care and safety for all consumers who present to hospital emergency departments. Form 1 admissions were to be considered in this context. The Mental Health Patient Safety Task Group met several times in 2006.
Consent and Capacity Board
The PPAO continued to work collaboratively with the Consent and Capacity Board to ensure that our mutual clients continued to receive the best possible service. Representatives from both the PPAO and CCB met to address ongoing concerns, such as: the appointment of legal counsel; combined hearings for Forms 3 (Certificate of Involuntary Admission) and 4 (Certificate of Renewal); the timeliness of decisions and reasons; and withdrawals.
Traditionally, the CCB has anonymized its reasons for decision so that an individual’s initials, not full name, are used. However, the CCB suddenly changed its policy and decided to no longer anonymize reasons. The PPAO was extremely troubled by this development because reasons for decision contain tremendous amounts of personal health information about individuals. Hearings are often held at a time when individuals are experiencing the low point of their illness and many do not want such information shared with others due to fear of stigma and discrimination. Individuals have a reasonable expectation of privacy regarding this information. It was the PPAOs position that not anonymizing reasons would have a chilling effect and prevent clients from exercising their rights because they would be deterred from applying to the CCB.
The CCB subsequently changed its policy and reasons for decision are again anonymized.
Special Diet Allowance
The PPAO supported a complaint made by a medical practitioner to the Information and Privacy Commission of Ontario regarding the new Special Diet Supplement application form being used by the Ministry of Community and Social Services for recipients of the Ontario Disability Support Program (ODSP) seeking a special diet allowance. The allowance is intended to help people who require a special diet because of a medical condition. However, it is the practitioner’s position, supported by the PPAO, that recipients are not in a position to refuse to consent to the disclosure of their personal health information to their caseworkers because if they do, it can have an immediate impact on their benefits, their quality of life and ability to provide for themselves and their families. As such, there is a coercive quality to the consent that is sought from ODSP clients when they are applying for the special diet allowance. They are put in the awkward position of wanting to keep their medical information private versus having to disclose it simply to receive a benefit that they are already likely eligible to receive.
Victim Impact Statements
Amendments to the Criminal Code of Canada in January 2006 made significant changes to the provisions governing victim impact statements at hearings before the Ontario Review Board (ORB). These changes included: requiring the ORB to notify victims of their right to participate if there is a possibility of a discharge; requiring the ORB to consider victim impact statements in making its disposition; allowing victims to read a statement at hearings; and permitting the ORB to adjourn hearings to allow victims an opportunity to prepare a statement. The PPAO had previously made submissions to the Standing Senate Committee on Legal and Constitutional Affairs and the House of Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness that ORB hearings are not the appropriate forum for victim impact statements. Such statements focus exclusively on the effect of the forensic client's actions while they were potentially at the low point in their illness and neglect other considerations such as the potential for rehabilitation and reintegration. The PPAO will continue to monitor the frequency and effect of victim impact statements.
“Arrests” and the Mental Health Act
All too often, we hear individuals and organizations state that an individual was “arrested under the Mental Health Act.” This is inaccurate as there are no provisions in that legislation for arresting individuals and it gives the false impression that “criminal activity” has taken place. The law does say that police “may take the person in custody to an appropriate place of examination and where practicable the place shall be a psychiatric facility or other health facility.” Language is powerful and can perpetuate stigma. In response to the use of such language in a verdict explanation, the PPAO wrote to the Office of the Chief Coroner to express our concerns. The Chief Coroner promised to raise the issue with all senior staff at his office.
National Independent Advocacy and Rights Protection Program
The PPAO wrote to Prime Minister Stephen Harper and Minister of Health Tony Clement in support of the work of Senator Michael Kirby and the Standing Committee on Social Affairs, Science and Technology respecting mental health, mental illness and addictions. In particular, the PPAO supported the creation of the Canadian Mental Health Commission to provide leadership in the areas of mental health, patients’ rights and the development of best practices to foster empowerment, wellness and recovery. The PPAO also recommended the creation of a national independent advocacy and rights protection program to address the needs of vulnerable populations, such as, children, women, First Nations, inmates and people with mental illness and addictions.
Mandatory Inquests
The PPAO, together with the Mental Health Legal Committee and the Empowerment Council for the Centre for Addiction and Mental Health, were granted intervenor status before the Human Rights Tribunal of Ontario in the case of Braithwaite and Illingworth v. Attorney General for Ontario and Chief Coroner. The Human Rights Tribunal heard the complaints of Renata Braithwaite and Robert Illingworth, whose family members died while involuntarily detained in a psychiatric facility. In both cases, the Office of the Chief Coroner of Ontario refused to exercise its discretion to order an inquest.
The Human Rights Tribunal ruled that the Coroner’s Act was discriminatory on the basis of mental disability because inquests are mandatory for prisoners who die in custody but discretionary for psychiatric patients who die in a psychiatric facility. The Honourable Peter Cory, a retired Supreme Court of Canada justice, commented on the similarities between inmates and inpatients:
Perhaps the most important similarity is that both the involuntary patients and the inmates are deprived of the most basic and fundamental right – that of liberty. The involuntary patient is as securely confined as the inmate. There is an exception to this, in that, in the least secure penal institutions, the inmate has greater freedom of movement than does the involuntary patient.
This decision is currently under appeal to the Superior Court of Justice, Divisional Court.
Pinet v. Administrator, Mental Health Centre, Penetanguishene et al.
Michael Roger Pinet was found not criminally responsible for the commission of an offence and detained at the maximum security Oak Ridge Division at Penetanguishene. At his annual hearing before the Ontario Review Board, it was ordered that he be transferred “forthwith” to a medium security facility. Eleven and half months passed but he was not transferred due to a lack of bed space. Shortly after Mr. Pinet initiated proceedings in the Ontario Superior Court of Justice for an order to be transferred; he was subsequently moved.
Despite Mr. Pinet's transfer, the court did not find his case moot and it ruled that both his section 7 (life, liberty and security of the person) and section 9 (right not to be arbitrarily detained or imprisoned) rights under the Charter of Rights and Freedoms were violated. The lengthy delay was found to have "removed Mr. Pinet's liberty, reduced his quality of life, denied him treatment necessary for his improved mental health and threatened to harm his current psychological state.”
The PPAO sought, and was granted, intervenor status in this case as we were concerned that psychiatric facilities are failing to transfer individuals found not criminally responsible in a timely manner to the least restrictive environments in accordance with their disposition orders. In making the order for intervenor status, Judge DiTomaso noted that “the PPAO is the only provincially coordinated provider of independent advocacy and rights advice services” and that the “level of involvement and expertise of the PPAO in its field has been extensive.”
Bill 28, Mandatory Blood Testing Act
A submission was made regarding Bill 28 to the Standing Committee on the Legislative Assembly in November 2006. The proposed legislation was developed to safeguard the health of victims of crime, emergency service workers, good Samaritans and members of a prescribed class of individuals by requiring the taking and analyzing of blood samples where there was a risk of exposure to a listed communicable disease. The PPAO noted that mandatory blood testing for HIV, for example, contradicts the current wisdom that such testing should be carried out on a voluntary basis. It was recommended, therefore, that the proposed legislation require and define guidelines for the provision of counselling, medical support and referral, where appropriate, to those who were subject to mandatory testing.
In consideration of the significant change in legal status for those who are subject to mandatory testing, the PPAO also recommended that rights advice be mandated by the proposed legislation. Rights advisers would be required to apprise respondents of the significance of a referral for mandatory testing and on request, assist with retaining legal counsel and applying for legal aid. The PPAO also recommended that appeals from CCB decisions regarding mandatory testing to the Superior Court of Justice be permitted.
Finally, the PPAO called for the inclusion of non-discriminatory guidelines for determining respondent risk of infection and that a definition of “victim of a crime” be included within the legislation rather than a future regulation. The PPAO’s submission stressed that those who are forced to comply with mandatory blood testing must be afforded every protection in law of their fundamental right to make informed choices and to maintain their bodily integrity.
Bill 107, Human Rights Code Amendment Act, 2006
A submission was made to the Standing Committee on Justice Policy regarding the proposed changes to the human rights protection system. Broadly, the PPAO called for the investment of additional resources to enhance, modernize and strengthen the current Human Rights Commission so that it is better able to fulfil its mandate and function. The PPAO was opposed to taking away any investigative powers from the Human Rights Commission. The appointment of more investigators to ensure timely investigations was recommended, with an open and transparent process for their recruitment and appointment. It was also recommended that the investigatory team reflect a balance with respect to gender and cultural diversity. The PPAO also recommended that third party applications be permitted and that the Human Rights Commission accept complaints in a variety of formats to ensure equitable access by vulnerable and marginalized individuals. Another key recommendation called for the establishment of mandated advisory groups, including one comprised of a majority of consumer-survivors to address mental health and addiction issues.
Police Records Checks and Deputation to the Toronto Police Services Board
A criminal records check is a search of the Canadian Police Information Centre (CPIC) database which is operated by the Royal Canadian Mounted Police. Information included in a CPIC check include: records of criminal convictions; pending federal and provincial charges; findings of guilt where a pardon has not been granted; findings of not criminally responsible by reason of mental disorder; absolute and conditional discharges where not prohibited by legislation; and current judicial orders (e.g., peace bonds, probation orders). Criminal record checks are also referred to as criminal reference checks and clearance letters.
A police records check is very different from a criminal records check. It is intended for individuals seeking employment and/or a volunteer position with the vulnerable sector. A police records check is conducted by performing a criminal records check plus a search of the local police force database which shows: convictions and charges; information about the individual as a complaint/victim/witness in an investigation; suspect information; offences against provincial statutes; allegations of offences where charges were not laid; and reports resulting from incidents relating to the Mental Health Act.
The PPAO has been concerned about the discriminatory practice of police releasing non-criminal information pertaining to mental health, especially those incidents that have identified a person as having been “arrested” under the Mental Health Act. Using the word “arrest” is incorrect as the law actually says that police “may take the person in custody to an appropriate place of examination and where practicable the place shall be a psychiatric facility or other health facility.” The release of such information often has a profoundly negative impact on consumers of mental health services who seek employment, volunteer opportunities and student placements. For many, this practice undermines their ability to be re-integrated into the community and to pursue life and career goals as responsible citizens.
The PPAO argued before the Toronto Police Services Board that its police reference check program is discriminatory and contrary to both the Human Rights Code and the Charter of Rights and Freedoms as it creates barriers for individuals with mental illness regarding career and volunteer opportunities. The PPAO urged the Toronto Police Services Board to take immediate action to end this discriminatory practice and to work with other police departments, advocacy groups, consumer-survivor organizations, mental health and human service providers and the provincial government to standardize police practices regarding disclosure of this information.
The PPAO, together with the Canadian Mental Health Association, Ontario and the Ontario Association of Patient Councils, is currently in the process of forming a group of stakeholders, called the Mental Health Police Records Check Coalition, to combat this problematic issue.
Bill 102, Transparent Drug System for Patients Act
A submission was made to the Standing Committee on Social Policy. Bill 102 was proposed as an enabling legislative element in the government's comprehensive strategy to overhaul the public drug program. In general, the PPAO supported the government's overall strategy to increase reliance on generic drugs, broaden the array of effective, interchangeable medications, increase consultation with consumers and other stakeholders, and improve transparency through public reporting mechanisms. The PPAO recommended that the proposed legislation operationalize governance principles intended to enhance accountability and transparency. The PPAO supported the inclusion of patient representatives in the drug evaluation process and recommended the creation of a subcommittee to specifically address mental health related medication issues. In addition, it was recommended that guidelines be established to ensure equitable committee and council membership. Finally, the PPAO called for the stipulation of mechanisms for the inclusion of stakeholders in decision-making processes, as well as guidelines for public reporting of relevant committee work and drug reviews.
Bill 109, Residential Tenancies Act, 2006
A submission was made to the Minister of Municipal Affairs and Housing regarding the proposed Residential Tenancies Act. The PPAO emphasized the vulnerability of individuals with mental illness and noted that stable and safe housing as one of the key determinants of health. Also noted were the barriers engendered by stigma, discrimination and inadequate social assistance, including the minimal shelter allowances provided by Ontario Works and the Ontario Disability Support Program. In the context of these concerns, the PPAO recommended a number of amendments to the proposed legislation. It was recommended that the Landlord and Tenant Board have jurisdiction over social housing tenants to ensure access to the same protections as private market tenants.
The PPAO called for the omission of provisions allowing landlord access to rental units with 24 hours written notice to determine their fitness for habitation or state of repair due to the potential for abuse of this authority, especially with respect to mental health consumers. The incorporation of a Resident’s Bill of Rights to ensure fair and just treatment in care homes was also recommended. In addition, the PPAO suggested that members of the Landlord and Tenant Board undergo regular training and education regarding the complex needs of mental health consumers. The PPAO also recommended that mental health consumers have input into the proposed Residential Tenancies Act and its regulations.
Personal Health Information Protection Act (PHIPA):
Proposed Amendments to Regulation 329/04
The PPAO made a submission to the Social Policy Branch of the Ministry of Health and Long-Term Care regarding the proposed amendments to PHIPA. The PPAO noted that the proposed amendments, although described as "minor housekeeping amendments," would have implications for PPAO clients and others. The need for additional protections for vulnerable individuals was emphasized and it was recommended that record destruction provisions set out standards for compliance and enforcement. The PPAO also recommended that consent be required to permit the disclosure of information regarding clients’ substitute decision-makers for fund raising purposes.
Stringent guidelines were recommended for the disclosure of health numbers for the purpose of research to ensure that clients are given an opportunity to give and withdraw consent without fear of reprisal or loss of service. The PPAO recommended that fee schedule provisions for accessing one’s own personal health information be struck for individuals receiving social assistance, pensions or disability benefits. Similarly, patients and their lawyers who are preparing for Consent and Capacity Board and Ontario Review Board hearings should not be required to pay access fees; nor should patients be charged for supervision during record review or for photocopies of records to be used for hearings. Finally, the PPAO recommended that where a hospital is to be compensated for completing questionnaires regarding patient needs, assessment, treatment or discharge plan that patients be advised of the disclosure and compensation.
Pre-budget Consultations: Investing in People and Programs
The PPAO participated in the Minister of Finance’s 2006 pre-budget consultations. Recommendations were made in support of investment in: a broad range of community-based mental health and addiction programs; community-based, independent advocacy and rights advice services accessible to all consumers; meaningful education and employment opportunities for individuals with mental illness; specialized services and supports for those with a dual diagnosis and safe, affordable housing. The PPAO also recommended that additional investments be made to guarantee mental health consumers access to the newest medications and treatments, travel allowances and an adequate income for those receiving ODSP.
Bill 36, Local Health System Integration Act, 2005
A submission was made to the Standing Committee on Social Policy respecting Bill 36. The PPAO participated in this consultation process to ensure that the special and unique needs of individuals with mental illness and addictions were not lost in the devolution of services and responsibility from the provincial government to the Local Health Integration Networks. The PPAO was concerned that fundamental rights and entitlements not become compromised or eroded during the process. A renewed commitment to protecting the rights of vulnerable individuals and in supporting them in their quest for wellness and recovery was recommended to support accountability, transparency and public confidence in the new system. This submission underscored the need for a full range of mental health and addiction services and supports within Local Health Integration Networks to ensure that consumers can access needed and wanted services in their home communities.
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