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Response to the Ontario Human Rights Commission Public Consultation Paper

January 8, 2010

Individuals living with mental health conditions face unique human rights issues and barriers. CMHA Ontario identifies priority issues that the Ontario Human Rights Commission’s should address in developing their Human Rights Mental Health Strategy for Ontario. (January, 2010)

Preface

Canadian Mental Health Association (CMHA) Ontario appreciates the opportunity to provide feedback to the Ontario Human Rights Commission (OHRC) on its public consultation paper “Human Rights Mental Health Strategy.”

CMHA Ontario is a not-for-profit, charitable organization committed to improving the mental health of all Ontarians. Our vision is “Mentally Healthy People in a Healthy Society.” Our mission is to develop and provide public policy advice that promotes mental health and improves the lives of people living with a mental illness.

Introduction

CMHA Ontario is supportive of the OHRC’s Human Rights Mental Health Strategy for Ontario, and we support the directions proposed in the public consultation paper. The OHRC’s current and past work in the areas of police mental health records, housing, employment and public education has helped to advance the rights of individuals living with a mental illness. CMHA Ontario welcomes the opportunity to collaborate with the OHRC to further advocate for the human rights for all Ontarians with mental illnesses.

Individuals living with a mental illness face unique human rights issues and multiple barriers as a result of their illness. They also often fall through the cracks in the health care system. Under the provisions of the Mental Health Act, individuals with a mental illness may be subject to consent and capacity determinations, may be involuntarily detained and may be given treatment without their consent. The OHRC has the opportunity to protect the rights of individuals with mental illnesses. Through its mandate to address issues of discrimination, the OHRC also has the ability to respond to the overt and systemic discrimination that Ontarians with mental illnesses face on a daily basis.

Focusing on Human Rights: the Issues

The areas of concern identified in the OHRC public consultation paper are all priority issues that should be considered during the development of the new Human Rights Mental Health Strategy. It is recommended that the OHRC use a rights-outcome approach when framing these priority issues.

The Universal Declaration of Human Rights emphasizes both negative and positive rights. Negative rights protect individuals from the negative actions of others. For example, the right to be free from discrimination and the right to be free from violence are both negative rights. Positive rights, on the other hand, allow an individual to benefit from the positive actions of others. The right to health care and the right to education are positive rights. Negative rights are the first step to ensuring basic human rights; positive rights are the path to ensuring equity for all persons. In order to promote equity and social inclusion for individuals with mental illnesses, the OHRC must engage positive rights in addition to the negative rights.

Everyone has the right to be free from discrimination

The lives of people with mental illnesses are often plagued by stigma as well as discrimination. Stigma is a negative stereotype. People who have identities that society values negatively are said to be stigmatized. Stigma is a reality for people with a mental illness, and they report that how others judge them is one of their greatest barriers to a complete and satisfying life. Though a related concept, stigma differs from discrimination. Discrimination is unfair treatment due to a person’s identity, which includes race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability, including mental disorder. Acts of discrimination can be overt or take the form of systemic (covert) discrimination. Under the Ontario Human Rights Code, every person has a right to equal treatment with respect to services, goods and facilities, without discrimination due to the identities listed above.

Often, individuals with a mental illness are faced with multiple layers of discrimination as a result of their mental illness and their identity. For example, a woman with a mental illness may experience discrimination due to sexism as well as her illness, and a racialized individual may experience discrimination due to racism in addition to their mental illness. This daily lived experience of discrimination can have a negative impact on mental health. In order to advocate for the human rights of all individuals with mental illnesses, it is important that the OHRC focus on a framework of intersectionality of oppression to address discrimination due to mental illness alongside all other prohibited grounds under the Code.

Everyone has the right to privacy

For individuals living with mental illnesses, police mental health records pose a violation to their human rights and their right to privacy. When an individual with a mental illness is detained and apprehended by police under the Mental Health Act, it generates an occurrence with the local police services and creates a non-criminal police record. This record is generated even if the individual is merely being escorted to the hospital or emergency room by police, thus creating an unnecessary listing of the individual’s interactions with the mental health system. This type of police record contributes to the stigma of mental illness, and often leads to discrimination against individuals with mental illnesses when they are required to obtain a spotless police records check or a “vulnerable sector screening” for the purpose of working or volunteering with a vulnerable population.

Information from the field also indicates that police mental health records in Ontario are in some cases being shared with organizations outside of police services. For example, some individuals have been denied entry into the United States as a result of their police mental health record. This sharing of information is a violation of the right to privacy for individuals with mental illnesses. Law reform is necessary to change these discriminatory practices. Although the Mental Health Police Records Check Coalition is currently working to address these issues, support from the OHRC is needed to advocate for change in provincial legislation to cease the recording of police encounters with individuals with mental illnesses.

CMHA Ontario commends the OHRC for their development of the Interim Guide to Police Records Checks for Vulnerable Sector Screening. Although this interim guide has been adopted by Toronto Police Services, many other jurisdictions have not yet followed suit. Ontario has multiple jurisdictions that are policed by municipal police, the Ontario Provincial Police (OPP) and the Royal Canadian Mounted Police (RCMP). A standardized policy on police mental health records must be developed that can be used by all jurisdictions regardless of the policing body. The OHRC must create accountability agreements with all levels of police services to ensure that the interim guide is being utilized consistently.

Everyone has the right to housing

In Ontario, there is increasing recognition that housing should be viewed as a human right. Affordable, adequate and suitable housing is a key social determinant of health that contributes to physical and mental well-being. Maintaining safe and affordable housing can be difficult for people with a mental illness. During periods of illness, individuals may be unable to work and/or experience a loss of income. Consequently, many live in substandard housing that is physically inadequate, crowded, noisy and located in undesirable neighbourhoods.

In recognition of this basic right to housing, the Ontario government introduced Bill 47 in 2008: The right to an adequate standard of living, which includes adequate food, clothing and housing, is a universal human right that is recognized by Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights, as proclaimed by the United Nations. It has passed its first reading in the Ontario Legislature. Further acknowledging the need to provide more affordable housing options to marginalized groups, the government also introduced Bill 198, the Planning Amendment Act. This bill, which has passed its second reading, includes an inclusionary zoning section that will give municipalities the right to direct that a certain percentage of new development be set aside for social housing. This bill can be seen as a partial solution to addressing the discrimination in housing faced by persons with mental illnesses.

Everyone has the right to education and employment

Education and employment are two sides of the same coin. Education is a powerful resource that protects against poverty by providing the skills to secure quality employment. Unfortunately, people with mental illnesses are often excluded from higher learning opportunities, further alienating them from the community, and keeping them in poor health and poverty. Supported education has evolved as a best practice that supports individuals in exploring their educational options, assisting them through the enrolment process and providing ongoing support during their study period.

Information from the field suggests that when persons with mental illnesses do enter the workforce they are relegated to low wage jobs that result in cycling back and forth between social assistance and unstable work. A coordinated employment approach that includes training and employment support is especially important for individuals with mental illnesses because they represent a large pool of untapped labour. For many people with mental illnesses, work is also central to the process of recovery. Evidence shows that supported employment programs that provide a full range of employment training and supports for persons with mental illnesses (such as job readiness and job coaching) and that reflect their preferred employment will result in sustained employment at higher wages. Effective employment supports can be strengthened through workplace accommodations to increase the likelihood of successfully finding and keeping work.

Individuals with mental illnesses, as well as individuals with other invisible disabilities, are often discriminated in the areas of education and employment. Accommodations are necessary to support these individuals to access their right to the education and the employment of their choice. Under the Code, educators and employers have a duty to accommodate any individual who discloses their invisible disability. Support from the OHRC is necessary to inform all educators and employers across the province about their responsibilities under the Code.

Everyone has the right to adequate income

Income is the foundational social determinant of health upon which other key essential resources such as housing, education, and employment, are built. Due to the episodic nature of mental illness, and the fact that mental illness first appears as a young person starts their journey toward independence, economic stability is often delayed. For this reason, a significant number of Ontarians with mental health issues are subsisting on social assistance income levels that are well below the poverty line. In 2008, 35.4 percent of the Ontario Disability Support Program caseload had a primary diagnosis of mental illness. A basic standard of living should be a basic human right. This belief has led many in the social justice community to call for a guaranteed annual income for everyone that is comparable to the subsidies for Old Age Security and Guaranteed Income Supplement for Seniors.

Everyone has the right to health care

The Canada Health Act protects the right to health care for residents across the country. Section 3 of the Act states that “the primary objective of Canadian health care policy is to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers.” However, many individuals with a mental illness, often combined with addictions, developmental disabilities, acquired brain injuries, fetal alcohol spectrum disorder and other complex mental health issues, often face significant barriers to accessing care.

For example, in rural and northern Ontario communities, the basket of health services is less comprehensive, available and accessible than in urban areas. As a result of the lack of a comprehensive basket of services, continuity of care is fragmented in these communities. In addition, the lack of availability and access to public transportation is a significant barrier to accessing community mental health services for individuals living in rural and northern areas. Ongoing advocacy is needed to help increase access to mental health services in these under-serviced communities.

Similarly, individuals with mental illnesses from racialized communities are often not receiving adequate mental health services and supports. Across the province, many Aboriginal people and ethno-racial populations do not have access to culturally competent care. These marginalized groups have unique needs and face multiple barriers to accessing the social determinants of health, including income, employment, education and housing. These individuals are also vulnerable to mental health issues as a result of their daily lived experience of discrimination due to racism. Support from the OHRC is needed to help build community capacity for Aboriginal and ethno-racial communities, and support these communities as partners in promoting health and wellness, social inclusion and equity.

The right to appropriate services and supports

The fundamental right to health care includes the right to appropriate mental health services and supports. In Canada, there is an ongoing criminalization of individuals with mental illnesses. Across the country, prisons are housing large numbers of individuals with mental illnesses, addictions, developmental disabilities, acquired brain injuries, fetal alcohol spectrum disorder and other complex mental health issues. According to the Office of the Correctional Investigator, 39 percent 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. Many inmates with mental illnesses, including individuals on remand who are awaiting their trial, go untreated or receive limited mental health services and supports.

Persons with complex mental health issues who are involved with the criminal justice system are often labelled “forensic” or “high risk.” These labels often lead to stigma and discrimination for these offenders. Evidence from the field indicates that mentally disordered offenders are often victimized in the prison system, and once they are released from custody, they are often screened out of support services by Family Physicians, Psychiatrists and community support programs.

Mentally disordered offenders must have the right to appropriate care. To reduce the criminalization of the mentally ill, these offenders must be diverted away from correctional institutions and directed into the health care system. A few communities in Ontario have established mental health courts and collaborative police/mental health initiatives [such as Crisis Intervention Team (CIT) officers and Mobile Crisis Intervention Teams (MCITs)] that are steadily working to divert these individuals. Support from the OHRC is needed to advocate for standardized diversion programs and mental health courts throughout the province.

CMHA Ontario is also concerned about the use and safety of conducted energy weapons (CEWs), commonly referred to as Tasers. We have developed a policy position paper on this issue as we are concerned about the propensity of law enforcement officials to deploy Tasers on people experiencing a mental health crisis or demonstrating signs of emotional distress. We recommend that in addition to utilizing CIT officers and MCITs to appropriately respond to mental health crises, police services in Ontario must limit their use of Tasers to situations where the alternative would be use of deadly force. Tasers should only be used as a last resort and after all other de-escalation techniques have proven unsuccessful. Police services should also monitor and publicly report the incidence and outcomes of Taser use. In addition, independent research must be conducted into the safety of Taser use, including the effects on persons experiencing a mental health crisis. Support from the OHRC is needed to regulate the use of Tasers throughout the province to ensure the humane treatment of individuals in crisis.

Moving Forward in Ontario

The following key messages identify specific opportunities for the Ontario Human Rights Commission to lend its voice and provide its support to protect the rights of Ontarians with mental illnesses.

1. Collaboration is needed in order to protect the rights of individuals with mental illnesses in Ontario. There are many organizations, both governmental and non-governmental, that are working to address the needs of individuals with mental illnesses. The Accessibility for Ontarians with Disabilities Act is focusing on creating equitable access to services for individuals with disabilities including mental disorders. The Ontario Ministry of Health and Long-Term Care is working in collaboration with an inter-ministerial group to develop an integrated 10 year Mental Health and Addictions Strategy for the province. The Mental Health Commission of Canada is leading the development of a National Mental Health Strategy across Canada. The OHRC must work in tandem with existing and new initiatives to provide a coordinated response to the needs of individuals with mental illnesses. A coordinated effort that builds partnerships and engages multiple sectors is needed to ensure that the rights of individuals with mental illnesses are protected in all areas of society. As a non-governmental organization and a key stakeholder in the field of mental health in the province, CMHA Ontario welcomes the opportunity to work in partnership with the OHRC to advocate for the rights for all Ontarians living with a mental illness.

2. A standardized working definition of “mental disorder” is needed to protect the rights of individuals living with mental illnesses. Mental disorder is one of the prohibited grounds of discrimination under the Ontario Human Rights Code; however, this term is not clearly defined in the Code. A working definition of the term “mental disorder” should be developed to operationalize the application of the Code. A standardized working definition would also provide a common language that service providers and policy makers can use when working with and advocating for individuals with mental disorders. A social disability approach should be utilized when developing this definition so that the term “mental disorder” is inclusive of all individuals with diagnosed and/or undiagnosed mental health issues. The definition should also ensure that individuals living with mental illnesses have the right to choose whether to self-disclose and self-identify as having a mental disorder.

3. To support equity for persons living with mental illnesses, Ontario needs to embrace a social disability perspective. To advocate for the rights of individuals with invisible disabilities, including individuals with mental illnesses, the OHRC must focus on identifying disability as a social pathology, and move away from the individual pathology framework of disability. The social disability perspective, which includes the environmental approach and the rights-outcome approach, focuses on how social, political, economic and environmental structures can oppress and discriminate against people with disabilities, including individuals with mental illnesses. The environmental approach contends that disability is the result of society’s failure to accommodate people with disabilities in terms of developing adequate public policies to ensure full participation in physical and social environments. The rights-outcome approach focuses on promoting equity for all persons with disabilities. As the human rights agency of Ontario, the OHRC has a unique leadership opportunity to advance the social disability movement to ensure social inclusion and equity for individuals with mental illnesses.

CMHA Ontario welcomes to opportunity to collaborate with the OHRC to advance human rights for all Ontarians, including people with a mental illness.

For further discussion, please contact:

Michelle Gold
Senior Director, Policy and Programs
416-977-5580 ext. 4151
mgold@ontario.cmha.ca

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