Moving forward on mental health
Minds That Matter: Report on the consultation on human rights, mental health and addictions was released on September 13, 2012. This report outlined what we heard in our largest-ever policy consultation and set out 54 recommendations for government, housing providers, employers, service providers and other parties across Ontario. We also made 26 OHRC commitments to address human rights issues that affect people with mental health disabilities and addictions. In the past year, we have made important progress on meeting these commitments.
We are currently working on many mental health-related initiatives including legal cases, public interest inquiries, public education and outreach initiatives. We are putting the finishing touches on our first-ever Policy on preventing discrimination because of mental health disabilities and addictions. This new policy, along with guides for consumer/ survivors and employers, will be launched in June 2014.
Adding human rights in nursing requirements
The OHRC is being called as a witness by lawyers representing a nurse in a test case before the Fitness to Practise Committee of the College of Nurses of Ontario. The case involves a challenge to the constitutional validity of the definition of “incapacitated” under the Health Professions Procedural Code, a schedule to the Regulated Health Professions Act.
The case involves a nurse with a mental health disability who was subjected to incapacity proceedings at the College. As a result, she faces the prospect of having terms, conditions and limitations imposed on her ability to practice, and then having these conditions made public on the College’s website, along with the stigmatizing finding that she is “incapacitated.” The OHRC is being asked to testify on the human rights implications of negative stereotyping and stigma for people with mental health disabilities. The hearing is ongoing.
OHRC testifies at Jardine-Douglas, Klibingaitis and Eligon inquest, calls for action
In February 2014, the OHRC called on the Government of Ontario, police services and others to implement Coroner’s inquest recommendations into the deaths of Reyal Jardine-Douglas, Sylvia Klibingaitis, and Michael Eligon.
OHRC Chief Commissioner Barbara Hall told the inquest that human rights issues emerge when considering the use of force. Police services have an obligation to provide a service environment free of discrimination to people with actual and perceived mental health disabilities, including people who are racialized or are otherwise protected under the Human Rights Code.
Several of the jury’s recommendations echo the OHRC’s in its new report, “Police use of force and mental health” including the need to collect and analyze data, provide integrated, scenario-based training, and further study the use of conducted energy weapons (CEWs).
The OHRC report expands on key areas such as the use of CEWs and Mobile Crisis Intervention Teams (MCITs), and calls for immediate action on training, policy, data collection and reporting. It also recommends a review of the provincial use of force model.
The report formed the basis for submissions to the Independent Review of the Use of Lethal Force by the Toronto Police Service and the Office of the Independent Police Review Director’s Systemic Review of the Toronto Police Service’s Use of Force.
In her introduction to the report, Ms. Hall said, “We have already seen, and continue to see, many cases where people with mental illness have come into contact with police, sometimes with disastrous results. And we hear about these issues often from people and organizations in the community. The challenge will be to put recommendations into action – and the time to do that is now.”
Taking legal action
In Lynwood Charlton Centre v. City of Hamilton, the City refused Lynwood Charlton’s request to move its housing for eight teenage girls with mental health issues. We intervened in a successful appeal of the decision at the Ontario Municipal Board. The OMB agreed with our arguments that the Centre’s proposal aimed to remove land use barriers and improve accessibility to appropriate housing for persons with disabilities, which is consistent with the Provincial Policy Statement (PPS – a key statement from the Ministry of Municipal Affairs and Housing that directs municipalities on how to operate under the Planning Act) and other planning legislation.
The OMB also agreed that the PPS requirement that planning authorities permit and facilitate housing for special needs is a “powerful direction reflecting an important provincial policy interest.”
The City did not appeal the decision and announced it will conduct “a comprehensive review of residential care facilities in the context of the Provincial Policy, as it relates to special needs, radial separation distances and the Human Rights Code.”
Public interest inquiries
We continue our work to eliminate discrimination in housing by working with municipalities. This has included looking at rental housing licensing and its potential discriminatory impact on Code-protected groups, and calling on municipalities to remove minimum separation distances for group homes.
Landmark settlement addresses needs of inmates with mental health issues in Ontario prisons
We were part of a landmark settlement that focuses on the mental health needs of prison inmates. The September 2013 agreement followed an HRTO application filed by Christina Jahn, a woman with mental illness, addictions and cancer. Ms. Jahn alleged that she was placed in segregation for 210 days at the Ottawa-Carleton Detention Centre because of her mental health disabilities, and that the Ministry of Community Safety and Correctional Services discriminated against her by not accommodating her mental health-related needs.
We intervened in Ms. Jahn’s case to address systemic issues related to mental health services for inmates, as well as use of segregation for inmates with mental health issues.
As part of the settlement, the Ministry committed to change its policies and to only use solitary confinement or segregation as a last resort. It will review how to best serve women inmates with mental illness, set up mental health screening for all inmates, and make sure people who need treatment plans and mental health services have access to them. The Ministry will also train front-line staff and managers on mental health issues and human rights obligations.
Taking a look at methadone
In Minds that Matter, we also heard about discriminatory attitudes and behaviours toward addiction treatment centres and services used by people with mental health disabilities and addictions.
Our research suggested that municipal regulation of methadone health services may create barriers for people with addictions who are trying to access those services. Methadone clients are a highly stigmatized group, and behaviours are often attributed to them based on stereotypes about addictions.
We have contacted several municipalities including London, Belleville, Northeastern Manitoulin and the Islands and Tillsonburg about regulatory bylaws that may have a discriminatory impact on people with addictions, and to stress the necessity of using a human rights lens when making planning decisions.
We will continue to closely monitor and research this issue.
Public education and outreach
We expanded our public education and outreach activities across Ontario to raise awareness about the connection between human rights, mental health disabilities and addictions.
We led many public education events with a range of stakeholders, and took part in consultations, presentations and work with organizations of all sizes across Ontario.
This year in history
Reaffirming the rights of employees with mental illness
In August 2008, the Ontario Divisional Court upheld the finding of discrimination of the Human Rights Tribunal of Ontario in Lane v. ADGA Group Consultants Inc. After being hired as the most qualified candidate, Mr. Lane, a quality assurance analyst, was fired eight days into the job because he requested accommodation for his mental illness. The Court found that the employer had a dismissive attitude towards Mr. Lane and showed disregard for his bipolar condition. When he lost his job, Mr. Lane went into a state of full-blown mania which led to hospitalization for several days, and began a vicious cycle that led to marital breakdown, the loss of his family home, and further instability.
The HRTO held that management terminated Mr. Lane because of his disability and perceptions related to his disability, with virtually “no investigation as to the nature of his condition or possible accommodations within the workplace.” The HRTO also found that ADGA had breached the procedural duty to accommodate, and this itself constituted a form of discrimination. It also rejected ADGA’s argument that Mr. Lane had an obligation to disclose his disability during the hiring process.
Mr. Lane was awarded over $75,000 in damages, and ADGA was ordered to establish a written anti-discrimination policy and retain a consultant to provide training to all employees, supervisors, and managers on the obligation of employers under the Code, with a focus on the accommodating persons with mental health issues.
This decision clarifies what steps employers have to take to accommodate employees with mental illness. Steps include getting information relevant to the employee’s ability to do the job, which may include medical condition, prognosis for recovery, job capabilities and ability to do alternate work.
Sending the message that racism hurts
In 2008, students from kindergarten to grade 8 learned how “racism hurts” and what they could do to combat it, thanks to a unique initiative. The “racism hurts” campaign, a joint effort by the OHRC and the Elementary Teachers’ Federation of Ontario (ETFO), includes a poster and curriculum materials to help teachers begin a discussion with students about human rights, discrimination and racism, and to get students to think about what they can do when they experience or observe racism in their school and in their community. Materials were distributed to more than 3,500 schools across Ontario.
The award-winning poster was designed as a result of the OHRC teaming up with students and faculty from Seneca College’s Graphic Design Program in a course called Design for Social Change. ETFO members volunteered to develop lesson plans. The posters are still in use in schools today.
Steps towards schools that work for all students
After filing a complaint against the Ministry of Education, we negotiated a settlement relating to its safe schools legislation, policies and practices. This April 2007 settlement arose because of a strong perception that the zero tolerance approach of the Education Act was having a disproportionate effect on racialized students and students with disabilities.
This led to amendments in the Education Act so that principals and boards consider mitigating factors before suspending or expelling students, the creation of a new provincial equity policy, and many other steps to embed a human rights focus in our schools. This settlement, along with similar steps with local school boards, have changed our relationship with the education sector, from adversary to partner – to the benefit of students, teachers and families across Ontario.