November 3, 2016
Dr. Joel Kirsh
College of Physicians and Surgeons of Ontario
80 College Street
Toronto, Ontario M5G 2E2
Dear Dr. Kirsh:
Re: OHRC Policy on ableism and discrimination based on disability
The Ontario Human Rights Commission (OHRC) has recently released a Policy on ableism and discrimination based on disability. This update of the OHRC disability policy originally released in 2000 includes updated case law and addresses emerging issues. It provides guidance on rights and responsibilities under the Ontario Human Rights Code (“the Code”) and I am writing to urge you to share this policy with members of the College of Physicians and Surgeons. I also want to highlight in particular the issue of medical documentation for accommodation of disabilities and draw your attention to sections of the policy which can provide guidance to physicians about this issue.
Under the Code, employers and unions, housing providers and service providers have a legal duty to accommodate the needs of people with disabilities who are adversely affected by a requirement, rule or standard. Physicians have an important role to play when persons with disabilities are seeking accommodations which will allow them to equally benefit from and take part in services (such as education), housing or the workplace. Accommodation providers such as schools and employers rely on the expertise of physicians to understand the functional limitations and needs associated with a disability in order to implement appropriate accommodations. Those seeking accommodations rely on physicians to provide clear, timely information about their disability-related needs, while still respecting their privacy interests.
In our work, we have seen that there are challenges relating to medical documentation of disabilities and the needs associated with those disabilities in the accommodation process. We have encountered circumstances in which people with disabilities have been unable to gain equal access to services or employment because of ambiguous medical notes that do not provide enough information to allow for meaningful implementation of appropriate accommodations. We have also encountered circumstances in which overly intrusive requests for medical documentation from employers and others create barriers for people with disabilities. Unwarranted requests for private medical information – such as diagnostic information – undermine the dignity and privacy of people with disabilities.
The OHRC has recently been involved in work relating to medical documentation guidelines for post-secondary students with mental health disabilities who are seeking academic accommodations. The OHRC intervened in a legal case that raised the issue of the requirement to disclose a diagnosis (in addition to functional limitations created by the disability) in order to receive academic accommodations at a university. The case was settled. The parties worked collaboratively to develop revised documentation guidelines that minimize barriers for students with mental health disabilities while still maintaining academic integrity and ensuring that the university gets medical documentation to help determine appropriate academic accommodations. Students will no longer be required to disclose a mental health diagnosis. Instead students can provide medical documentation from a licensed health care provider, which confirms the existence of a mental health disability (or that the student is being assessed for a possible disability), and the associated functional limitations that require accommodation. The OHRC has written to all public colleges and universities in Ontario, requesting their commitment to implement similar measures that will enhance access to education for students with mental health disabilities.
The human rights principles relating to accommodation, which arose in the post-secondary context have broader application. In all social areas (including employment, services, housing and membership in unions), replacing an emphasis on diagnosis with a focus on functional limitations associated with a disability allows for the implementation of appropriate accommodations that respect the dignity and privacy interests of people with disabilities.
The OHRC’s Policy on ableism and discrimination based on disability provides comprehensive guidance on rights and responsibilities under the Code. I invite you to review and share this policy with members of the CPSO. The policy also provides practical information about the issue of medical documentation as it relates to accommodation of disabilities. Sections of the policy that address the legal meaning of disability (pages 8-10), roles and responsibilities of the parties in the human rights accommodation process (pages 41-43) and the medical information that should and should not be requested when a person seeks an accommodation (pages 45-48) are of particular relevance on this issue. In the coming months, the OHRC will also be releasing a policy statement on medical documentation of disabilities and the accommodation process.
I have attached a copy of the policy, which can also be found on the OHRC’s website (www.ohrc.on.ca/en/our_work/policies_guidelines). I am hopeful that it will be a useful resource for further educating CPSO members about rights and responsibilities under the Code. I am confident that doing so will go a long way towards enhancing the rights of people with disabilities as enshrined in the Code.
Renu Mandhane, B.A., J.D., LL.M.
CC: Dr. Virginia Walley
President – Ontario Medical Association