An interview with Gary Malkowski, Director of the Canadian…

This article is part of a series of interviews with advocates, legal thinkers, community organizers and academics on issues related to Canadian civil liberties produced by CCLA volunteers. All responses are the interview subject’s own, and do not necessarily represent the viewpoint or positions of the CCLA.

 

Gary Malkowski is the Vice President at the Canadian Hearing Society. The society is a non-governmental organization that provides products, services and information designed to increase access to communication and promote equity for people who are culturally Deaf, oral deaf, deafened and hard of hearing.

 

CCLA: What accessibility rights does the law grant?

GM: There’s several levels of rights granted to deaf people: international, federal, and provincial legislation.

For international law, we look to the United Nation’s Convention for Rights with Persons with Disabilities. This treaty has been signed and ratified in Canada and the optional protocol is expected to be signed and ratified in the near future.

Federally, we have Canadian Human Rights Act, which includes the duty to accommodate persons with disabilities and provide translating services for deaf and hard of hearing people. The Act covers all registers federal programs that offer services, all allows deaf and hard of hearing people to get services in employment, housing, and professional or vocation associations. In addition, the government is drafting the Federal Accessibility Legislation that will be introduced in the House of Commons soon.

We also have the Charter of Rights and Freedoms which supersedes all legislation. S 14 of the Charter includes the right to interpreters in criminal and legal proceedings and S 15.1 guarantees the right to equal benefit and equal protection under the law. Two important Supreme Court decisions, Eldridge, and Canadians Associations for the Deaf, require all levels of government to accommodate any requests for a deaf and hard of hearing person if they need an interpreter.

Provincially, in Ontario, we have the Ontario Human Rights Code and the Ontarians with Disabilities Act.

The provisions in the Human Rights Code cover all provincial employers, professional organizations, vocational associations, memberships, and provincially run facilities. This legislation gives a duty to accommodate and provide interpreters.

The Ontarians with Disabilities Act covers organizations over 10,000 people including employees and volunteers. Municipalities for example, are required to have municipal accessibility advisory committees. The Act requires that all these organizations develop an annual accessibility plan, and that all these organizations provide accommodation and accessibility training. It also requires that organizations have internal accessibility and anti-ableism policies.

 

CCLA: What measures are organizations required to take to accommodate deaf and hard of hearing people?

GM: In Ontario, we have the Ontario with Disabilities Act and Ontario Human Rights Code. Both of those require organizations to develop an accessibility or accommodation policy. For anyone who comes in into our offices to receive services, for example, we have a legal duty to accommodate and provide an interpreter upon request. If the deaf or hard of person emails and requests an interpreter, it’s incumbent upon the business or agency to provide one.

 

CCLA: Have these accommodations been met by employers and organizations?

GM:It depends. Government services will absolutely provide an interpreter. Our experience is that the federal and provincial governments will always provide an interpreter upon request. When we look at financial institutions or telecommunication providers like Bell Canada or Rogers, they pretty much provide an interpreter upon request.

I think the issue lies with small businesses. Many feel they cannot financially afford to provide an interpreter. If this happens, deaf people can then contact the Ontario Human Rights Commission to explore the business’s duty to accommodate, However, some small businesses are more than willing to accommodate and some just aren’t aware of their duty. Unfortunately, there is a diverse response when requesting translators.

The reality is that there are few interpreters available to the businesses. This really is becoming a supply and demand issue, where the number of requests cannot be filled because there just isn’t enough interpreters.

In Canada, we have about 180 interpreters to 14 thousand culturally deaf American Sign Language (ASL) users; these few interpreters cannot accommodate the needs of the deaf community.

 

CCLA: How can deaf or hard of hearing people access these interpreters? 

GM: If deaf people require interpreters, they can contact the Canadian Hearing Society, or other interpreter services. They should then contact organization or business they need the interpreter for, and the organizations can receive the billing information to make arrangements.

 

CCLA: What education initiatives are in place to teach sign language and sign language interpreters. 

GM: The Ministry of Education provides language courses on ASL and recognizes ASL as an international language. We here at the Canadian Hearing Society offer ASL classes for anyone in the community looking to learn the language and gain an international language credit.

Across Canada, there are six interpreter training programs: George Brown College in Ontario, Douglas College in British Columbia; The University of Manitoba and Red River College; Nova Scotia Community College; and Lakeland College in Alberta. Additionally, Ontario’s George Brown College offers a deaf interpreter training, along with their ASL program.

These programs usually accept 35 to 40 students in the first year, but by the second year, the number decreases to about 25. They probably graduate on average about 10 to 15 students. Even fewer students meet the standards required to become a nationally certified interpreter. Those who don’t pass can enter an internship program like we have here at the CHS to help develop the skills and capacity to pass the certification test. Though the number of qualified interpreters is growing, it’s still not enough.

 

Can you please describe the difference between deaf interpreters and ASL interpreters?

An ASL-English interpreter is a hearing person who translates between two languages simultaneously: ASL and English. A deaf interpreter, on the other hand, is a deaf individual who is a native user of sign language and can interpret from deaf people to ASL-English interpreters. Deaf interpreters work with people whose sign language is difficult for a hearing interpreter to understand, these include deaf people who are newcomers to Canada, deaf children and those that are physically ill. Deaf interpreters have a special nuance of sign language that a hearing person would not have and often incorporate a number of different strategies to convert an ASL interpreter’s translation into more plain language for the deaf person.

The number of deaf interpreters in Canada is extremely small though they are high in demand. On our roster, we have approximately 20 deaf interpreters. Across Canada, there are maybe 40. They are extremely necessary for some deaf people to have basic communication.

 

CCLA: Can you speak on how court decisions have impacted accessibility in Canada?

GM: In Eldridge v British Columbia, a BC hospital refused to provide an interpreter. The expectation was that people had to bring their own interpreters, similar to spoken language interpreters. One deaf woman, who was pregnant with twins, and another diabetic woman tried to communicate with doctors regarding their conditions and prescribed medication. For both those women, the hospital refused to cover the cost of the interpreters and refused to provide them.

The Supreme Court of Canada ruled that the BC government had a duty to accommodate and provide interpreters, meaning that the BC government then had to provide funds for deaf people’s interpreters. This decision applied to all levels of government and even for private businesses who receive funding from the government.

While the Eldridge decision was in 1997, the federal government still required deaf people to provide their own interpreter. They argued that the ruling only applied to provincial programs. For example, the government had invited me to do career training, but said I had to bring my own interpreter.

At the Canadians Associations for the Deaf v The Queen decision in 2006, The Federal Court of Canada reaffirmed the decision in Eldridge and stated that all federal programs and services had the duty to accommodate, have accessibility policies in place, and provide an interpreter upon request.

 

Further information:

 Canadian Hearing Society’s Press Release on qualifications and standards for professional sign language interpreters

  • World Federation of the Deaf & World International Sign Language Interpreter’s Point Statement on Sign Language Accreditation System
  • Canadian Association of the Deaf Position Paper on sign language interpreting
  • Canadian Cultural Society of the Deaf, the Canadian Association of the Deaf and Association of Visual Language Interpreters of Canada Joint-Statement on sign languages and professional interpreters
  • World Federation of the Deaf -World Association of Sign Language Interpreter International Sign Language Interpreter Accreditation System
  • Canadian Association of the Deaf Research Project on deaf people in the justice system
  • Gary Malkowski’s Video Blog, on the issue of hiring unqualified interpreters in Canada

Workplace Accessibility in Canada

Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA’s own policies or positions. For official publications, key reports, position papers, legal documentation, and up-to-date news about the CCLA’s work check out the In Focus section of our website.

 

The federal and provincial governments strive to protect the rights of those with disabilities in Canada. Yet, to this day, there is no comprehensive Canada-wide legislation regarding disabilities. There are, however, federal statutes, provincial acts and codes and Supreme Court decisions designed to protect disability rights.

Included here is a brief overview of the legislation and case law regarding disability rights in the Canadian workplace.

 

General Protections

Throughout Canada, intentional discrimination by employers is forbidden. Intentional discriminations are sometimes called “direct” or “disparate treatment” discriminations. Courts have found that intentional discrimination includes not only where an employer acts hatefully against a person with a specific difference, but also includes where an employer acts out of stereotyped beliefs about an employee’s ability, even if the employer think their actions are best for the employee. Regardless of an employer’s numerous goals, if their act is found to have been based off false stereotypes, the act is discriminatory.[1]

Indirect discrimination is also prohibited in most provinces and under federal legislation. Indirect discrimination is a policy where exclusion is not expressly stated, but still has a negative effect on a specific group of people.[2] Some discriminatory workplace policies are legal when employers prove the policy’s necessity, often through a Bona fide occupational reason (BFOR).[3]

This liability of discrimination is not just restricted to employers, it may also apply to unions and other employees who refuse to accommodate. Law may require employees to change their practices accommodate disabled employees up until the point of undue hardship. Employees are forbidden under the Canadian Human Rights Act from harassing colleagues for their disability.[4] In addition, unions can be liable for lack of accommodation. For example, if a trade union refuses to make reasonable efforts to accommodate an employee’s disability, both the union and the employer may be liable for discrimination.[5]

 

Employer’s duty to accommodate

Every employer has a legal duty to reasonably accommodate their employees up to the point of “undue hardship.” When asked to accommodate by an employee, an employer must show that they promptly investigated the proposal and give the employee all the relevant information that will likely inform their decision. They must make similar accommodations to similar accommodation requests unless circumstances have changed from the earlier decision. The employer must also consider alternative accommodations different from what the employee requested. They are further required to consult with the employee and others whose input would be valuable for the decision-making process.[6]

The Supreme Court provided the general guidelines on an employer’s duty to accommodate:

  1. The overriding aim of employers must be to make their work rules as inclusive as possible;
  2. The employer must investigate the feasibility of alternative measures that do not have a discriminatory impact, such as individualized testing instead of group based exclusions
  3. The employer must generally adopt an alternative measure that achieves its business goals without having a discriminatory impact on an employee;
  4. The employer must investigate whether its business goals can be met by exempting protected workers or groups of workers from general work standards;
  5. The employer must investigate whether the job can be efficiently performed in a less discriminatory manner than the one initially selected by the employer;
  6. The employer must ensure that its work rules are designed to have the minimal discriminatory impact on employees consistent with meeting its business goals; and
  7. The employer must ensure that third parties, such as fellow employees, a trade union or customers or clients, have also searched for means of accommodating an employee.[7]

 

Duty of Employees:

Employees have a duty toward their employers. Employees must give employers all relevant information that would help their accommodation. For example, if an employer asks for medical information about an employee’s condition to help with accommodation, the employee must provide the information.[8] In addition, the employee must make reasonable efforts to work within the employer’s accommodation.[9]

 

Federal Legislation

 

The Canadian Charter of Rights and Freedoms guarantees equality before the law and equal benefit and protection under the law without discrimination.

Statutes and regulations that discriminate or negatively affect disabled people may not be valid under the Charter. Because of this, disabled employees who cannot often attend work can challenge statutory minimum service and seniority requirements for violating the Charter.

The courts have found that the Charter does not directly apply to employment contracts in the private sector. It also does not apply to contracts involving government agencies except when the government regularly and substantially controls the daily aspects of the agency.[10]

The Canadian Human Rights Act of 1977 bans discrimination when Canadians are employed by or receive services from:

  • The federal government;
  • First Nations governments; and
  • private companies that are regulated by the federal government like banks, trucking companies, broadcasters and telecommunications companies.

The Act protects employees against harassment or discrimination based upon physical or mental disability.

The Employment Equities Act’s purpose is to achieve equality in the workplace so that no one will be denied employment opportunities or benefits for reasons unrelated to their ability. This means more than treating everyone equally and requires special accommodations for differences.

The Act defines persons with disability as people with a long-term or recurring physical, mental, sensory, psychiatric or learning impairment and who:

  1. consider themselves to be disadvantaged in employment because of that impairment, or
  2. believe that an employer or potential employer is likely to consider them to be disadvantaged in employment because of that impairment,

This includes people whose impairments have been accommodated in their current job.

The Act applies to all federally regulated employers with 100 or more employees, including any corporations working on behalf of Canada’s Government. It applies to the federal public administrations described in the Financial Administration Act, including the Canadian Forces and the Royal Canadian Mounted Police.

 

Unique provincial Laws

Quebec: The Act respecting equal access to employment in public bodies prevents discrimination in employment faced by women, handicapped persons, Aboriginal peoples, persons who are members of visible minorities and persons whose mother tongue is neither French nor English and who belong to a group other than the Aboriginal peoples group or the visible minorities group.

Newfoundland Labrador and Saskatchewan: These provinces have legislation that prevents employers from using hiring agencies that engage in discriminatory referral practices.[11]

For more information, please look to individual provincial and territorial laws:

Alberta:

British Columbia:

Manitoba:

Newfoundland and Labrador:

New Brunswick:

Nova Scotia:

Nunavut:

Ontario:

Prince Edward Island:

Quebec:

Saskatchewan:

 

[1] Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] S.C.J. No. 24, [2000] C.L.L.C. para. 230-020at 145,233 (S.C.C.); Holloway v. MacDonald (1983), 83 C.L.L.C. para. 17,019at 16,149 (B.C. Bd. Inq.).

[2] Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 10(a).

[3] British Columbia (Public Service Employment Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] S.C.J. No. 46, [1999] 3 S.C.R. 3 (S.C.C.).

[4] W. Winkler & P. Thorup, “A Duty of Accommodation and Its Implications for the Employer” (1992) 1 C.L.L.J. 209 at 231-32

[5] O.P.E.I.U., Local 267 v. Domtar Inc. (No. 4) (1990), 12 C.H.R.R. D/161 (Ont. Bd. Inq.), affd [1992] O.J. No. 555 (Ont. Div. Ct.).

[6] British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] S.C.J. No. 46, [1999] 3 S.C.R. 3 at 37.

[7] British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] S.C.J. No. 73, [1999] 3 S.C.R. 868 at 882 (S.C.C.); British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] S.C.J. No. 46, [1999] 3 S.C.R. 3 at 36-37 (S.C.C.).

[8] Metsala v. Falconbridge Ltd., Kidd Creek Division, [2001] O.H.R.B.I.D. No. 3, [2001] C.L.L.C. (Ont. Bd. Inq.).

[9] Handfield v. North Thompson School District No. 26, [1995] B.C.C.H.R.D. No. 4, 95 C.L.L.C. para. 230-015 at 145,168 (B.C. Council).

[10]R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd., [1986] S.C.J. No. 75, 87 C.L.L.C. para. 14,002; Lavigne v. Ontario Public Service Employees Union[1991] S.C.J. No. 5281 D.L.R. (4th) 545(S.C.C.).

[11] (NL) Human Rights Act, 2010, S.N.L. 2010, c. H-13.1, s. 14(3); (SK) Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 16(3.1).

The Current State of Mental Health in Canada

Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA’s own policies or positions. For official publications, key reports, position papers, legal documentation, and up-to-date news about the CCLA’s work check out the In Focus section of our website.

 

Healthcare in Canada is governed by the Canada Health Act. The objective of the Canada Health Act is to protect, promote and restore the mental and physical well-being of Canadians and to ensure reasonable access to health services regardless of personal factors such as income, education or cultural differences. With funding from the federal government, provinces and territories are required to provide coverage for health services that are deemed to be “medically necessary” for the purposes of maintaining health, preventing disease, and diagnosing or treating an injury or disability. This requirement typically covers all in-patient treatments such as those you would receive in a hospital or physician’s office.

The scope and coverage of “medically necessary” has not gone without protest. There are still several services that remain either unfunded or only partially funded. Many Canadians have likely encountered this gap upon visits to the dentist or optometrist where only partial coverage, if any, is available. However, these aren’t the only areas where calls for further funding have been made. There’s often an overlooked health service, despite its necessity in treatment and maintaining one’s overall health. That service is mental health.

Mental health has long been recognized as a fundamental aspect of one’s health, however under our current health regime the majority of mental health services do not meet the eligibility requirement of “medically necessary.” Unless received in a hospital, psychological services must be paid for out-of-pocket or covered by private third-party insurance. This means that weekly visits to psychiatrics or counsellors come at one’s own expense. This, despite recognition that health is a fundamental right for all Canadians, with mental health being one such component of one’s overall health.

With the burden of paying for one’s mental health left to the individual, it is not surprising that so many Canadians put mental health concerns on the backburner. The Mental Health Commission of Canada states that while 1 in 5 Canadians will experience mental health challenges in any given year, only 1 in 3 actually report seeking treatment.  A CBC report claims that stigma surrounding mental health costs employers $20 billion a year. Lack of access to mental health services and unfriendly environments to discuss mental health lead to absenteeism, lack of productivity and rising claims among employees. Among a variety of workplaces, psychological problems make up 70% of disability costs. Workplace aside, mental health claims can cost the Canadian economy upwards of $50 billon according to the Mental Health Commission. These costs have raised cause for concern.

The lack of accessibility to mental health services has led healthcare providers, researchers, policy experts to make calls for Canadian health care reform. One such call has been for the creation of a federal plan to tackle the historically neglected area of mental health. Although the provinces and territories have adopted Mental Health legislation specific to them, the federal government has yet to draft legislation which would be binding on all. National legislation may be beneficial in ensuring consistent access to mental health services across the country and could help bring an end to discrimination suffered by those experiencing mental health difficulties.

The government has taken some steps to address these calls for reform. The Mental Health Commission of Canada (“The Commission”) was created in response to a 2007 report called “Out of the Shadows,” which called for greater government intervention in rising mental health concerns. The Commission is an arms-length independent agency acting under the federal government whose mandate was to draft the first mental health strategy for Canada. Their 2012 Strategy, “Changing Lives, Changing Directions” marks a change in approach to bring mental health out of the shadows and into the forefront of Canadian policy. They claim to bring justice to the meaning that there can be no health without mental health.

The Strategy takes a holistic approach acknowledges that we will not reduce the impact of mental health problems through treatment alone. In their Strategy they state that we must pay more attention to the promotion of mental health and prevention where possible, and encourage and facilitate open conversations and advocacy surrounding mental health. The Strategy further acknowledges that this is not the problem of the health sector alone but requires collaboration among multiple government departments (e.g., justice, education, finance, social services) and non-governmental actors such as workplaces, the media and members of the community. With all the compelling evidence for the efficacy of prevention and promotion programs and rising costs of neglecting to address mental health ailments, the Commissions claims that as a country we cannot wait any longer.

Gathering scientific evidence, academic and political commentary and supplementing it with the testimonies of thousands of Canadian’s living with mental health problems and illnesses, the Strategy channels its vision into six recommendations for action. The six Strategic Directions are stated below (and follow this link for more details):

  1. Promote mental health across the lifespan in homes, schools, and workplaces, and prevent mental illness and suicide wherever possible.
  1. Foster recovery and well-being for people of all ages living with mental health problems and illnesses, and uphold their rights.
  2. Provide access to the right combination of services, treatments and supports, when and where people need them.
  3. Reduce disparities in risk factors and access to mental health services, and strengthen the response to the needs of diverse communities and Northerners.
  4. Work with First Nations, Inuit, and Métis to address their mental health needs, acknowledging their distinct circumstances, rights and cultures.
  5. Mobilize leadership, improve knowledge, and foster collaboration at all levels.

Due to the historic neglect of mental health, the Commission acknowledges that change will be slow. Their proposed approach for funding calls for incremental changes over an extended period of time. Objectives include increasing the proportion of health spending that is devoted to mental health from seven to nine per cent over 10 years; increasing the proportion of social spending devoted to mental health by 2%; identifying areas for re-allocation of current mental spending to improve efficiency and achieve better outcomes; and to engage the private and philanthropic sectors in contributing resources to mental health. A report into mental health spending released by the Canadian Mental Health Association (“CHMA”) in 2014 affirms the reasonableness of these targets. However, as of 2016 the CHMA confirms that no changes in the funding for mental health services has been made.

Overall, the Strategy sets realistic goals and places mental health as a task for all Canadians. Since it has been 5 years since the release of the Strategy, this leads us to ask where are we now? Mental health has received increased attention in media, political discourse, and legislation or strategies for certain groups (e.g., the RCMP and Corrections), especially as awareness and de-stigmatization movements grow in size and force. While pieces of the Commission’s 2012 strategy may have been considered in the creation of these spin-off, limited headway has been made for the creation of national legislation and changes in health care spending. The CHMA states that while the Canadian federal government increased public-funding transfers for health care by $6.6 billion in 2014, it has not assigned any of these payments to the provinces to improve mental health. As previously noted, spending on mental health still remains at 7%.

Residual stigma and hesitance to increase public funding provide the most obvious explanations for the lack of action. How to launch reform into health care, in terms of policy and spending, is indeed a real concern for legislators. In Spring 2016, Justin Trudeau vowed to provide more support for mental health, both in regards to de-stigmatization and increased public spending. It’s possible change could be on the horizon. The Liberal government plans to negotiate a new Health Accord with the provinces that will make mental health more accessible. Letters sent to Premiers on September 28, 2016 signal that the initial stages of this new Health Accord may be underway. The letter states that there may be some strings attached for any new money the government earmarks for health. Could this finally mean the realization of the Strategy, and a better further for mental health in Canada? One would hope, as improved accessibility to mental health services was a key policy platform for the Liberals in their election campaign.

Government action on mental health could lead to decreased stigma by making mental health services more accessible. As the Commission notes in their strategy, the government must crave the path for bringing mental health out of the shadows through policy and funding. If we make services easier to access this could have the effect of encouraging Canadians to reach out for help, and would encourage open discussion about mental health in our society. This in turn could help improve mental health outcomes and reduce the daily discrimination many Canadians suffering with mental health may experience in their personal and professional lives.

 

Sources:

  1. http://www.hc-sc.gc.ca/hcs-sss/medi-assur/faq-eng.php#a3
  2. http://toronto.cmha.ca/files/2014/04/Executive-Summary-1.pdf
  3. http://www.cbc.ca/news/business/mental-illness-workplace-1.3295242
  4. http://globalnews.ca/news/3052891/justin-trudeau-promises-more-support-for-mental-health-on-its-way/
  5. http://www.cbc.ca/news/politics/justin-trudeau-heath-care-battle-with-provinces-1.3791173
  6. https://www.liberal.ca/realchange/a-new-health-accord/
  7. http://www.cmha.ca/media/fast-facts-about-mental-illness/
  8. http://www.rcmp-grc.gc.ca/fam/ptsd-tspt-eng.htm
  9. http://www.csc-scc.gc.ca/health/092/MH-strategy-eng.pdf
  10. http://ywcacanada.ca/data/research_docs/00000016.pdf
  11. http://strategy.mentalhealthcommission.ca/strategy/summary
  12. http://www.cmha.ca/news/cmha-is-calling-for-increased-mental-health-funding/
  13. https://www.canada.ca/en/sr.html?cdn=canada&st=s&num=10&langs=en&st1rt=1&s5bm3ts21rch=x&q=mental+health+strategy&_charset_=UTF-8&wb-srch-sub

Talking About Community Treatment Orders and Discrimination

Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA’s own policies or positions. For official publications, key reports, position papers, legal documentation, and up-to-date news about the CCLA’s work check out the In Focus section of our website.

An Overview:

In 1995, an ex-National Hockey League player Brian Smith was killed by Jeffrey Arenburg, a family man who had paranoid schizophrenia. Jeffrey heard voices from broadcast towers and believed that killing a broadcaster would get rid of the voices. After a period of being in hospital and with a legal hearing, Jeffrey was living amongst a community and had plans to live close to his daughter. The media portrayed Jeffrey as nothing more than a killer with senseless motives. In 2000, “Brian’s Law” (named after Brian Smith) was introduced in Ontario in response to the public’s fear that patients were going off medication, refusing treatment, and were a danger to the community. 

Brian’s law includes something called a Community Treatment Order (CTO). A CTO is a legal order made by a physician or psychiatrist. It outlines the conditions that a patient leaving a psychiatric ward has to meet in order to live in a community setting.  A CTO allows a psychiatrist to call police to bring patients in for an assessment if they fail to comply with the treatment plan that goes with the Order. In Canada, all jurisdictions except New Brunswick and the Territories use CTOs or comparable legislation.

The plan creates conditions which are listed in what is called a Community Treatment Plan, and can include such things as required medication, medical appointments, and staying away from drugs and alcohol. It may even specify the area they can live in; in general, any requirements that the doctor believes are necessary to allow the patient to live in the community may be part of the plan. It is a form of compulsory treatment, because if the patient does not comply and is said to be unfit to live in the community by the doctor, they must remain (or possibly be) institutionalized.

In a situation in where the patient is said to be “incapable”, there will be a “substitute decision maker” (SDM).  This means that if a patient is considered unable to understand the benefits and consequences of making a decision for their treatment, someone will be asked to make decisions on their behalf. There is a list of possible SDM’s, with the patient’s guardian ranking highest, that is used to determine the appropriate person to have decision-making power. 

A person can be put on a CTO if he or she has a “severe” mental illness and meets all six of the following conditions:

1. During the past three years:

  • The individual has been a patient in a psychiatric facility two or more times, or for a total of 30 days or more,
    OR
  • The patient has previously been on a CTO.

2. The community treatment plan must have been made with the input of the patient, the substitute decision maker, the doctor and any others involved in their care.

3. The doctor has examined the patient in the 72 hours before the community treatment plan is entered into and the doctor believes the following 5 things:

  • The patient is suffering from a mental illness that requires continuing treatment while living in the community
  • If patient is not currently a patient in a psychiatric facility, they clearly meet the conditions for a psychiatric assessment.
  • If the patient doesn’t receive continuing treatment, it is likely that the patient will cause physical harm to themselves or someone else, or the patient will experience severe mental or physical decline.
  • The patient is able to comply with the plan.
  • The treatment that is described in the plan has to be available in the community.

4. The doctor has spoken to and consulted with all the people named in the plan.

5. The doctor is satisfied with the patient and their substitution decision makers have consulted with a rights advisor and have been informed of their legal rights.

6. The patient or their substitute decision maker agreed to the plan.

What’s the problem?

Community Treatment Orders are controversial: on one hand there are those who support CTOs on the grounds that it offers a less restrictive alternative to hospitals; on the other hand there are those who say that it is “coerced” treatment and it violates the patients’ rights. Indeed, those who support CTO’s argue that in many cases the patients do not have insight into their condition (they do not think they have a mental illness) and society has an obligation to “care for citizens who cannot care for themselves” (see the article by Dr. O’Reilly, linked below). Another major argument for Compulsory Treatment Orders is that it reduces the number of patients who become victims of harm or abuse, but studies of aggressive incidents and hospitalization rates have given inconclusive results. It is not clear whether or not CTO is effective in meeting this goal.

The issue is complicated by public misconceptions and fears about mental illness, as seen in the case of Brian Smith. The rare incidents of violent crime attract media attention, coverage which often feeds fear, such as in the highly publicized case of Vince Li, later diagnosed as schizophrenic and not criminally responsible, who beheaded Tim McLean on a Greyhound bus in Manitoba in 2008. When Vince Li was allowed to leave the Mental Health Centre where he was sent for treatment on supervised visits in 2013, the public attitude, fanned by headlines such as “The Man Who Decapitated His Seatmate on a Greyhound Bus is Set to be Released”, was fearful. Mr. Li, in response, stated “Mental illness is an illness. It is treatable. My schizophrenia is not the real me, but it is an illness.” (see the interview with Mr. Li here ) 

The use of CTOs is on the rise but there are those who argue that the outcome of CTOs does not justify the restrictions put on the patient’s liberties. There is a concern that attempts to coerce patients into treatment is to make the public feel safe, particularly because the media can create a false link between mental illness and violence. There is also a concern that CTOs may be used to compensate for under-resourced facilities for individuals with mental health challenges, and a general lack of funding for mental health services. In addition, CTOs have been criticized on ethical grounds; some opponents of CTOs question the impact on fundamental human rights for the patients when doctors are given the power to define what someone can or cannot do in their life. It also raises the question of whether “recovery” can have real value if treatment is done against the patients will as it also may damage the necessary ongoing relationship between the patient and their treatment team.  Another problem with consent is that CTOs are based upon considerations of risk and harm instead of the patient’s capacity to consent. It is argued that if patients are not actually a risk to others but rather are a risk to themselves, CTOs may be considered discriminatory; after all, there are lots of people who take risks that are potentially dangerous, such as smoking.

As you can see, CTOs are a contested practice.  Should the need to provide adequate and effective care for vulnerable people take precedence over a patients’ right to determine the course of their treatment? How are decisions about competence made, how should they be made,  and is the practice of CTOs grounded in medical principles and genuine need, or affected by stigma and fear? The answers to these questions are contextual and extremely difficult, involving clinical, legal, social, and philosophical issues. If you would like to learn more, this is a good place to start: “Why Are Community Treatment Orders Controversial?” You can also see our interview with the author of this piece, Dr. Richard O’Reilly, and browse our collection of news stories and resources.

An Overview of Relevant Legislation Related to Mental Health…

Looking to learn about laws connected to issues of mental health, addiction, and disability in Canada but don’t know where to start? Check out this collection below.

Federal

Ontario

Alberta

Saskatchewan

Manitoba

British Columbia

Newfoundland and Labrador

Nova Scotia

New Brunswick

Northwest Territories

Nunavut

Prince Edward Island

Quebec

Yukon

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