9th Annual MJLH Colloquium in Review: Indigenous Health and Access to Medicines in Canada

Posted By Chris Laliberté

On Saturday, February 11th, the McGill Journal of Law and Health hosted its ninth annual Colloquium Event. Held in the Moot Court, the event titled “Access and Equity: Indigenous Health and Law in Canada” featured two panels of experts and activists who regularly engage with First Nations peoples and the challenges they face accessing healthcare in Canada.

The morning panel featured Dr. Cindy Blackstock, PhD, Professor Larry Chartrand, and Dr. Janet Smylie, MD, MPH. The discussion centred on the systemic and social barriers to equitable healthcare for First Nations peoples.

Dr. Blackstock discussed the dissonance between the Crown’s spoken intentions to provide aid to First Nations communities and the repeated use of technicalities to defeat cases before the court can address the merits. In particular, she cited an instance where the Ministry of Indian Affairs failed to provide emergency aid funding for suicide prevention programs because the requests came at an awkward time in the funding cycle. Of the $200M needed, only one third – $60.38M – made it to the communities in desperate need of help.

“If it’s not good enough for the Canadian Human Rights Tribunal, why is it good enough for you?” –Dr. Cindy Blackstock on Parliament’s excuses for inaction on First Nations issues

Next, Prof. Larry Chartrand offered a critical perspective on Hamilton Health Sciences Centre v. D.H., clarifying the contentious points as regards the application of s. 35 Aboriginal Rights. Chartrand argued that Western interpretations and applications of the law tend to ignore the collective nature of Aboriginal Rights so as to threaten their independence and render them meaningless. In fact, the imposition of Western notions of the “best interests of the child” inherently denies the sovereignty of First Nations peoples and the principles of First Nations law—such as the Haudenausonee nation’s core tenet to act in the best interests of their children. In the spirit of reconciliation, Chartrand asked neither agreement or even endorsement, only understanding, trust, and respect for First Nations peoples’ self-determination in healthcare.

Dr. Janet Smylie, as a practicing physician, recounted her first-hand experiences with the injuries and deaths suffered by First Nations patients due to negligence motivated by racist assumptions among hospital staff. Smylie emphasized the need for intersectional approaches to law and healthcare, pointing to systemic, epistemic, and attitudinal racism as predominant barriers to the equitable provision of health services. She cited the tragic Brian Sinclair case and the demonstrable failure to provide emergency interventions for First Nations patients as examples of death by discrimination. To combat the underlying prejudicial effects of colonialism on the health of First Nations peoples, hospitals and staff in Canada must implement anti-racist training and practices to account for unconscious bias and provide more equitable care.

untitled1.png

 

After a short lunch, the afternoon panel featured Mr. Normand D’Aaragon, Dr. Christopher Lalonde, PhD, and Dr. Ronald Niezen, PhD. The discussion centred on the causal relationships underlying the high rates of suicide among many First Nations communities, and means of addressing this crisis.

Mr. Normand D’Aragon opened the afternoon with a discussion of his work helping First Nations families heal the wounds of intergenerational trauma due to a history of colonial violence and oppression. D’Aragon relayed his experiences working with two families. The first family, he said, had lost their eldest son to suicide, and feared for the well-being of their second. He traced their family’s story to the grandmother’s two brothers, who never returned from residential schools. Future sons in the family, he said, were deprived of their individuality as a result of the unresolved grief over the ancestral loss of life. Another case concerned a family in which a girl who attempted suicide had lost three cousins and an uncle to self-harm. D’Aragon traced this grief back to the trauma of the great grandparents, who lost five children in infancy due to toxic water on the reserve and neglectful treatment at the hospital.

Dr. Christopher Lalonde presented his team’s work quantifying the suicide crisis among First Nations communities so as to identify pain points and causation in an effort to direct and distribute interventions that will result in healing for the affected communities. Among other misrepresentations, Lalonde dispelled the implication conveyed through the media that being of First Nations heritage is itself a risk factor for suicidal ideation, an idea he described as “insulting and clearly false”. In fact, First Nations communities show immense variability in suicide rates by health region and census region, with over half showing a 0 rate of suicide. The data collected by Lalonde’s team suggest an inverse correlation between the suicide rate and a variety of social factors, including cultural continuity, inclusion of women in government, political autonomy, and access to mentorship and education services. Communities proved healthiest when granted the autonomy to preserve and promote traditional practices while navigating a clear and unified path towards the future.

“Give Cindy Blackstock all the money she ever asks for.” –Dr. Christopher Lalonde on activism for First Nations peoples access to medical care

Dr. Ronald Niezen concluded the panel by recounting his experience working with First Nations communities, and his observations as to the social patterns underlying the development of suicide crises. In the six months he spent working with intervenors on the reserve, there were 144 reported interventions and 9 suicides. Niezen explained that suicide clusters like this one emit a certain social influence that encourages mutual action, and that the ideation of suicide spreads throughout the community as a response to colonial trauma. He also expressed concerns that the publicity given to interventions creates a tension between the call to action for relief funding and the risk of stereotyping First Nations peoples in the public perception.

Recap of the 9th Annual MJLH Colloquium: Assisted Reproduction Law Reform Post-Term in Canada

Posted By Chris Laliberté

On February 6, 2016, the McGill Journal of Law and Health hosted its 9th annual Colloquium to explore the legal framework surrounding assisted reproduction practices in Canada. The controversial issue brought together doctors, lawyers, and professors to discuss the impact of the Assisted Human Reproduction Act (AHRA) and the criminalization of third-party reproduction on Canadian families.

Panelists for the day included fertility law practitioners Sara R. Cohen and Sherry Levitan, doctors Arthur Leader and Neal Mahutte, and professors Margaret Somerville and Françoise Baylis.

Me Sara R. Cohen opened the discussion with a practical, what she called “on the ground”, perspective of the issue through her work with clients seeking to start a family through surrogacy. She spoke about how in her work with Fertility Law Canada, she aims to help hopeful parents-to-be overcome the complex legal hurdles that mark the track from the pre-conception planning stage to the finalization and execution of the surrogacy contract.

Me Cohen argued that the state of the law in Canada, in particular the criminal sanctions imposed pursuant to s. 6(1), 6(2), 6(3) and 7(1) of the AHRA, contravene the regulatory purposes of protecting women who wish to provide surrogacy services, and families who have chosen surrogacy as the preferred, and in some cases, only means to start a family. For example, the s. 6(1) prohibition on payment has created a spirit of secrecy due to fear of harsh penalties under the law, says Me Cohen. Although she admitted to no knowledge of charges brought against women offering surrogacy services or the families who hired them, the practitioner emphasized that the threat of enforcement alone causes harm through engendering reproductive tourism and a lack of medical safety from deregulation.

Professor Margaret Somerville then took the podium to defend the Canadian criminal prohibitions as a means of preventing the commodification of human lives and bodies. She first contended that the current debate suffered from an error in perspective: the needs of the parents are placed at the forefront while the best interests of the child are seemingly left out of consideration. Professor Somerville went on to claim that the child, in the context of a surrogacy contract, is treated as a product rather than as a party. Her reasoning framed the discussion as a conflict between the rights of a child to a happy life and the rights of adults to be parents. She argued in defense of a child’s right to the equal freedom afforded by a natural birth through the “genetic lottery” rather than the predestination of a genetic design, which she likened to manufacturing a product.

Professor Somerville also argued that the decriminalization of surrogacy services would threaten the safety of socioeconomically disadvantaged women, who are most vulnerable to exploitation. She compared the power dynamics to those involved in prostitution, making the claim that consent to these arrangements cannot be free and enlightened when a woman in a desperate situation has to choose between offering her body or starving. Me Cohen would rebut this point during the Q&A period, arguing that the situation is not so bleak in the Canadian context, and that proper regulation would advantage and empower women in our healthcare system, not subject them to exploitation.

Professor Françoise Baylis closed out the first half of the day with a critical look at what the legislation states and, with greater scrutiny, what it fails to say. In her presentation, she argued that although the legislation, as it is written, clearly defines the state of the law, Health Canada’s reliance on an evasive interpretation of outdated legislation allows for uncertainty due to voluntary omissions where clear regulatory guidelines could dispel any need for quasi-legal circumnavigation. A defined regulatory framework would allow purchasers and providers of surrogacy services to understand how best to proceed without risks of sanctions. Further, the inaction of Health Canada in enforcing the current legislation only creates greater confusion as to what is and is not permitted, or, what will be allowed in spite of the statutes.

Dr. Arthur Leader, a specialist in fertility treatments, opened the second half of the Colloquium with a brief, but insightful comparison of the legislation regarding in vitro fertilization (IVF) and surrogate pregnancies in the UK and in Canada. His presentation holds the UK model as an example for what fertility medicine regulations could look like in Canada after substantial revision. The Canadian model could better serve its people by lifting or loosening restrictions on surrogacy and IVF research and treatment, which would allow the Canadian healthcare community to drive innovation in the field and give Canadian citizens domestic access to the services they need, rather than forcing them to travel abroad.

The Q&A session that followed, co-chaired by Dr. Leader, Dr. Neal Mahutte, and Me Sherry Levitan, touched on a broad spectrum of issues faced by legal and medical practitioners in the field of assisted reproduction. The panel responded to concerns ranging from the framework for IVF funding, to the lack of statutory guidance in disputes over the ownership of frozen embryos, to the effects of donor anonymity on a child’s rights to access their medical history.

Overall, this year’s colloquium has made clear that the legal framework surrounding third-party reproduction in Canada remains oblique at best. As legislators continue to grapple with ethical concerns and struggle to keep pace with advances in medical technology, the absence of clearly defined regulations poses many challenges for Canadians in need of these services to start a family. Until the government addresses this gap in the law, collaboration between fertility doctors and fertility lawyers will continue to prove invaluable in granting these families access to the treatments and services they require.

To join in on the discussion, make your voice heard on the MJLH website, Facebook page, or Tweet @McGill_JLH. For those interested in getting involved with fertility law, Dr. Baylis invites passionate writers to contribute to her website, Impact Ethics. For law students interested in the practice of fertility law, Me Sherry Levitan invites you to contact her about a student position with her firm in Toronto.

The Not Criminally Responsible Reform Act : a Recap of the MLJH annual Colloquium

Posted By Sabrina Mach & Katarina Daniels

At this year’s annual MJLH colloquium, six distinguished speakers presented their perspectives on the Not Criminally Responsible Reform Act, which received Royal Assent on April 11, 2014. The speakers were, in order of presentation: Dr. Patrick Baillie, Mental Health Commission of Canada; Dr. Renée Fugère, Institut Philippe-Pinel de Montréal; Dr. Archibald Kaiser, Schulich School of Law and Department of Psychiatry at Dalhousie University; Officer Michael Arruda, Service de police de la Ville de Montréal; Dr. Hy Bloom, Adjunct Professor at the University of Toronto’s Faculty of Law and Assistant Professor in the Department of Medicine; and, the Honourable Justice Mr. Richard Schneider, Chair of the Ontario Review Board. The Colloquium was moderated by Professor Alana Klein from McGill’s Faculty of Law.

The speakers each began their presentations by highlighting the amendments to the Criminal Code brought by the Not Criminally Responsible Reform Act, and critically analyzed the new Act’s merits and pitfalls. There was a general consensus that the reform was unnecessary, that it was not research-based, and that it would generate more problems than solutions – as Justice Schneider argued, the Act is a “bad solution to a problem that does not exist”. The speakers also presented reform paths that would better protect Canadian society, the underlying goal of the Act.

Important changes brought by the Not Criminally Responsible Reform Act

The Not Criminally Responsible Reform Act amends the Criminal Code’s mental disorder regime. In particular, the Act targets the Not Criminally Responsible (NCR) defence. As explained by Dr. Baillie, the defence is available to any accused suffering from a mental disorder that renders him or her incapable of appreciating the nature and quality of the criminal act.

According to the federal government, the Act is part of their commitment to “protecting victims of crime and to making streets and communities safer for Canadians”. This is evident in the Act’s first major amendment: identifying “safety of the public” as the primary concern in court and Review Board decision-making processes relating to NCR accused. Our speakers suggested that the link between the mentally ill and public security was created by the Conservative government in response to the recent highly sensational cases of Vince Li, Guy Turcotte and Allan Schoenborn – mentally ill individuals who committed horrific acts. Indeed, as Dr. Kaiser pointed out, the Conservative Party’s “Tough on Crime” website uses Vince Li as a poster boy for NCR reform.

The reform also creates a high-risk designation to protect the public. “High-risk” NCR accused will be held in custody in a hospital and will not be released by a review board until the courts revoke the designation. Additionally, a high-risk NCR accused would not be allowed unescorted visits into the community. Dr. Fugère noted that these leaves are an important part of therapy, but left unanswered whether the treatment process would be seriously compromised by this change.

Lastly, the reform enhances the rights of victims. Dr. Fugère clarified that victims are now notified when an NCR accused is discharged absolutely or conditionally, and can also be informed as to where the accused eventually resides. Officer Arruda argued that this change perpetuates stigma of the most vulnerable in society. He also made this striking comparison: individuals who have not been found guilty of a crime will have their private information shared with victims once they have been reintegrated into society, while individuals who have been found guilty of sexual assault crimes maintain their privacy.

Merits and Pitfalls of the Not Criminally Responsible Reform Act

The speakers all agreed that concern for public safety should be paramount in any legislation, but that the Act did not meet this goal. The main criticisms were: it is unjustified and unnecessary, it increases stigma in society, it creates financial problems for hospitals and provinces, and it reduces the support given to the mentally ill.

First, all speakers agreed that the new Act was not driven by sound research and policy. Dr. Fugère claimed that it is a purely political response void of any evidentiary support. Dr. Kaiser argued that it is unnecessary given the incremental progress that had been made under the previous reform following Swain. Interestingly, Justice Canada did commission the Mental Health Commission to prepare data on NCR accused before the bill was drafted. According to Dr. Baillie, however, the data was seemingly ignored: NCR findings occur in less than 1.8/1000 criminal cases in Canada and the recidivism rates of NCR accused are very low. The new legislation might therefore apply to fewer than 7 cases per year in Canada.

Second, many of the speakers emphasized the added stigma from the new “high-risk” designation. Dr. Bloom noted that with the new designation, there is now the possibility of “quadruple stigma”: they are deemed psychiatric patients, forensic patients, criminals, and possibly high-risk accused as well. Officer Arruda also explained that it is illogical to give a title to the NCR when criminals are not given one. This stigmatization will make it more difficult for NCR individuals to reintegrate into society.

Third, the Not Criminally Responsible Reform Act will be very costly to implement. All “high-risk” accused will be forcibly detained in hospitals. As a result, the number of hospital beds will have to increase – at a cost of $500 to $700 per day, according to Dr. Bloom. Dr. Fugère highlighted the need for more psychiatric experts in hospitals to treat these patients. These costs will fall on the provinces, which are responsible for health services.

Finally, the “high-risk” designation is said to worsen rather than improve the support given to the mentally ill. Justice Schneider calls this implication the real problem and grand irony of the Act. The new designation will discourage mentally ill individuals from entering the NCR system due to the mandatory detainment provision. Consequently, they will choose to go to prison instead, where they will not get the proper care required. This lack of treatment will in turn increase the probability of recidivism once these individuals are released. In Ontario, for example, Justice Schneider noted that there has been a 20% drop of NCR cases since the introduction of the new Act. The reform thus has the indirect effect of deteriorating the care available to the mentally ill, defeating the goals of the legislation.

Alternate paths of reform

The speakers suggested alternatives to the Act that would better respect the rights of the mentally ill and better protect society. Dr. Kaiser suggested that we should strive as a community to improve the condition of the mentally ill: law students should be encouraged to do pro bono work in the criminal justice system, and we should build on the foundations of human rights law for the mentally ill by ensuring that Canada respects its responsibilities under the UN Convention on the Rights of Persons with Disabilities and ratifies the Optional Protocol. Dr. Kaiser also advocated for resistance to the Act, encouraging everyone to write to his or her local MPs.

Justice Schneider argued that in order to reduce the number of criminal offences by NCR accused, the civil system should treat mental illnesses before they deteriorate to a point of criminality. He explained that prior to committing a criminal act, many accused were already in contact with civil mental health institutions. He considered a forensic patient to be a failed civil patient. Additionally, Dr. Kaiser and Dr. Baillie noted a correlation between poverty, mental illness and crime, and suggested a need to intervene on that level.

What to expect?

Our panel of experts agreed that we should expect a lot of Charter litigation in the future. Justice Schneider asserted that the Supreme Court of Canada will turn this Act around when it gets the opportunity. However, the opportunity for Charter litigation seems limited: to date, the amendments to the Criminal Code have only directly affected one individual. Additionally, many provinces have ordered their Crown Prosecutors not to seek “high risk” designation until the issue is resolved by the Supreme Court in order to avoid the high costs of potential Charter litigation. It remains to be seen when and whether the Act – as a whole, or in part – will be overturned.

———-

Thank you for reading our recap. The recording of the event can be found by clicking this link. We hope to see you at the next MJLH Colloquium in 2016!

The MJLH’s 7th Annual Colloquium: Dr. Archibald Kaiser on Mental Health Courts

Posted By Stephanie Hewson

Dr. Archibald Kaiser is a panellist at this Saturday’s Colloquium on the Not Criminally Responsible Reform Act. Dr. Kaiser is a professor at Dalhousie University in the Faculty of Law and an Assistant Professor in the Department of Psychiatry. Dr. Kaiser’s work focuses on the intersection of mental disability law with the criminal justice system.

Dr. Kaiser recently examined the “proliferation of mental health courts” across Canada. Mental health courts exist in most major urban centres in Canada as a means of diverting people with mental health issues out of the regular justice system, towards a “therapeutic conception of justice.” While Dr. Kaiser recognizes the commitment of lawyers, judges, social workers and mental health workers who staff mental health courts, he raises serious concerns about their role in perpetuating historical stigma, segregation and paternalism towards people with mental health issues.

Dr. Kaiser criticizes the coercive nature of the criminal justice system, even in the form of specialized courts, as a means of forcing treatment, including medication, on the accused. He writes that “mental health courts acquire the mantle of beneficence, but they function as another source of social control without addressing foundational issues.” Instead, Dr. Kaiser advocates for a rights-based approach to disability that focuses on self-determination, access to services and social inclusion.

The new Not Criminally Responsible Reform Act promises Canadians that “public safety comes first” on decisions about accused people found not criminally responsible or unfit to stand trial – indicating the continuation of segregation and social control, rather than movement towards disability rights and social inclusion. The MJLH is eager to hear directly from Dr. Kaiser on the implications of the Act on the future of mental health in Canada.

For more information on the MJLH Colloquium, and to read up on our other distinguished speakers, click here.

The MJLH’s 7th Annual Colloquium: What is the Mental Health Unit for Women Serving a Federal Sentence?

Posted By Lauren Hanon

The McGill Journal of Law and Health is hosting its 7th annual Colloquium this coming Saturday, February 21st. The topic of this year’s colloquium is: “The Not Criminally Responsible Reform Act: Mental Health and the Law.” With many great speakers and participants lined up, one notable contributor this year is Dr. Renée Fugère. Fugère is the Executive Director of the Philippe-Pinel Institute of Montreal, a hospital and center for research and teaching.

One of Fugère’s current projects with the Institute is the Mental Health Unit for Women Serving a Federal Sentence. The services offered to women serving a federal sentence by the Unit include psychiatric care and treatment through individual and collective therapeutic strategies. The treatment for each patient is aimed at addressing her specific and individual mental health needs, and offering women the type of necessary care that prisons simply do not seem capable of. The program thus seems extremely promising for any woman suffering from mental health issues who is serving a federal sentence.

How does a female detainee access the program?

There are two requirements for a female detainee to be admitted into the program: 1) the institution in which she is detained must request that she be assessed by the Philippe-Pinel Institute; 2) the needs of the female detainee, in terms of psychiatric care, must be too much for the institution itself to handle. There is also a voluntary aspect of this program for women who suffer from a severe personality disorder.

Is the program large enough to accommodate all women suffering from mental illness?

The program has approximately 15 beds and accepts women from across Canada. A detainee may stay for a maximum of 12 months.

A question that immediately pops up is whether this is enough for women suffering from mental health issues who are serving sentences. If not, are there other similar programs elsewhere in Canada? How many are there and how many women do they serve?

Other questions that I hope to see answered at the Colloquium this Saturday include: What quality of care do women receive within their institution before they would qualify for such a program? What does it mean for women to serve a federal sentence and be suffering from mental illness at the same time?

If you too would like to find out more about Dr. Fugère’s wonderful initiative, be sure to join us this Saturday, February 21st at the MJLH’s 7th annual Colloquium.

For more information on the MJLH Colloquium, and to read up on our other distinguished speakers, click here.