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.

The MJLH’s 7th Annual Colloquium: Come listen to Justice Schneider on Bill C-14

Posted By Sabrina Mach

The adoption of Bill C-14, the Not Criminally Responsible Reform Act, has been met with much criticism. Amongst those skeptical about the Act’s effectiveness is the Honorable Mr. Justice Richard D Schneider, Justice of the Ontario Court of Justice and Chair of the Ontario Review Board. During the Standing Senate Committee meeting to consider Bill C-14, Justice Schneider explained his skepticism towards the bill and highlighted that his biggest concern with the reform was the addition of the “high-risk offender” provisions.

Important change brought by Bill C-14

With the new reform, accused persons who are found not criminally responsible (NCR) but who the Court believes will pose a higher risk of committing future acts of violence will be held for up to three years in custody in a hospital, and will not be released by a review board until the high-risk designation is revoked by the court. Prior to the bill, review boards were given more freedom; they could order the NCR individual to remain in the hospital, they could order a conditional or complete discharge, etc.

Given that he sits on the Ontario Review Board, it is not surprising that Justice Schneider would be critical of the reform, since the “high-risk offender” provisions encroach on the review board’s ability to assess NCR individuals. However, the criticisms that Justice Schneider raised during the Senate Committee run much deeper than simple encroachment of power.

Criticisms of the high-risk offender provisions

First, Justice Schneider argues that high-risk offender provisions are not applicable to most accused in Canada. They only address a small group of highly mediatized outliers, such as Vincent Li, Guy Turcotte and Allan Schoenborn.

Second, Justice Schneider asserts that changes should not be made to a system that is not broken. Evidence clearly demonstrates that the previous review board scheme worked extremely well and greatly reduced the probability of recidivism.

Finally, Justice Schneider emphasizes that the Bill C-14 might actually make things worse for the mentally disordered, not better. Given that those classified as NCR high-risk offenders run the chance of being locked up in a secure psychiatric facility for up to three years with no review, some mentally disordered individuals might choose not to raise the defense of NCR. The problem with not raising this defense, however, is that these individuals will end up in prison, which will prevent them from receiving proper treatment or assistance for their disorder, and thus increase their chances of recidivism.

Conclusion

Justice Schneider raises numerous compelling criticisms regarding Bill C-14. One of the main reasons why his arguments are so persuasive is because they are influenced by personal experience. Being the Chair of the Ontario Review Board as well as a former defense lawyer for the mentally ill, Justice Schneider is an expert in his field. It will be very interesting to hear him speak at the MJLH’s Colloquium on Saturday, February 21st, 2015.

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

MJLH Student Recruitment 2014-2015 / RDSM Recrutement d’étudiants 2014-2015

Posted By Katarina Daniels

The application forms for editorial, managerial, online and submissions and solicitations editor positions are now available online. The deadline for applications is September 17.

Should you have any questions about the journal or the application process, please do not hesitate to contact us at: editor.mjlh@mail.mcgill.ca or manager.mjlh@mail.mcgill.ca.

Jennifer Anderson, Editor-in-Chief, vol 9

Hersi Hujaleh, English Executive Editor

David Hamel, French Executive Editor

Samantha Allen, Executive Managing Editor

Katarina Daniels, Executive Online Editor

 


Les formulaires de candidatures pour les postes de rédaction, d’administration, de rédaction web, et de sollicitations et d’abonnements sont disponibles en ligne.

La date limite pour la soumission de candidatures est le 17 septembre.

Si vous avez des questions sur la RDSM ou sur le processus d’application, n’hésitez pas à nous contacter à: redacteur.rdsm@mail.mcgill.ca ou manager.mjlh@mail.mcgill.ca.

Jennifer Anderson, Rédactrice en chef, vol 9

Hersi Hujaleh, Rédactrice exécutive pour l’anglais

David Hamel, Rédacteur exécutif pour le français

Samantha Allen, Rédacteur exécutif administratif

Katarina Daniels, Rédactrice exécutive web

Litigating for Health Care Reform in Canada: a Recap of the MLJH annual Colloquium (Pt II)

Posted By Laura Crestohl & Katarina Daniels

On February 22nd, 2014, the McGill Journal of Law and Health hosted its 6th annual colloquium, entitled “Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope”. The event attracted a diverse audience including medical students and health care professionals, law students and legal practitioners, political scientists, policy analysts, and members of the general public concerned about health care access.

Part 1 of our recap covered the first two speakers: Me Philippe Trudel, who represented George Zeliotis in the Chaoulli case and Jasmine Guénette of the Montreal Economic Institute.

Part 2 of the recap will cover the other three speakers, including: Professor Alana Klein from McGill’s Faculty of Law, Mr. John Carpay of the Justice Centre for Constitutional Freedoms, and Professor Antonia Maioni of the Institute of Health and Social Policy at McGill.

ALANA KLEIN: Potential Charter challenges in extending Chaoulli to other provinces

McGill Law’s own Professor Alana Klein spoke on how Charter challenges aiming to extend the ruling in Chaoulli to other provinces can be viewed in an international human rights context. She mentioned a case from British Columbia, in which Dr. Brian Day has brought a challenge to the law prohibiting doctors from charging extra fees. (For more on this case, see the MJLH’s blog post on Dr. Day’s webinar).

Klein then went over the history of how the Canadian system implemented bans on charging extra fees for medical services. She started with the Canada Health Act, which was passed in 1984, which resulted in the vast majority of health care expenditures being paid by a single-government insurer, with a promise to pay dollar-for-dollar for services if provinces did not have extra billing for services or user fees. The aim was to ensure that health care was distributed by need and not by ability to pay. Different provinces added other measures  to discourage the development of a parallel private system, such as not allowing doctors to work in both the private and public sectors. Klein argued that despite these measures, the current system allows a lot of “passive privatization”, as seen for example through Pharmacare and home case. In addition, there are blatant violations of the Canada Health Act, which the government turns a blind eye to out of political considerations.

Klein then addressed whether this regime invokes constitutional and/or human rights arguments. Is there a constitutional right to be able to pay for private healthcare? There is no right to health care in the Canadian Charter of Rights and Freedoms, so challenges are brought under the right to life and security of the person as protected by section 7. This argument includes the view that by creating long wait lists, the government is arbitrarily restricting access to health care.  Klein defined arbitrariness as: not whether law is necessary for goal, but whether is it relate to pursuing that object. Klein pointed out, though, that the court has never struck down a law for being arbitrary, only government actions. In addition, a case has never been decided on the Canadian Charter; the Supreme Court was split 3-3 in Chaoulli, and ultimately the case was decided on the Quebec Charter. These new Western challenges will likely force the Court to come to a conclusion on this issue.

When taking a human rights approach, Klein reminded us that we have to look at the power dynamics at work here. There must be rationing in health care but it must be transparent, evidence-based and pursuant to the needs of the most vulnerable. Is there evidence that it is not discriminatory? Klein concluded her session with the thought of whether litigation is truly the best venue for this discussion, or whether, perhaps, the political realm is better equipped to handle these questions.

JOHN CARPAY: Relying on Chaoulli in Allen v Alberta

John Carpay focused his talk on the current case of Allen v Alberta and its reliance on the ruling in Chaoulli. Carpay’s client, Dr. Darcy Allen, is a dentist who injured his back and had to wait 1 year for a diagnostic test and then was told he would have to wait 12-18 more months for surgery. Allen then chose to pay out-of-pocket to get back surgery in Montana instead of waiting in Alberta. Dr. Allen has permanent damage due to the time he spent waiting for surgery in Canada.

The heart of this debate, for Carpay, is the distinction between a government program and a government monopoly. Carpay and Dr. Allen argue that there is a right to access health care outside the government’s monopoly and that this will not impact the public system, just as private car ownership does not threaten public transit. A monopoly by definition is not accountable because you cannot take business elsewhere. Carpay suggests that the government’s monopoly causes Canadians to suffer unnecessarily, and may even lead to preventable death.

Carpay reminded the audience that to prove that a Charter right has been infringed, the plaintiff must only prove that their right was violated. Even if waitlists come down, if some people, even just 10%, are still negatively affected, their rights are still being violating, and the law should be found to be unconstitutional. However, the current Alberta government does not have the statistics to know how many Albertans are waiting, suffering and not working due to waitlists.

Carpay did not make a prediction as to the case, but thinks his argument is strong. He argued that Chaoulli was not solely decided on the Quebec Charter; rather he sees in the Justice Deschamps’ decision an affinity with the judges who expressed that a ban on private healthcare is not justified. He thinks that the Canadian public is beginning to understand that there are more options than simply choosing between the status quo and a fully-privatized US-style system.

ANTONIA MAIONI: How we got to Chaoulli and what has come since

McGill’s Professor Antonia Maioni spoke on the context leading up to Chaoulli. Maioni emphasized that it is important to remember that Chaoulli arose in a particular sociopolitical context in order to understand its consequences.She started by describing the austerity measures of the late 1990s that constrained health care system. She claimed, however, that after the introduction of the Canadian Charter of Rights and Freedoms in 1982, courts became more active in health care policy, and a trend of litigating health care reform began to take form as Charter challenges. Maioni claimed that at the time, the political decision makers had not foreseen the impact of such challenges.

The effect of Chaoulli remains unclear. The legislature’s response to the decision, Bill 33, only narrowly responded to the court, focusing on targeted surgeries and creating a centralized management of wait lists. However, data suggests the effect of Bill 33 on wait times is mixed.

Maioni argued that several questions remained after Chaoulli, including whether the litigation succeeded in bringing about meaningful change. Did the case fail in its objective to break the government monopoly over the delivery of certain health care services? Is litigation the best way to make public policy?

Maioni ended the day with this last thought: “We have to stop thinking about healthcare reform in terms of values…At the end of the day, we are consumers and we need cost effective, quality healthcare.”


Thank you for reading our recaps. We hope to see you at the next MJLH Colloquium in 2015!

Litigating for Health Care Reform in Canada: a Recap of the MLJH annual Colloquium

Posted By Laura Crestohl and Katarina Daniels – Mar. 28, 2014

The McGill Journal of Law and Health hosted its 6th annual colloquium on February 22nd, 2014. Entitled “Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope, the event attracted a diverse audience including medical students and health care professionals, law students and legal practitioners, political scientists, policy analysts, and members of the general public concerned about health care access.

Part 1 of our recap will cover the first two speakers: Me Philippe Trudel, who represented George Zeliotis in the Chaoulli case and Jasmin Guénette of the Montreal Economic Institute.

PHILIPPE TRUDEL: On the importance of Chaoulli

Me Trudel of Trudel & Johnston started off the colloquium with his reasons for taking on Mr. Zeliotis’ case pro bono: first, that the waiting times in hospitals were unacceptably long, and second, that the wealthy and well-connected were often jumping the list by going through the private system. His research had found that these trends were not isolated, but could be found in all areas of medical practice. Surgeons were wasting their times managing waiting lists instead of treating patients, and resources were not being used effectively.

Me Trudel surprised many who were under the misconception that Mr. Zeliotis and Dr. Chaoulli were seeking privatization of the healthcare system; instead, he clarified that his client was in favour of a public healthcare system that is “complete, efficient, and accessible,” with private care available as a back-up. This contrasted Dr. Chaoulli’s argument for a full free market system, and in fact this conflict of interest led them to part ways. By contrast, Mr. Zeliotis and Me Trudel’s concern was with the province’s preaching of “l’égalitarisme”. A policy shared by communist Cuba and North Korea, the policy states that if you cannot get a service through the public system, you cannot get it at all. He compared it to forbidding children from eating breakfast at school because the school could not afford to feed them all, as opposed to allowing parents with means to send their children to school with breakfast, thus offsetting costs for the school.

According to Me Trudel, the effects of Chaoulli are largely being felt now. Specialized medical centres have been introduced to deal with wait lists – so-called “private logic within the public system”. Today, less than 1% of all physicians in Quebec have left the public system and are paid privately. Information on waiting times is also now openly available.

Still, Me Trudel anticipates new challenges in the next 10 years. Resources are limited, and Quebec is currently financing the health care system with deficits. Any improvements, Me Trudel argued, will not last. He blamed union rigidity, in part, among other constraints which make it difficult to improve efficiency in the public sector. Politicians, for their part, fear losing elections if they re-open this debate.

In his conclusion, Me Trudel argued that having a private back-up system is not a zero-sum game. Allowing someone with means to use their own resources does not mean less resources in other areas, rather, it allows someone else to move up the waiting list in the public sector. It is not perfect equality, which is the ultimate goal, but it is a step forward.

JASMIN GUENETTE: market solutions to improve the health care system

Jasmin Guénette of the Montreal Economic Institute used a comparative approach to highlight potential steps that Quebec could take in order to improve the health care system and reduce wait times. In particular, he highlighted the importance of having both public and private options for citizens.

In Sweden, a “social democratic paradise”, 26% of health care is provided by private institutions, which are then paid back by the government for services rendered. This contrasts Quebec which currently works on a fixed budget model. This model, according to Guénette, is inefficient and contributes to waiting-lists. A recent announcement by the Quebec government that it will move towards a more activity-based system was, for Guénette, a good step forward.

Guénette then moved on to his primary focus – the comparison between Quebec and Switzerland. He had spent a good deal of time investigating how public and private hospitals work together to provide health care in Switzerland; his research was summarized in a short documentary available here)

The conclusions drawn from his research highlight the importance of promoting freedom of choice for patients and competition between providers. He made the following recommendations: (1) allowing mixed practice to allow medical practitioners to practice in both the public and private systems; (2) requiring the publication of performance indicators for hospitals to allow users to make informed decisions about where to seek health care; (3) to allow private insurance for medical procedures also covered by government medicare.

According to Guénette, private clinics do play a positive role (see this film prepared by the MEI) but only 2% of doctors practice in the private sector. And yet, the largest consumer of private health care in Quebec is the government through the CSST and SAAQ, who choose the more efficient private system to minimize any benefits they have to pay out to employees injured at work or passengers injured in a motor vehicle accident.

Guénette concluded his talk by highlighting the need for reform. Canada is the only OECD country that does not have private for-profit hospitals, and Canadians have accepted the unacceptable for too long. While he cautioned against simply copying European models, he suggested that they may provide inspiration. Canadians should be able to decide how to use their money after taxes, including the possibility of spending it on health insurance and health care. Canadians should build a health care system that encourages entrepreneurship and patient choice. In Switzerland, the most expensive and difficult medical cases go to public hospitals, but the private system takes the burden of the public system in order to allow this. The total GDP spent on health care in Switzerland is about the same as in Quebec, but the Swiss system is more efficient because it is decentralized. Quebec should continue to fund the health care system through taxes and ensure universal health care, but the private system does have a role.

Part 2 of the recap will cover the other three speakers, including: Professor Alana Klein from McGill’s Faculty of Law, Mr. John Carpay of the Justice Centre for Constitutional Freedoms, and Professor Antonia Maioni of the Institute of Health and Social Policy at McGill.