By: Anchal Bhatia, 2L Student, Windsor Law
ODSP is based on asking people with disabilities to constantly prove their struggles. It is time we rethink the ODSPA.
In May 2015, there were significant discussions surrounding the backlog of medical reviews for people on the Ontario Disability Support Program (ODSP). The Toronto Star featured an article regarding disability welfare reviews and one on the difficulty of maintaining benefits that indicate the impact of the intensive review process. Despite the focus on disability reviews and how the most vulnerable people could lose their right to benefits being received, the articles indicate that similar risks exist within the initial process of applying for disability eligibility. This is because current process is inefficient: it does not account for the possible barriers experienced by recipients, is detrimental to the wellbeing of beneficiaries, and creates and perpetuates a discriminatory environment.
The Ontario Disability Support Program Act (ODSPA) provides the raison d’être for the Ontario Disability Support Program (ODSP). The Act and its regulations describe who is eligible for ODSP, and its procedural process. The ODSPA defines a person to be one with a disability if: (a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more (b) the direct and cumulative effect of the impairment on the person’s ability to attend to his or her personal care, function in the community and function in a workplace, results in substantial restrictions in one or more of these activities of daily living and (c) the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified by a person with the prescribed qualifications. Fifty percent (50 %) of applicants are rejected on these criteria because they are found to not have a substantial restriction. Though the limitations only have to apply to one or more daily activities, adjudicators refuse disability benefits, claiming the person can avoid specific restrictions and therefore imply an individual is not “disabled enough”. Even those who are granted benefits are assumed to be able-bodied individuals at their medical review and must prove again that they are eligible under the Act. An individual has to complete a medical review if they have been selected as one of the 600 per month the government wants to review or if their decision had a review date decided by the adjudicator. The articles illustrate how inefficient the process is for those receiving disability benefits. For instance, gathering evidence for the application may be nearly impossible because of transient relations with healthcare providers. This prevents benefit recipients from collecting adequate evidence to meet the qualifications under the Act. Similarly, these barriers may exist for those applying for ODSP for the first time.
The articles speak about how gathering evidence can impede wellbeing, and that the process is extremely detrimental for individuals who lack the information, support or guidance. Yet, it can be equally detrimental for those who have support. It can be frustrating and patronizing to have abled individuals decide what is “enough” of a disability. ARCH submits there should not be distinctions on ability to work, or severity. They argue that such distinctions create arbitrary and discriminatory assumptions; leading people who have “non-severe” disabilities but face major barriers to employment or social inclusion to fall to the wayside. However, the analysis of severity is the cornerstone of the ODSPA. Adjudicators use their discretion to determine if the individual has a substantial enough restriction. Those not determined to have a disability lose out on essential benefits that decrease barriers; not being validated has also led to emotional instability. The system places an onus on the individual to fit into society. In addition to the invalidation, applicants are penalized when they are able to find strategies to circumvent the full impact of their restrictions because they are not seen as disabled enough. This leaves a very narrow definition of who is accepted as deserving of state support.
It is time to radically revise the starting premise for disability support eligibility to put more faith in those who self-identify as persons with disabilities. From the perspective of the government it is difficult to balance their limited resources with and ever growing need for these benefits. However, if we started at the position of accepting all applicants as disabled, it would be easier to strike that balance. It would support a more social model of disability because it would be assume every individual faces barriers and so the process itself would need room for accommodation. This is more aligned with the purpose of the ODSPA that “recognizes that government, communities, families and individuals share responsibility for providing such supports”, shifts the onus on how to remove barriers and dispel beliefs about people with disabilities being lazy and manipulative. Therefore, while the process may have frustrating aspects, there would be a positive shift in how people with disabilities are viewed. It would hopefully also show that abled-individuals are not indifferent to the plight of those who face a disability
This starting point of the process would be to examine each case on an individual basis to understand what accommodations are needed, instead of providing benefits with broad strokes. By acknowledging everyone has a disability; individuals might still be denied because they do not have enough of a financial need or directed elsewhere for accommodation The key question is would it be less frustrating than being told you are not disabled and therefore do not deserve accommodations. By validating someone’s truth, it can help reduce the emotional effects that exacerbate illness and impairments and show that our society is genuinely attempting to become more inclusive. It would encourage abled-focused institutions and ODSP to accommodate to the point of undue hardship, as promised in the Human Rights Code.
That is not to say the process has to no room for reviews; however, they shouldn’t be conducted with the purpose of trying to find those who are no longer eligible for the benefit, but rather to ask how the needs of the recipient has changed. This is different than the 2011 Social Assistance Review in Ontario (Brighter Prospects: Transforming Social Assistance in Ontario) which suggests various benefits that go beyond on the realm of simply supplementing income to A system that takes the time to understand what accommodations are needed for a particular person’s case might realize that they need money temporarily but are in more need of the employment program. A screening process that allows for a more complete picture of the person’s life is required. For example, the ability to allow non-health practitioners to provide evidence regarding an individual’s restrictions because not everyone has consistent doctors who know to speak of those details.
The articles emphasize the need for an efficient process, but it is also time to remove the discriminatory viewpoint that the legislation holds. Before any reform can take place extensive consultations should occur on how the process can make individuals feel validated and supported while making hard decisions on how resources can be effectively shared. The consultations from 2011, focused greatly on improving the current system to make it more effective. While that will continue to be a feature, there needs to be a shift of perspective tobeing more accepting of peoples’ truth and finding concrete ways to ensure that is occurring. But, reforming the legislation to allow room for accepting everyone who identifies as disabled would be beneficial in reducing the agony that is present with being told you do not understand your own experiences. After all, what is being said when ODSP sends a letter stating the applicant is not disabled after engaging the applicant in such an extensive process.
An individual-focused system may seem to make the job too large and more tedious. In the beginning the process might be difficult, but with time, it would hopefully become easier and faster to employ. In addition, while examining individuals’ specific needs, creative solutions will arise that allow for the integration of other systemic programs to ensure equality and further inclusion for people with disabilities. It is also possible that accepting all applicants as disabled may not be enough to reduce frustration for a significant amount of people with disability, but I do believe that by at least starting the discussion, the door to more genuine integration will be opened.
by Nsamba Gerald, 3L Student, Windsor Law
Legalizing assisted suicide would not increase choice and self-determination, despite the assertions of the Canadian Supreme Court ruling in Carter v. Canada (Attorney General), 2015 SCC 5 . It would in fact augment real dangers that negate genuine choice and control. The assisted suicide model is an act executed by professional medical personnel with the intention to end the life of the person who considers his or her life to be no longer worth living.
For some individuals, this medical service model brings an end to unbearable suffering. Section 241 of Criminal Code of Canada stated that anyone who counsels a person to commit suicide, or aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and may receive a term of imprisonment not exceeding fourteen years. The Canadian Supreme Court’s ruling in favour of the assisted suicide model rendered the provision inoperative.
There are benefits and disadvantages to ruling in favour of this assisted suicide model. For instance, the benefits of assisted suicide model provide the relief of extreme pain when a person’s quality of life is poor. This model frees medical funds to assist other people. It is also another case of freedom of choice. However, some of its disadvantages would be to devalue human life and this could become a means of healthcare cost containment. Thus, physicians and other medical care personnel should not be involved in directly causing deaths.
The Court stated that the model of doctor- assisted suicide is limited to consenting adults who are “suffering from grievous and irremediable medical conditions” but not necessarily terminal disease that causes “enduring and intolerable suffering”.
The assisted suicide decision suggests that patients who request the assisted suicide model must be able to communicate with the physicians. This requirement excludes people who are unable to speak, but may desire that their lives be ended through the model. Patients who are unable to communicate with physicians are disqualified or excluded.
Similarly, if someone has a chronic illness that is not a “grievous and irremediable medical condition”, they are not eligible for assisted suicide under this ruling. Furthermore, any individual whose illness has brought about depression that affects their judgment is also ineligible.
Moreover, legalizing physician-assisted suicide would place those who are depressed, poor, disabled or elderly at risk. The Canadian Supreme Court ruling essentially tells the vulnerable that they are a burden to society. Patients who lack emotional support and psychological care could be more likely to internalize that message. When someone else is suicidal, society would get them help by sending them to a medical doctor. We would not hand him or her a loaded gun to expedite his or her death.
Legalizing assisted suicide would also affect socially and economically disadvantaged people who have less access to medical resources and who already find that the health care system discriminates against them. As Paul Longmore stated, “Poor people, people of colour, elderly people, people with chronic or progressive conditions or disabilities, and anyone who is, in fact, terminally ill will find themselves at serious risk”.
Fear, bias, and prejudice against disability could play an important role in assisted suicide. Supporters of assisted suicide argue that it would relieve untreated pain and discomfort at the end of life. However, patients who wish to request the assisted suicide model may not do so because of pain, but rather because of frustration stemming from the loss of their functional ability, autonomy, or control of their bodily functions.
In the Netherlands, many physicians stated that the main reason patients gave for seeking death was a “loss of dignity.” This loss of dignity may result from a decrease in autonomy, which could be the inability to get out of bed or use the toilet.
In the state of Oregon, one report found that 63% of cases cited the fear of being a “burden on family, friends or caregivers” as a reason for their suicide. This is very troubling as many innocent people could lose their lives due to pressure by family members who wish to eliminate unwanted burdens. Elderly individuals who do not want to be a financial burden upon their families might also request the assisted suicide model as it would eliminate their family’s obligations to them.
In this case, individuals with disabilities could be the most likely to end their lives. The experiences in the Netherlands show that legalizing assisted suicide could place strong, unwarranted pressures on individuals and families to utilize that option, which would lead very quickly to coercion and involuntary assisted suicide. A study in Oregon also found that the estimated savings of allowing people to die before their last month of life is $627 million.
In conclusion, the assisted suicide medical model needs to be about free choice and self-determination and government needs to undertake precautions whilst implementing this model. On December 15, 2015, The External Panel on Options for a Legislative Response to Carter v. Canada submitted its key findings from its consultations to the federal government, although those findings have not yet been released publicly. The federal government, for its part, has filed for more time to come up with suitable measures that would be utilized in implementing the assisted suicide procedures, and guide physicians in hospitals. This is a positive step in the search for an appropriate approach to this serious issue.
Autism-inclusive employment resources in Newfoundland fail to compensate for poor government intervention
By Jade Standaloft, 2015 L.L.B., University of Tasmania.
Another positive step in autism promotion has been taken recently with the introduction of a new jobseekers’ database, aimed at connecting those on the autism spectrum with employers. The database, developed by Ready, Willing and Able and the Autism Society of Newfoundland and Labrador, works to provide those not already engaged with a formal employment service with the opportunity to find diagnosis-appropriate employment – something currently unavailable to the 1 in 4 unemployed adults with intellectual disabilities or an Autism Spectrum Disorder diagnosis.
Autism operates within the broader category of Autism Spectrum Disorders, and is characterised by qualitative impairment in social interaction and communication. As a result, those with autism may be ill-suited to an unaccommodating workplace and therefore may struggle to find steady employment and gain self-sufficiency and independence within society. Such initiatives indicate a hopeful movement away from the medical model of disability, which by its nature discourages the necessary workplace accommodations.
Joseph Straus has defined the medical model as identifying disability as a pathological deficit, where the disability of the individual is indicative of a deviation from the norm and is therefore in need of remedying, in order for the individual to assimilate into society. By contrast, the social model has been defined by Anita Silvers as treating disability as a social construct, identifying the need for change as lying with the broader society, rather than the individual themselves. While these models are neither exclusive nor comprehensive of broader disability discourse, they do represent the most common characterisations of disability. The introduction of measures such as jobseekers’ database created by Ready, Willing and Able indicates a promotion of this latter model in the broader community. However, small progresses should not be misconstrued as a broader societal shift, particularly as the website was established by an autism society, and not by a broader government initiative to promote autism inclusion. Such initiatives still remain an exception to the norm, are frequently privately established, and signify that significantly more needs to be done on a government level for an autism-inclusive society to be prevalent in Canada.
For example, severe issues still exist in autistic therapy funding, particularly in relation to early childhood support. As reported by the Parliament of Canada, in British Columbia, families are only authorised to claim up to $20,000 a year per child under six years old for ABA/IBI programs; this amount drops to $6,000 when the child is over six. Manitoba also restricts support to $6000 per year per child for pre-school and school-aged services, while Prince Edward Island offers approximately $10,000 per child, per year for preschool children. Nunavut has no autism specific programs at all. Newfoundland and Labrador, , allocates $40,000 per year for two years during infancy, and a further $10,000 for one year for children over six years old. While these may seem like significant amounts of money, the average cost for these services run upwards of $60,000 annually, a number which does not consider other expenses that may be incurred while raising a special needs child. Therefore, the financial pressure for families is still extraordinarily high, and may restrict the provision of support for children in need.
By Anne Olszewski, J.D. 2016, University of Windsor Faculty of Law
Should governments ban isolation rooms in Canadian schools?
A Toronto mother of an autistic child certainly thinks so. Karen Thorndyke and her family are suing their district school board for $16 million claiming their autistic son was repeatedly kept in an “isolation room” as punishment for his outbursts and misbehavior in the classroom. The allegations have not been proven in court.
It is likely that Canadians are, for the most part, unaware of how common isolation rooms are. They come in variety of names including “seclusion rooms” “scream rooms” and the public relations friendly “alternative learning rooms”. Often times, they are small windowless rooms where children are sent when they misbehave in the classroom. The rooms are locked and the amount of time the child spends in isolation varies.
The report contends that brief physical intervention used to stop an immediate and serious danger to the child or others may be appropriate in the case of an emergency. However, the ongoing use of restraint as punishment or in the guise of treatment for a child’s disability or behavior indicates a need for program revision.
Article 24 of the (CRPD) states,
- “Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:
(a) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity; […]
- In realizing this right, States Parties shall ensure that:
[…](e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.
Choosing to administer isolation rooms as a way of behaviour control may systemically discriminate against children with disabilities depriving them of an inclusive education. While the rooms are not specifically for the use of children with special needs, the behaviour, ticks, and outbursts that the rooms are meant to calm are typically associated with disabilities such as autism or downs syndrome. It follows, that children with disabilities are often sent to isolation rooms at a higher frequency than children who do not present these behaviours. For those children, the rooms cause more harm than good, with survey respondents reporting children feeling traumatized, fear and anxiety while in the rooms and afterwards.
According to Article 23 of the (CRC), “children who have a disability have the right to special care and support, so that they can live full and independent lives.” Further, Article 28 provides that, “the child has the right to education; the State has a duty to make primary education compulsory and free to all; to take measures to develop different forms of secondary education and to make this accessible to all children. School discipline should be administered in a manner consistent with the child’s human dignity and developing respect for the natural environment.”
Canada has committed to the protection of these rights and yet the reality is that many school boards continue to deprive children of their right to inclusive education. In the 2011 Ontario Special Education Tribunal decision of M. S. v. Ottawa Catholic District School Board, a student identified with autism had been suspended from school for extended periods of time, missing 32 out of 51 days in 2009. Since April 2009, the student had not attended school in spite of being of compulsory school age. This was yet another example of the school board’s inability or unwillingness to accommodate the needs of children with disabilities.
The school board’s actions indicated a worrisome message that is mirrored in the use of isolation rooms. It is easier for the school to remove a child with disabilities from the classroom than to provide integration and accommodation.
The Tribunal found in favour of the child and ordered the parties to facilitate the student’s return to school with special education services provided. While this case demonstrated the Tribunal’s commitment to the best interests of the student, the fact remains that the order was a reactive remedy for the school board’s inability to provide education in accordance to the CRC and the CRPD.
Additionally, proponents of the medical/individual model of disability theorize that the “problem” of disability lies with the individual, and it is up to society to provide medical assistance from professionals to correct said problem. However, even if one supports the medical model which is controversial, the idea of isolation room as a solution fails yet again as there is no evidence that isolation rooms actually benefit the child. In fact, some would argue that they do more harm than good, increasing anxiety and feelings of isolation, which can lead to further disruptive and harmful behaviour.
Largely due to children’s rights advocacy groups, lawmakers have been considering the legality of isolation rooms. A 2015 report analyzing state seclusion and restraint laws in the United States provided that some jurisdictions have passed meaningful laws regulating the use of isolation rooms. One such jurisdiction is Alaska where section 14.33.125 of the Alaska Administrative Code regulates student restraint and seclusion. These provisions demand annual reviews of the program, describe when a child may be secluded, and importantly, order that parents are provided a report documenting the incident.
Canada does not yet have equivalent regulations in this regard. Isolation rooms deprive children of their protected human right to education; they systematically discriminate against children with disabilities and further aggravate issues these children live with every day including stigmatization, isolation and anxiety. It is time for Canadian lawmakers, school boards, teachers and administrators to make a change towards a proactive and inclusive classroom, doing away with the use of isolation rooms for the benefit of all children.
By Krysten Bortolotti, J.D. 2016, University of Windsor Faculty of Law
The Moore v British Columbia decision in 2012 was seen as a huge victory when the Supreme Court of Canada unanimously found that all school districts must take a proactive approach to budgeting and programming to ensure the rights of students with disabilities and their accommodation are taken into account. With that ruling many people thought that the disability rights of children in education would improve drastically.
A recent 2014/2015 parental survey report by the BC Parents of Special Needs Children confirms that the current fiscal funding in British Columbia’s public education services for children with disabilities is inadequate. The report shows many parents (51%) have removed their child from public education and others have even been forced out (31%). Areas that parents identified as providing inadequate support to their children with a disability included the lack of educational assistants and access to specialized services that had been prescribed for their child (such as occupational/physical therapy and speech/language therapy). Finally, the report sheds light on the fact that the school boards in British Columbia aren’t following the policies and procedures created by the Ministry of Education. For example, many parents indicated that the Individual Education Plans (IEPs) prescribed for their children were not being followed by some school boards. The failure of the school boards to implement these plans goes directly against the British Columbia Ministry of Education’s policy under the Individual Education Plan Order, which explicitly states:
(5) Where a board is required to provide an IEP for a student under this order, the Board must offer each student learning activities in accordance with the IEP designed for that student.
The same can also be said for Ontario, which recently announced changes to the formula for special education funding for school boards, forcing boards to cut back on support services for students with disabilities. In March of this year, the Toronto Star reported that 38 boards across Ontario will receive less special education funding than they did in their previous year despite the fact that demand for funding of these programs has continued to increase over the years. Previously, the Ministry of Education allocated funding on a “per pupil basis”, but the changes to the formula were the result of an effort by the government to address the inequity of funding among the boards as well as declining enrolment. These changes to the funding formula occurred in March 2014, when the Ministry announced a four-year transition to a new “high needs amount allocation” formula for special education. Instead of adding more funding to those boards receiving less funding, the Ministry decided to “redistribute” the funding. For the boards receiving more funding per pupil under the old formula, they have had to cut crucial special education tools that they had implemented and built up over years of funding.
These cuts have a drastic impact on the education received by children with disabilities. According to the organization, People for Education, more than 331,000 students receive special education support. Sadly, 57% of elementary and 53% of secondary school principals report restrictions on waiting lists for Special Ed assessments and an estimated 44,000 students are currently on wait lists for assessments with identification, placement and review committees or for services.
The Moore decision stands for many propositions, among them being that human rights law requires service providers to make their services accessible to persons with disabilities. Essentially where a barrier is identified, the service provider must provide accommodation to overcome that barrier unless doing so would cause undue hardship. At first glance, this seems like a win for advancing disability rights. However, the concept of “undue hardship” rests upon considerations involving: (1) cost, (2) outside sources of funding, if any, and (3) any health and safety requirements. One quickly begins to see that reasonable accommodation in the context of education for children with disabilities can certainly be skirted because of the costs associated with special education programming.
But perhaps we need to look at the issue using an appropriate critical disability theory perspective. If we approach this disability issue critically, we can see that ensuring that special programs exist will help address the economic roots of disability by supporting students with disabilities so that they may realize their fullest potential to become active, contributing individuals in society.
Too often, however, the government makes funding decisions to special education with shortsighted views on economic efficiency. The immediate cost of implementing these programs is seen to be reason enough to cut funding or under-fund. What this narrow application of costs does not take into account are the larger implications of insufficiently funding these programs. For example, it was reported recently that the failure to adequately address learning disabilities of children because of education costs destines those children to underperform throughout school. Further, people with learning disabilities are highly over-represented in the criminal justice system, representing 5-10% of the general population, but 25 per cent of the prison population. This outcome is perhaps avoidable by properly educating individuals with disabilities so that wherever possible they may become contributing members of society.
Walking away from a narrow application of economic efficiency and looking at costs through a broader theoretical perspective might help maximize everyone’s potential. Doing so can bring about a more efficient wealth-driven society by properly educating and developing all children — with or without disability.
By Keith Hiatt, PhD Candidate, Berkeley Law
On Thursday, January 22, 2015, at approximately 6:30 PM, a seventeen-year-old woman walked into a police station in Longview, Texas. By 7:00 PM, she was dead, shot multiple times by police officers. The young woman had been diagnosed with bipolar disorder. We don’t know why she walked into the police station, or why she asked to speak to an officer. We don’t know why she told them she had a gun, when in reality she did not. We don’t know why she struggled with the officers, but we know that three officers physically subdued her. We don’t know why she fought with them and eventually pulled a knife, but we know that they reacted, almost instantly, by shooting her multiple times. We don’t know why. But we know that this is a scenario that plays itself out over and over. Continue reading “Suspects With Disabilities: ADA Title II, Arrests, and Reasonable Accommodations”
Symposium: Exploring Law, Disability and the Challenge of Equality in Canada and the United States
Berkeley Law, December 5, 2014
Summary by Chandima Karunanayaka (JD/MSW Candidate 2016)
& Stephanie Skinner (MSW/JD Candidate 2015)
Disability Legal Studies Fellows 2014-2015, Windsor Law, Canada
The much-anticipated conference, Exploring Law, Disability and the Challenge of Equality in Canada and the United States took place on December 5, 2014. Academics, advocates and students flew in from across Canada and the United States to share ideas and develop networks. Yet, most importantly, the conference was an opportunity for likeminded individuals to discuss, develop and challenge one another’s ideas on what is needed to achieve equality for people with disabilities in society. In her opening remarks, Prof. Laverne Jacobs identified the goal of the conference as exploring disability legal studies or the “disability angles” of the law. Over the course of the day, it seems that no stone was left unturned: discussion took place regarding international human rights law, social & economic rights, and processes & procedures for achieving equality. Lastly, we heard from current practitioners in the legal disability rights field. Overall, the conference was a great success and reinvigorated attendees to continue the battle they had begun. Below is a summary of the panels but note that more information about the conference along with a video may be obtained on the conference website: https://www.law.berkeley.edu/17483.htm Continue reading “Symposium: Exploring Law, Disability and the Challenge of Equality in Canada and the United States”
By Laverne Jacobs (Associate Professor, Windsor Law)
and Chandima Karunanayaka (JD/MSW Candidate ’16)
Mr. Stott was a passenger with a mobility limitation. He was a permanent wheelchair user and paralyzed from the shoulders down. In 2008, he and his wife booked a return flight through Thomas Cook Tour Operators. Due to his physical condition, Mr. Stott requested at the time of booking that his wife be seated next to him as she assisted with his personal care during flights. The airline reassured him that this request would be honoured. The outbound flight passed without incident. However, the request was not complied with on the return flight. At check-in, when Mr. Stott was told that his wife would not be seated next to him, the crew informed him that the matter would be resolved at the gate. But, at the gate, Mr. Stott was told that passengers had already boarded the aircraft and no other arrangements could be made. The airline made no attempt to ask nearby passengers to relocate to accommodate Mr. Stott. Continue reading “Stott v Thomas Cook Tour Operators: Human Rights Left without a Remedy?”