In 2008 Ontario passed new legislation, entitled the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act (“Social Inclusion Act”). The Social Inclusion Act is intended to shift Ontario’s developmental services sector away from institutionalized care and towards a system of services and supports that will enable people with intellectual disabilities to exercise more independence, have greater decision-making power over their day-to-day lives, and ultimately live as full citizens in communities of their choosing. The Act is coming into effect in various stages, from July 1, 2010 until July 1, 2011, when it will replace the 36-year old Developmental Services Act.
This report discusses the impact that the Social Inclusion Act will have on people with intellectual disabilities who receive publicly-funded services and supports from the government of Ontario. The report asserts that there are significant limitations to the new legislation that will prevent it from achieving its much-needed goal of transforming Ontario’s developmental services sector. Two of these limitations are: the absence in the legislation of rights for people with intellectual disabilities when they receive developmental services and supports; and the lack of robust mechanisms to enforce such rights. In this context, the rights referred to are those that relate to the day-to-day lives of people with intellectual disabilities and the specific developmental services and supports they receive. Throughout this report we refer to these rights as “service rights” to denote this meaning and to distinguish them from the fundamental rights, freedoms and protections provided for in the Canadian Charter of Rights and Freedoms, federal, provincial and territorial human rights codes, and other legislation.
Employing a rights-based approach, this report explores the kinds of enforcement mechanisms that are needed in Ontario’s developmental services sector in order to ensure that people with intellectual disabilities are treated with respect and dignity, have more choice and control over the services they receive, and are supported to live as equal citizens in society.
The report begins with a very brief history of the various approaches that Ontario has taken to the provision of services and supports to people with intellectual disabilities, including the approach that is taken in the Social Inclusion Act. A description of some of the significant challenges facing people with intellectual disabilities follows. The next section of the report develops and describes a human rights-based approach to enforcement mechanisms in the developmental services sector. Section IV outlines enforcement mechanisms used in developmental services systems in selected jurisdictions outside of Ontario. The report concludes by proposing four key initiatives that should be implemented to enforce the rights of people with intellectual disabilities in Ontario’s developmental services system.
A. About ARCH Disability Law Centre
ARCH Disability Law Centre (“ARCH”) is a specialty community legal clinic dedicated to advancing the equality rights of people with disabilities. ARCH provides legal services to help Ontarians with disabilities live with dignity and participate fully in our communities. ARCH provides free and confidential legal advice and information to people with disabilities in Ontario. We provide legal representation to people with disabilities whose cases fall within our priority areas of work and who meet Legal Aid Ontario’s financial eligibility guidelines. We work with Ontarians with disabilities and the disability community on community development, law reform and policy initiatives. We also provide public legal education to people with disabilities and continuing legal education to the legal community.
ARCH has extensive experience working with people who have intellectual disabilities. This experience is broad and is based on our contacts with people with disabilities themselves, their families and support people, advocates and community organizations. ARCH regularly hears concerns about the delivery of supports and services to people with intellectual disabilities, and we provide legal information and advice on these issues. ARCH has represented clients in litigation dealing with developmental services issues. We have engaged in discussions of these issues with consumer and advocacy groups, and have conducted legal and non-legal research on supports and services for people with intellectual disabilities.
ARCH has been actively engaged in law reform initiatives related to the Social Inclusion Act. In 2008, we made written and oral submissions to the Standing Committee on Social Policy regarding Bill 77, the predecessor to the Social Inclusion Act. More recently, we made written submissions to the Ministry of Community and Social Services regarding draft regulations under the Social Inclusion Act, and met with the Ministry regarding specific issues related to services for people with intellectual disabilities.
This paper uses the term ‘developmental services’ or ‘developmental service systems’ to refer to government-funded services and supports provided to people with disabilities. The terms ‘people with disabilities’, ‘people with intellectual disabilities’, or ‘people who have been labeled with an intellectual disability’ are used when referring to people with disabilities who are recipients of these services. We note that there are various views regarding the most appropriate language and we defer to members of the community and people with disabilities themselves regarding appropriate terminology.
The methodology for this report was comprised of two phases: (1) a literature review; and (2) consultations with stakeholders.
1. Literature Review
We conducted a review of the literature on human rights-based approaches and the literature on enforcement mechanisms used in developmental services systems outside of Ontario. We examined the following:
· Academic articles;
· Government reports;
· National and international legislation;
· Policies and procedures; and,
· Web-based materials.
The literature on human rights-based approaches, and international and national legislation were analyzed and used to develop principles of a human rights-based approach to enforcement.
The literature on enforcement mechanisms outside of Ontario was synthesized and used to analyze the various approaches to enforcement in the context of developmental services. We examined four Canadian provinces: Alberta, British Columbia, New Brunswick and Quebec. Outside of Canada we examined the Australian province of Victoria, the United Kingdom, California and Texas. We chose these jurisdictions because they speak and write in English, allowing us to access available literature; they vary in size, both in terms of population and geography; and they have interesting or noteworthy approaches to enforcement or the delivery of developmental services. The purpose of this analysis was to gain insight into the laws and practices in jurisdictions beyond Ontario, and use this insight to inform the enforcement mechanisms we propose for Ontario. Due to the time constraints of the project, our analysis was not exhaustive. It is fair to say that there is likely a gap between what is described in the report and what actually happens in practice in other jurisdictions, as is our experience in Ontario.
2. Consultations with Stakeholders
In the second phase of the research, we consulted with a range of stakeholders to obtain their thoughts on our findings and proposals. The emphasis for our consultations was speaking to people with intellectual disabilities in Ontario, as this is the community who will be impacted by the recommendations in our report. We are also mindful that the voices of people with intellectual disabilities are rarely heard when governments create and enforce developmental services systems. In the report, we use the term ‘stakeholders with disabilities’ to refer to people with intellectual disabilities who receive or are familiar with Ontario’s developmental services system and with whom we consulted.
During consultations with stakeholders with disabilities, we presented our findings and proposals and solicited feedback regarding the specific enforcement mechanisms being considered; the extent to which these mechanisms would address some of the key challenges that people with disabilities face in the developmental services sector; and, the potential for such mechanisms to have a positive impact on the lives of people who receive developmental services.
All of the consultations with people with disabilities were conducted by in-person meetings. We obtained consent from stakeholders for their participation in the consultations and for the use of information gathered at the consultations in this report. Plain language was used during all the consultations, and most of the consultations were facilitated by advisors or facilitators who were known to the group. At several of the consultation meetings, support staff were present to assist stakeholders. To ensure that stakeholders would not suffer repercussions from discussing their opinions, experiences and concerns, we provided opportunities for them to ask support staff to leave the meetings and we informed them that there was no obligation to participate in the consultations.
We also consulted with developmental service providers, advocates for people with intellectual disabilities, administrators and employees of government enforcement agencies. Some of these stakeholders were located in Ontario and others were located in the jurisdictions we surveyed outside of Ontario. Most of these consultations were conducted by telephone. They were used to gather a practical, “on the ground” understanding of enforcement mechanisms in other jurisdictions; learn about enforcement strategies that worked or failed; and obtain stakeholders’ thoughts on our findings and proposals.
The feedback and information received from stakeholders was invaluable and certainly informed our recommendations in this report. The responses, opinions and information gained from the consultations are reflected throughout the report. A list of those who participated in the consultations can be found in Appendix 1. However, due to the time constraints of the project, we did not consult with nearly as many stakeholders as we would have liked.
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