No law, policy or program will operate perfectly: errors and problems will inevitably arise, and mechanisms must be put in place to identify and address these. Therefore, persons with disabilities require meaningful access to the law. Some laws rely on complaint mechanisms of various types to identify and resolve issues, while others use proactive mechanisms like audits or institutional advocates for this purpose, and others use a combination of mechanisms. This section applies the principles to complaint and enforcement mechanisms.
Applying the Principles to Step 6
Note: “Law” here refers to law, policy and practice as appropriate.
Meaningful complaint and enforcement mechanisms are important, not only for addressing individual issues that may arise in the implementation of a program, but also for identifying and addressing systemic problems with a law or its implementation. Persons with disabilities may face a range of barriers in accessing the law, including a lack of clear rights and remedies; multilayered, fragmented or inaccessible systems that fail to take into account their needs and circumstances; power imbalances and a lack of information and advocacy supports. Some programs or services provide no meaningful complaint or enforcement mechanisms.
The principles of respecting dignity and worth and of facilitating the right to live in safety mean that there must be meaningful mechanisms to ensure that persons with disabilities are able to raise concerns about mistreatment, exploitation or abuse, that there is meaningful redress when such issues arise, and that they are not subject to retaliation for doing so. Responding to diversity requires that complaint and enforcement mechanisms take into account the diverse needs and circumstances of persons with disabilities, including ensuring that all aspects of complaint and enforcement mechanisms are accessible for persons with disabilities. This includes ensuring that complaint mechanisms are sufficiently simple and transparent for unrepresented individuals to navigate – or if not, that they have the advocacy supports necessary to do so. To ensure autonomy and independence, persons with disabilities must have access to the information that they need to understand and enforce their rights. The principle of inclusion and participation requires that complaint mechanisms facilitate the ability of persons with disabilities to be actively involved in claiming their rights, including provision of the supports necessary to empower them to do so.
QUESTIONS FOR CONSIDERATION IN APPLYING THIS STEP
1. Does the law include access to a complaint and enforcement mechanism that clearly and meaningfully identifies, addresses and remedies both individual and systemic violations of the law, including for those individuals who are particularly disadvantaged or at heightened risk?
2. How have the complaint and enforcement mechanisms been designed to address power imbalances and prevent potential retaliation against those who raise issues?
3. How have the complaint and enforcement mechanisms been designed to be accessible for persons with disabilities, including providing appropriate accommodations, addressing barriers related to low-income and recognizing intersecting identities?
4. How have the complaint and enforcement mechanisms been designed to be navigable for persons with complaints, for example through ensuring the mechanisms are simple and transparent, or by providing navigational assistance?
5. How are persons with disabilities provided with meaningful and accessible information about their rights and how to enforce them?
6. How have supports been made available to persons with disabilities to empower them to understand their rights and advocate for themselves?
APPLYING THE FRAMEWORK: EXAMPLE OF THE RELATIONSHIP OF THE PRINCIPLES TO ENFORCEMENT MECHANISMS
Enforcing Rights in Ontario’s Developmental Services System
Ontario’s Social Inclusion Act marked a major and positive paradigm shift in the provision of services to persons with intellectual disabilities, moving the focus for services and supports away from institutions and into communities. However, it appears that some limitations remain in the legislation’s enforcement mechanisms, which may compromise the full achievement of the legislation’s promise. A strong complaint system is essential to preventing or addressing exploitation or abuse, and thereby to the right to live in safety. Kerri Joffe (ARCH Disability Law Centre) points out that the Act does not take a rights-based approach to the provision of services. Rather, the Act and accompanying regulations establish minimum standards with which service providers and community agencies that administer funding or process applications must comply to ensure quality assurance. Enforcement of these minimum standards occurs predominantly via government oversight, through mandatory reporting requirements, inspections, orders and government take-overs of agencies. Complaints must be made directly to the service providers; this raises concerns about power imbalances, transparency and neutrality, and therefore about the right to live in safety, as it may expose persons with disabilities to reprisal from service providers. To respond to this, regulations under the Act do require agencies to ensure that those who provide feedback or make complaints are not risking reprisal by doing so.
There is no provision for rights education, or empowerment supports for persons with intellectual disabilities who wish to raise concerns about the services they receive, although complaint procedures must consider the role of persons receiving support. The lack of rights education and empowerment supports for persons with intellectual disabilities raise concerns about the autonomy of these individuals, as they may not be able to access the information needed to make choices, and about their inclusion and participation as they will face barriers in successfully navigating the complaints system.
See LCO Commissioned Research Paper, Kerri Joffe, ARCH, Enforcing the Rights of Persons with Disabilities In Ontario’s Developmental Services System (2010)
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