Meeting of Legal Aid Ontario Mental Health Law advisory committee on May 14, 2018
Published: May 14, 2018
1. Committee members
John McCamus (Chair), Russell Browne, Linda Carey, Lucy Costa, Colleen Gray, Julie Goulet, Renee Griffin, Greg Iwasiw, Mary Murphy, Marion Overholt, Jérôme Pommier, Don Rose, David Shannon, Sandy Simpson, Karen Steward, Marshall Swadron, Susan Woolner, Christa Freiler (Legal Aid Ontario Board Liaison)
Guests: Julia Brown, Sharon Crowe
Legal Aid Ontario staff attending: Marcus Pratt, A.J. Grant‑Nicholson, Janet Froud, Heather Morgan
2. Welcome and introductions
Chair John McCamus opened the meeting and welcomed those present.
It was noted, for the benefit of new members, that there are nine Board advisory committees which each meet twice yearly. The work of the advisory committees aligns with the business planning cycle at Legal Aid Ontario, which begins in spring each year with the environmental scan process and ends in December when the business plan for the following year is provided to the Ministry of the Attorney General. The advisory committees are asked at the spring meetings to provide advice on environmental factors that should be considered in planning for the next year. In the fall, as ideas for the new business plan are taking shape, Legal Aid Ontario again seeks feedback from the committees. A Board liaison member sits on each committee and the minutes of all advisory committee meetings are received by the Board.
The Chair noted that the minutes of the advisory committees are public, and are posted on the Legal Aid Ontario website along with the names and brief biographies of members. Committee materials and discussions are not considered confidential unless they are clearly identified as such.
3. Minutes, September 25, 2017
An amendment to the second last bullet point on page was requested; the reference to 20% should read “as much as 40‑50%”.
The minutes of the September 25, 2017, meeting were approved as amended.
4. Legal Aid Ontario update slide deck
The Chair presented highlights of the Legal Aid Ontario Board Advisory Committees Spring 2018 Meetings: Legal Aid Ontario Updates and Environmental Scan slide deck. The deck was not presented in its entirety.
5. LAO Mental Health Strategy update
The update on Legal Aid Ontario’s Mental Health Strategy was provided by Legal Aid Ontario’s Mental Health Strategy lead.
The Mental Health Appeal Program was kicked off in 2014, when a decision was made to remove merit consideration for Consent and Capacity Board as well as Ontario Review Board appeals. The aim was to increase judicial oversight, as few appeals were coming forward. There were some successes, including a number of successful appeals. At the same time, there were some negative consequences. Based on lessons learned, a new merit test was introduced for Consent and Capacity Board appeals in November 2017. The new test has two stages of merit assessment and provides a more balanced approach to funding appeals. Legal Aid Ontario is working to ensure the new process does not cause undue delay, and has introduced improved tracking of outcomes.
A new Appeal Guide has been prepared to assist area committees in applying the new test. Legal Aid Ontario worked with partners, including the private bar, to develop the guide which is available in English and French. Billing for Consent and Capacity Board appeals remains the same as before the change.
Legal Aid Ontario continues to fund all Ontario Review Board appeals, without consideration of merit. There are relatively fewer abandoned appeals (as compared to Ontario Review Board appeals) and the success rate is relatively high. Ontario Review Board matters have been considered a subset of criminal law by Legal Aid Ontario. However in some cases, particularly in Toronto, the lawyer who represents a client in the criminal matter may not follow the matter into the Ontario Review Board process. Work is now underway to develop an Ontario Review Board legal aid panel, in consultation with the private bar and other stakeholders. Legal Aid Ontario is also working with stakeholders to develop training materials related to Ontario Review Board matters.
Mental health training for criminal lawyers was developed in 2016 and is now available to private bar panel lawyers, as well as to Legal Aid Ontario and clinic staff, on the LAO LAW website. The program focuses on assisting mental health clients in the criminal context. This year Legal Aid Ontario will be developing mental health training in the area of family law. The work is currently in the consultation stage, and ideas from the committee on topics to be included and people to be consulted are welcome. The criminal mental health training covered self care and the impact of vicarious trauma, as lawyers are not immune to this. As with the criminal mental health training, the family law training video and related materials will be made available on the LAO LAW website and will be offered to other legal aid plans across the country.
An update was provided on two embedded lawyer initiatives supported by the Mental Health Strategy. The Justice in Time Project involves a community partnership with Sound Times in Toronto. The Hamilton Legal Outreach Project is a joint Legal Aid Ontario and Hamilton Community Legal Clinic project that places lawyers at a variety of community sites frequented by people with mental health and poverty law needs. Both projects have recently produced reports which have been shared with the committee. A presentation by one of the lawyers involved in the Hamilton Legal Outreach project is also on the meeting agenda.
The Mental Health Strategy is actively looking for new communities and partners to work with in establishing other projects. There may, for example, be opportunities to employ the embedded counsel model to support the elderly population in the drafting of powers of attorney.
Some future developments for the Mental Health Strategy include engagement with the Ministry of Community Safety and Correctional Services’ Discharge from Distant Court Program, which is getting ready to launch in four locations, and a joint initiative with Legal Aid Ontario’s other vulnerable client strategies to develop a fast track legal aid application process for trusted intermediaries assisting vulnerable persons in the community.
Legal Aid Ontario is also exploring the potential to expand civil mental health certificate coverage, both to ensure that its 2015 expanded coverage is working as intended and to respond to recommendations in the Law Commission of Ontario’s Capacity and Decision Making and Guardianship report. Guardianship certificates currently cover s.3 appointments, ad could be expanded to cover, for example, court‑appointed guardianship applications. Legal Aid Ontario is looking at whether it can expand coverage at Form G, B, C and D Consent and Capacity Board hearings to assist financially eligible substitute decision makers. Additionally, a new end of life pilot project could provide summary legal advice to unrepresented substitute decision makers at Consent and Capacity Board hearings that involve an end of life treatment decision. Stakeholders have indicated that it is very important to connect people with lawyers quickly, and substitute decision makers may not be aware of the availability of legal aid. Potentially, a two hour authorization to receive advice from a lawyer could be valuable in this area. The only issue is that not all substitute decision makers are likely to be financially eligible. Legal Aid Ontario could also produce educational materials, possibly in collaboration with Community Legal Education Ontario (CLEO), and make them available in hospitals. The Mental Health Strategy will continue to meet and consult with stakeholders to explore these ideas.
Committee members provided the following input and advice. The views expressed do not necessarily reflect the views of every member.
Concerns were raised that a lawyer preparing a notice of appeal for a Consent and Capacity Board matter in order to preserve a client’s right of appeal may not be able to complete the opinion letter process and receive a certificate from legal aid within the seven day timeframe. If a client qualifies financially the preparation of the opinion letter is covered by Legal Aid Ontario. However, it may be difficult to find a lawyer. A new appeal certificate is sometimes required, if the lawyer who represented the client at the hearing is discharged. One approach could be to release the lawyer who conducted the hearing from the obligation to perfect the appeal. If a certificate amendment was available it could also eliminate a lot of uncertainty. Perhaps a twin-track process could be developed, with a block of hours separately available where a different lawyer wants to bring the client’s appeal forward.
The development of an Ontario Review Board panel and related training materials is important work. The Ontario Review Board process falls under the Criminal Code but the work requires specialized skills and understanding. It is a different area of practice and should have its own panel standards and supports. Stakeholders including the forensic directors are willing to partner with Legal Aid Ontario to support this work.
The private bar would be very interested in being able to access Ontario Review Board training materials and this is a great opportunity for continuing professional development. Sometimes a client wants the same lawyer who helped them with their criminal matter to stay with them through the Ontario Review Board process, but this is a different process and context and lawyers who are unfamiliar with it need access to training. If there are issues of capacity involved there is overlap with the civil side as well.
Some members affirmed the need for mental health training for justice professionals to address vicarious trauma. It was noted that there is increasing awareness of the reality and impact of vicarious trauma, and the federal government is currently considering the issue in the context of jurors. Other members emphasized the need for training to focus on the needs of low‑income clients who experience trauma and who lack the resources that are available to professionals.
An ongoing struggle exists to connect people with services for addictions, and there may be partners who can assist in this area, perhaps in connection with the Drug Treatment Court.
Clinics make good partners. A new clinic project is starting in Windsor, with outreach that includes workshops on guardianship and knowing your rights. Clinics also do a lot of landlord‑tenant work, and in this area a growing problem exists around seniors losing their housing; often there is a mental health component. Even if the tenant does not yet lack capacity, they are not cooperating in the process and often fail to recognize that there is a problem. It can be difficult to get landlords on board, and it would be good to work with the Mental Health Strategy on ways to address this.
Providing assistance for persons involved in end of life decision making is a good idea. Any assistance at all can be valuable to a family in crisis. It was noted that the number of medically assisted deaths is on the increase. Home care workers and agencies have little medical training but they are on the front lines and don’t know what to say when people ask them about medically assisted death. Families call the Psychiatric Patient Advocate Centre and the Advocacy Centre for the Elderly, which is unable to assist because of the issues raised for the senior, and it would be good for them to have somewhere to go for assistance. A resource for substitute decision makers is an excellent idea.
There are other areas where summary legal advice or other resources for substitute decision makers would be helpful, for example around Community Treatment Orders. Also, substitute decision makers at Form G hearings (before the Consent and Capacity Board) need support. Sometimes they are pressured to sign documents and should be aware of their rights. Where children and young persons are involved, the threat of going to the Children’s Aid Society may be made. Another scenario involves two older spouses, where one is making decisions for the other. There are a number of situations where people are overmatched and should have access to legal assistance. Although not everyone may be financially eligible for legal aid, Legal Aid Ontario could still provide an important service for these people by helping to match them up with counsel.
Expanded certificate coverage for guardianship would be very good.
Consistency in provision of services and resources is important. The availability of services tends to ebb and flow in relation to the amount of funding that legal aid has available.
6. Hamilton Legal Outreach Project: presentation and discussion
Sharon Crowe, Staff Lawyer at the Hamilton Community Legal Clinic, presented an overview of the Hamilton Legal Outreach Project. The project’s goal is to improve services provided to clients with mental health issues. The idea grew out of a community brainstorming session. It was made clear in consultations with community partners that services to these clients could be improved by meeting people where they are at since these are clients that find it difficult to access services in conventional ways.
The project involves a close partnership between the clinic and Legal Aid Ontario’s Hamilton‑Kitchener District Office. The close connection is important because it reduces inaccessibility of the legal services that are available to these clients, who are likely to have more than one intersecting legal issue. For example, people are frequently evicted because of criminal activity. The clinic specializes in landlord and tenant, social assistance, human rights, employment, Workers’ Safety Insurance Board and Criminal Injuries Compensation Board matters, and also provides limited immigration law services.
The project works with several community partners, who are listed in the mid‑term evaluation report provided to members. They include a food bank with addiction services, a youth shelter a women’s drop‑in centre and McMaster Medical School Family Practice. There are six regular outreach clinics, but a flexible approach means that other locations are also visited. The project is assisted by two Legal Aid Ontario lawyers and one paralegal, three clinic lawyers, and a case coordinator who is a social worker who plays a key navigational role and also connects clients to services that address their non‑legal needs.
Based on monthly statistics, client and partner feedback surveys, positive press coverage, and direct referrals from the community, the project and its collaborative approach have been a success.
7. Other business