Meeting of Legal Aid Ontario Mental Health Law advisory committee on November 5, 2018

Published: November 5, 2018

• Board Advisory Committee meeting minutes

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)

Guest: Renee Fuchs

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.

3. Minutes, May 14, 2018

The minutes of the May 14, 2018, meeting were approved.

4. Legal Aid Ontario update slide deck

The Chair presented highlights of the Legal Aid Ontario Board Advisory Committees Fall 2018 Meetings: Legal Aid Ontario Updates and Business Planning slide deck.

Committee members provided the following input and advice. The views expressed do not necessarily reflect the views of every member.

• An important environmental consideration that will impact Legal Aid Ontario’s Prison Law Strategy is the fact that the provincial correctional reform legislation passed by the Liberal government has not been enacted. This legislation provided inmates with procedural protections, particularly around the use of segregation. The problem of segregation is not going to go away. Also, it appears that attempts to expand correctional mental health services, including for women, are on hold.
• Another environmental consideration is that children’s mental health is moving out of children’s services to the Ministry of Health and Long Term Care. There is very little information about what this will look like.

5. Strategic Plan Update

An update was provided on the development of the new strategic plan.

The advisory committees were invited to participate in consultations over the summer and many members attended one of the planning sessions. Legal Aid Ontario’s Board, staff, and other stakeholders were also consulted. Slides 18 and following in the slide deck identify the themes and strategic goals that have emerged from the consultation process, on a high level. The strategic goals relate to having a client‑centred focus; engaging staff; emphasizing innovative services; demonstrating value for money; and effective collaborations.

A draft strategy will soon be ready to go to the Board. However, the process is not complete. How Legal Aid Ontario will be implementing the strategic plan, in terms of meeting the goals of the plan and developing specific initiatives, will be very important. These next steps, and the key initiatives that will support the strategic plan, will be discussed with the advisory committees. Input from members is welcome.

Committee members provided the following input and advice. The views expressed do not necessarily reflect the views of every member.

• There was interest in continued engagement with the strategic planning process. Further consultation and involvement of the advisory committees was encouraged. As well, lawyers who provide legal aid services should continue to be consulted. Even though service provider lawyers are not legal aid staff, they also have an important interest.
• The impact of the change in provincial government on the implementation of the strategic plan and Legal Aid Ontario’s service delivery was discussed. Further development of the strategic plan may depend on being able to respond to potential changes to budgets.
• Transparency about legal aid decision-making needs to be part of the strategic plan. Even if a decision is going to be unpopular, such as a clampdown on coverage due to a funding squeeze, the policy change should be communicated and understood.

6. 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.

Legal Aid Ontario is holding a family law mental health training program on November 12, 2018, at the Centre for Social Innovation. The Mental Health Strategy partnered with family law lead policy counsel to develop the training program, which is designed to help family law staff and panel lawyers better assist clients with mental health needs. The program will be broadcast via livestream and will also be recorded. Training materials will be uploaded alongside the video. Topics to be covered include mental incapacity and the Family Law Rules, tips on representing clients with mental health issues, and accessing mental health resources.

This training will be a starting point, and obviously cannot cover everything in one day. Members were invited to suggest additional topics of interest for future consideration. Legal Aid Ontario would also be interested in uploading new training programs that other partners may be putting together, in order to make them available to lawyers.

The Mental Health Strategy is leading development of a new criminal mental health panel and panel standards. It will be a subpanel of the criminal law panel. The aim of the panel is to ensure that clients are connected to a criminal lawyer with sufficient mental health‑related experience. An advisory committee is being formed with internal and external stakeholders. There is a need for training in this area, particularly for Ontario Review Board matters and procedures. The strategy has been working with stakeholders and has reached out to the Ministry of the Attorney General to see if a training package can be put together.

Legal Aid Ontario is in the process of clarifying its 2015 civil mental health expansion coverage, specifically in relation to support for substitute decision makers in proceedings at the Consent and Capacity Board, to confirm that coverage is available for Form C and Form D hearings as well as Form G hearings. Of these three, Form C is the only one that requires an end‑of‑life scenario. Legal Aid Ontario is ensuring that intake staff understand the differences between these types of hearings so that they will be covered correctly.

A toolkit for staff that outlines all available civil mental health coverage is being developed, to increase staff familiarity with these services. Work is also ongoing to clarify coverage for mental health‑related legal aid services on the Legal Aid Ontario public website.

The Mental Health Strategy is working to update the Consent and Capacity Board panel list to include languages spoken and lawyers’ email contacts, to ensure that rights advisors can connect quickly with lawyers.

The strategy is increasing support for the Hamilton Outreach Project, and is in the early stages of working with the Aboriginal Justice Strategy to explore a potential embedded counsel program in Northern Ontario. Consultations have been held with stakeholders from the Kenora and Thunder Bay areas as well as the Ontario Federation of Indigenous Friendship Centres.

Legal Aid Ontario is looking at returning to merit consideration for Ontario Review Board appeals and would like to hear members’ views on what a potential merit test for these matters should look like. The number of Ontario Review Board appeals has been increasing every year. Anecdotally, there has been an increase in the success rate, for example in relation to obtaining a change in the level of restriction. It has been a year since the return to merit testing for Consent and Capacity Board appeals, and in that time the number of those appeals has dropped steeply.

In other updates, the Mental Health Strategy is participating on a committee to produce an information guide to assist older persons and their support persons to navigate the justice system. The strategy is also exploring ways to improve coordination of legal aid‑funded mental health assessments for refugee and immigration hearings.

In a report-back on advice provided at the spring meeting, it was noted that Legal Aid Ontario will continue to provide funding for filing and serving of the notice of appeal on an opinion letter certificate, and is willing to work towards addressing reduction of complexity in filing and serving Consent and Capacity Board notices of appeal. Legal Aid Ontario is also willing to work with the Consent and Capacity Board, Community Legal Education Ontario and others to develop resources to assist substitute decision makers.

Committee members provided the following input and advice. The views expressed do not necessarily reflect the views of every member.

• Potential future areas of focus for family mental health training could include:
  • Focusing on a First Nations perspective, since many clients have intersectional mental health and addiction issues, stemming from colonialism;
  • Training for lawyers on the duty or role of the child welfare agency where there are mental health concerns.
• Advice was provided on the development of criminal mental health panel standards:
  • Legal Aid Ontario will need to think about whether there should be a separate panel for Ontario Review Board matters, or whether Ontario Review Board requirements will be sheltered within this panel.
  • The standards should address the responsibilities that lawyers have to explain to their clients what it means to be in the forensic system. Some clients in the system say they did not understand what they were getting into, while others only received advice to stay away. The standards that are developed will have to deal with both sides, to ensure that accused persons are given required information. There are very complicated issues and a host of complex factors that must be considered. It is difficult to apply one standard to these clients, and there is no simple answer.
  • The standards must also address the responsibility to explain to clients what their rights of appeal are.
• Mental health education for the judiciary would be helpful. Often judges are hesitant to make a disposition because they do not feel that they have sufficient expertise in mental health, and they just want to send it out of their court. Then the matter goes to the Ontario Review Board, where a person can spend 10 or 20 years for a relatively minor offence. If judges knew more about their options, the Ontario Review Board might not be involved so often. Perhaps a meeting with the bench could be arranged. It would also be worthwhile to look into whether relevant training is available to judges, through the National Judicial Institute (NJI) or the Canadian Institute for the Administration of Justice (CIAJ).
• Education for justices of the peace is needed. They are gatekeepers when it comes to bail, and are prone to order detention when mental health is a factor. To this end, perhaps Legal Aid Ontario could provide training, such as a lunch and learn session, for duty counsel and panel lawyers who are on the front lines in bail courts.
• Substitute decision makers do not know what assistance may be available to them in a time of family crisis. Hospitals tend not to link them to assistance.
• Members confirmed that there has been an increase in the number of successful Ontario Review Board appeals, noting that this movement supports the quality of Ontario Review Board decisions. Clearly the court is interested in overseeing this area, and there is good reason to continue funding more appeals. Appeals of Ontario Review Board decisions have financial implications for hospitals but do not freeze a person’s treatment process, as is the case with a Consent and Capacity Board appeal. This may point to a different approach to the merit threshold for Ontario Review Board matters.
• Assistance from Legal Aid Ontario in working to reduce complexity in filing and serving Consent and Capacity Board notices of appeal would be helpful. Paperwork has to be filed in the court, with affidavits of service. Members noted that unsuccessful attempts have been made in the past to align processes with those applied to Ontario Review Board appeals.

7. Justice in Time Project: update and discussion

An update on the Justice in Time Project was provided by embedded counsel supporting the project. It was noted that the project’s annual report is in the final stages of preparation. Justice in Time aims to meet the legal needs of marginalized persons who have intersecting mental health and addiction issues. Legal assistance is available at Sound Times, as well as at C Court at Old City Hall, where a lawyer and paralegal are available every Thursday to keep persons facing nuisance charges from going to jail.

At Sound Times, Justice on Time dealt with 151 matters during the reporting year, mostly in the area of criminal law but also in other areas including family law, housing, and access to records. Services provided range from representation to summary legal advice. The C Court project served 141 clients and has maintained a jail-free and fine-free record, with 86% of matters stayed or withdrawn, 6% resulting in a guilty plea, and 8% of matters vacated that were set down for ex parte trials. The project also includes an outreach component, including lunch and learn presentations. It is supported by stakeholders and the judiciary.

Looking ahead, the hope is that the project can secure permanent funding. There will be a focus on collecting more data. A handbook is also being prepared so that the institutional knowledge of the project can be passed on.

8. Other business

None raised.