Board advisory committees

Meeting of the Legal Aid Ontario mental health advisory committee on October 7, 2015

Committee members

John McCamus (Chair); Bipasha Choudhury; Lucy Costa; Shannon Down; Christel Francis; Colleen Gray; Greg Iwasiw; Heidi Longboat; Jane Mackenzie; Marion Overholt; Donald Rose; David Shannon; Marshall Swadron; Marie Taylor; Dianne Wintermute; Nancy Cooper (LAO Board liaison)

1. Welcome and introductions

The Chair opened the meeting and welcomed those present.

2. Minutes, March 4, 2015

The minutes of the March 4, 2015 meeting were approved.

3. LAO business planning slide deck and discussion

The Chair provided an overview of the Update on current and future LAO initiatives slide deck. The fall advisory committee meetings come at a time when LAO is getting closer to identifying its priorities for the following year’s business plan, and the slide deck outlines these ideas, along with an update on current initiatives at LAO.

Increased eligibility for legal aid remains a high-priority initiative. There are two dimensions to eligibility—legal eligibility and financial eligibility. Legal eligibility has to do with whether a legal issue is the type of case that legal aid covers. Financial eligibility had not been adjusted in nearly 20 years when LAO made its business case to the province for funding to support increasing the eligibility thresholds, in principle over an eight to ten year period, to reach the standard of the low income measure (LIM). The province responded with an historic injection of funding to be used to provide services to newly eligible clients. It was agreed that legal as well as financial eligibility could be expanded using this new money.

The 2014 and 2015 provincial budgets gave LAO four years of committed funding for expanded eligibility. The major changes made since 2014 are outlined in the slide deck, and the impact of those changes on the number of legal aid certificates issued is charted in the deck. LAO is projecting a 20 per cent increase in certificates by the end of the year as a result of expanded eligibility. This translates into an increase from approximately 80,000 to 100,000 certificates, higher than LAO had originally forecasted. The expansion in certificates is tracking the priorities that LAO established for expansion, including first offenders and secondary consequences of a criminal conviction.

LAO has also allocated 20 per cent of the new expansion money to legal clinics and Student Legal Aid Service Societies (SLASS). They are using the funds to hire additional staff to provide services to new clients, with a focus on supporting clinic initiatives and addressing the underfunding of clinics with a proportional share of the low-income population that has grown over time.

Clinic transformation remains an important topic among the province’s legal clinics. A proposal brought forward by a group of clinic staff that would have amalgamated the clinics in the Greater Toronto Area (GTA) into a smaller number of larger clinics did not proceed, due to insufficient support. Some of the GTA clinics are now getting together to discuss other potential ideas. Outside of Toronto, a lot has been happening, and clinics around the province are working on ideas for collaboration and sharing of administrative costs.

The Attorney General has established a justice round table and two sub-tables focused on family and criminal law issues. LAO is an active participant in this process. LAO policy counsel leading the LAO Mental Health Strategy reported to the committee on the initial meeting of the criminal justice table, which highlighted mental health issues. Approximately 20-25 organizations participated, including the John Howard Society, Elizabeth Fry Society, and some legal clinics. Some strong themes emerged from the meeting, as follows:

  • One main area of focus was bail, and how problems in the bail system impact clients with mental illness and addictions.

  • Another theme was the need to revisit some Ministry of the Attorney General (MAG) policies, and the need for new and shared policies. A need to update MAG’s diversion policy was identified.

  • Another outcome of the meeting was a shared understanding that there is a need to expand the definition of mental health and addiction.

  • The next step will be the appointment of two co-chairs and the establishment of a smaller working group to develop a list of topics on which the table will make recommendations to MAG.

Some highlights of LAO’s priority client strategies were provided, as follows:

  • The first client strategy to be implemented at LAO was the Aboriginal Justice Strategy (AJS). Through the AJS in the past year, LAO has funded Aboriginal legal services to expand its Gladue report writing services to more locations. Another AJS initiative is the development of a second round of cultural competency training for LAO staff.

  • LAO is starting to develop a Domestic Violence Strategy (DVS), and published a consultation paper on its website this summer.

LAO has introduced new and expanded certificate coverage for bail as part of legal eligibility expansion, and would like to do more to assist in addressing systemic problems in the bail area. Members were encouraged to provide feedback on the draft policy background paper on bail that had been circulated to the committee with the meeting materials.

Test case work is another area where LAO has been working to make improvements. In the past year LAO has strengthened its Group Application and Test Case Committee (GATCC) and has identified some priority areas for test case work.

Looking ahead to 2016/17, LAO’s planning will take environmental factors, including the fiscal environment, into account. Dedicated new funding has been provided to LAO for eligibility expansion, but there are financial challenges with which the province will not be able to assist. The provincial government is working to eliminate its deficit and has launched a program review to identify savings.

LAO will also look at client and service trends as part of its planning process, as follows:

  • The number of criminal charges in the Ontario Court of Justice has been decreasing for the past number of years, a phenomenon that can be observed throughout the western world. Some attribute this to the fact that the number of young males in western society is decreasing. But, as the LAO Board heard from the University of Toronto’s Professor Tony Doob at the last Board retreat, there is no obvious explanation and no clear link can be made to demographics.

  • The number of child protection cases is also dropping although, as with criminal charges, the general trend does not apply to Aboriginal clients.

  • Refugee claims dropped steeply after new federal legislation was introduced in 2012, but the numbers have begun to climb again. LAO believes that this year it will issue about 7,500 certificates. LAO is working on plans to support the anticipated influx of refugees from Syria to Ontario.

In the year ahead, implementing expanded eligibility will continue to be a priority. Whether or not a second round of legal eligibility expansion can be introduced will depend on the availability of funding, after the cost of the first round is analyzed and factored in.

In addition to expanded eligibility, LAO will continue to focus on its priority client strategies. The next client strategy to be developed will be a Racialized Communities Strategy. Other possible initiatives for next year include increasing transparency and looking at the potential for tariff reform.

Committee members provided input and advice as follows:

  • It would be useful for members to be able to see the specifics of LAO’s completed business plan as a follow-up to the early outline of likely priorities provided in the slide deck. While LAO is bound by confidentiality in respect of the business plan document submitted to MAG, there are plans to create a stripped-down version of the final plan that can be shared. LAO will also respond to questions about the plan.

  • It was reported that clients who formerly would have been refused a certificate because they did not face jail time if convicted are now being found eligible. The suggestion was made that it would be useful for LAO to be able to track newly eligible clients going into the mental health system. Some certificates may fall under more than one of the expansion priorities. Data collection should become more precise as time goes on.

  • When it considers mental health issues, the criminal justice table might look at the connections between the civil and criminal mental health systems. Many criminal accused have previously had contact with the civil mental health system. Psychiatric hospital policies may give rise to criminal charges, for example where employees contact the police to have patients charged with assault. There may be opportunities to provide early access and advice.

  • The committee was pleased to hear that LAO will be developing a Racialized Communities Strategy. It is known that African-Canadians and indigenous peoples are over-represented in the criminal justice system. A member suggested that it would be helpful if LAO could collect statistics on race to support its work on the new strategy, as is done in the context of the Aboriginal Justice Strategy. The member apprised the Committee of the Ontario Human Rights Commission’s (OHRC) best practice guide Count me in! Collecting human rights-based data, which may be used as a possible reference.

  • The committee was interested in keeping up-to-date on LAO’s plans for services to support Syrian refugees arriving in Ontario.

4. Mental health strategy update/discussion

LAO policy counsel leading the LAO Mental Health Strategy provided an update on the Mental Health Strategy (MHS) and other matters of interest in the area of mental health.

LAO’s CEO and Chair has received a completed draft of the MHS blueprint. It should be available to share with the committee in the near future. When it is released to the public, a dedicated webpage on the LAO website will introduce it.

The strategy is a synthesis of comprehensive consultations conducted in 2014. LAO conducted approximately two dozen in-person sessions in eight communities and met with over a dozen large institutions. There were 800 unique downloads of LAO’s consultation paper and LAO received over 65 pieces of formal written feedback.

The strategy is built around three broad themes—rights, access and sustainability.

There are several considerations when it comes to rights. In terms of rights for whom, mental illness and addiction need to be defined broadly, so as to include, for example, persons with dual diagnosis or dementia. In terms of rights where, the strategy will not be confined to the criminal and civil mental health systems because mental illness manifests itself in all areas of legal aid practice. In terms of rights how, there is a need to expand the number of clients that LAO can assist, for example through relaxing the eligibility criteria, making certificates more flexible, and connecting clients with counsel at the earliest opportunity.

On the theme of access, the strategy blueprint will talk about expanding access points, stitching services together, and helping clients build trust with lawyers.

Finally, with respect to the third theme, the sustainability of the MHS requires investment in training and new tools for service providers. In recognition that every legal aid service provider will encounter clients with mental illness and addictions, LAO needs to establish quality service to these clients as a standard in every practice area.

LAO has been developing programs to support the MHS. One of these is the mental health appeals program, which LAO worked on in consultation with the Ontario Court of Appeal, Ontario Review Board, Consent and Capacity Board, the Criminal Lawyers’ Association and the Mental Health Legal Committee. The appeals program has been up and running on an interim basis for about a year now. It reflects several of the themes of the MHS, including building capacity and expertise in the bar.

LAO has been meeting with the hospitals’ forensic directors group, which had some concerns about the appeals program, and they have found more common ground. They are interested in quality standards, training for the bar, and data on outcomes. In terms of the likely cost impact of the program, LAO has explained that, while there will be an increase in the number of appeals, it will not be a “floodgates” scenario.

LAO has been working with the Mental Health Commission of Canada on developing a training program, and has been creating a guided interview tool for counsel.

LAO is keeping an eye on Bill 122, which introduces amendments to the Mental Health Act in response to the P.S. case, which concerned a person who was detained for 20 years in the civil mental health system. The new legislation proposes a care plan approach to persons detained civilly for six months or longer. It would affect between 150-300 people across the province.

Committee members provided input and advice as follows:

  • There was praise for LAO’s thoughtful approach to the mental health strategy. It was stressed that there needs to be an accessible version of the strategy document posted on the LAO website. People should also be able to provide continuing feedback on the strategy through the website.

  • It was felt that, as the MHS takes root, particularly through community support agencies, there will be an obvious intersection with clients who have physical disabilities. If no dedicated strategy is being planned for these clients, perhaps room could be found for them within the MHS. It would seem to be a natural fit, as the need to accommodate and to teach people not to discriminate applies in equal measure to either client group.

  • It was pointed out that, in the wake of the Supreme Court of Canada’s decision in Carter on assisted suicide, additional concerns will arise around end-of-life decision making. The current rights advice stream may not be enough and there should be some form of advocacy available in case mistakes are made. LAO is getting the word out that it provides certificate coverage to substitute decision makers for representation at Form G end of life hearings initiated by physicians at the Consent and Capacity Board.

  • More mental health courts are needed. Some jurisdictions feel that if they offer diversion it is not necessary to have a mental health court. LAO policy counsel leading the LAO Mental Health Strategy noted that a 2012 MAG survey of 56 courthouses found that 53 reported some kind of mental health program, but the nature of the services offered could vary widely. There should be a minimum standard, and this is likely to be reflected in recommendations made by the Ministry’s Criminal Justice Table.

  • Members supported the mental health appeals program as good for clients, who can now pursue more appeals.

5. Consultation on advisory committee public postings

The Chair introduced a proposal to post, onto LAO’s website, the names of advisory committee members, along with public versions of the minutes and the advisory committee slide decks. Confidential information would not be included, and members’ names would not be linked to specific comments. The public minutes would not indicate which members attended and which were absent from meetings. Otherwise, the public versions of the minutes would be unlikely to differ from those received by members. The proposed public version would be circulated to members before being posted.

The Board has not yet considered this proposal, and the decision will depend on consultations with the committees. Of the five committees that have met so far this fall, four were enthusiastic and the fifth was unenthusiastic, although not opposed to the proposal.

Committee members had no objection to the proposal. It was pointed out that the minutes do a good job of presenting the discussion of the committee without identifying who raised particular points.

The public minutes should not include references to specific locations where members work. Instead of naming a particular hospital, for example, the minutes could say “at one of the hospitals”.

LAO could consider indicating who was present at meetings but not identifying who sent regrets, as an alternative to not including any attendance information.

It was suggested that LAO could add a one- or two-sentence biographical sketch to each committee member’s name, or at least list members’ institutional affiliations.

6. Action items

  1. LAO will keep the committee up-to-date on its plans for providing services to support Syrian refugees arriving in Ontario.

  2. LAO will keep accessibility in mind when posting the Mental Health Strategy blueprint document on its website.

7. Other business

None raised.