Board advisory committees

Meeting of Legal Aid Ontario mental health law advisory committee on September 19, 2016

Committee members

John McCamus (Chair), Bipasha Choudhury, Lucy Costa, Shannon Down, Christel Francis, Colleen Gray, Greg Iwasiw, Jane Mackenzie, Marion Overholt, Donald Rose, David Shannon, Marshall Swadron, Marie Taylor, John Liston (LAO Board Liaison)

1. Welcome and introductions

The Chair opened the meeting and welcomed those present.

2. Minutes, March 30, 2016

The minutes of the March 30, 2016 meeting were approved.

3. LAO business planning slide deck and discussion

The Chair provided an overview of the LAO Board Advisory Committees Fall 2016 Meetings: LAO updates and proposed priorities for 2017-2018 slide deck, beginning with LAO’s financial picture. LAO is obliged to balance its books and currently faces around a $20 million deficit. One reason for this is that the demand for refugee services has skyrocketed, creating about a $10 million problem. The other main source of the deficit is related to higher than anticipated demand in response to LAO’s eligibility expansion initiative.

Since 2014, LAO has received $96 million from the province to expand eligibility for legal aid. There have been three six percent increases to financial eligibility. LAO believes there will be at least one more year of eligibility funding and possibly more. LAO’s business case was based on a long-term expansion of eligibility over seven to-10 years, to double the number of low-income Ontarians that would qualify for legal aid. With the six percent increase that came into effect on April 1, 2016, there are now 1.4 million people who are eligible, up from 1 million before the first increase was made. A proportional amount of the new eligibility funding has also been allocated to legal clinics.

The new funding was only to be used to provide services to newly eligible clients and the province agreed that this could include making legal aid available for types of cases that were not previously covered. LAO implemented legal eligibility expansion in June 2015. It was hard to predict what the demand would be for the new types of services, but in 2015-2016 certificate issuance increased by 24 percent over the previous year, which is a very significant change. LAO has worked to clarify the criteria for coverage but is still running over budget on the new certificates. LAO hopes that this problem will be solved over the next 18 months, as legal eligibility was a one-time expansion and it is anticipated that new funding to support expanded eligibility will be coming.

LAO has a number of client strategies. The first of these was the Aboriginal Justice Strategy, which continues to bring new initiatives forward each year. This year, the Aboriginal Justice Strategy is focusing on building a stronger presence in local districts and communities through the development of local leads.

Currently, LAO is developing a Domestic Violence Strategy. LAO has always treated responding to domestic violence as a priority, and has had protocols in place to address this issue for a number of years. LAO has been holding province-wide consultations and providing domestic violence awareness training to staff. The new strategy will be introduced by the end of the fiscal year.

LAO has developed a strategy to respond to bail system issues in Ontario, where the majority of people in provincial custody are awaiting bail or sentencing decisions rather than serving a sentence. The new Attorney General also has a strong interest in bail reform and LAO hopes to be able to announce its new strategy later in the fall, possibly in coordination with the Ministry of the Attorney General.

Policy Counsel co-leading the development of LAO’s Racialized Communities Strategy reported that so far LAO has met with about 55 stakeholders from legal clinics, agencies and organizations serving racialized communities. LAO has been asking questions about how its services are meeting the needs of racialized communities, and would appreciate feedback from the committee. There is also a webpage for providing feedback. LAO plans to release its consultation paper in March 2017.

LAO has been taking on a bigger role in making submissions and responding to government consultations. In August 2016, LAO made a submission to the Ministry of Community Safety and Correctional Services on developing a Strategy for a Safer Ontario, which involves the first review of the Police Services Act for the first time in 25 years. LAO’s submission, which included 27 recommendations, focused on the impact of police practices on vulnerable communities. LAO’s recommendations speak to issues of education and training, wider use of diversion, standardization and guidance with respect to community initiatives, the criminalization of persons with mental illnesses and addictions, and issues related to policing and privacy. The Ministry of Community Safety and Correctional Services is reviewing the submissions that they received.

LAO is also starting to develop a Prison Law Strategy and has made submissions to the Ministry of Community Safety and Correctional Services on the use of segregation in the province’s adult correctional facilities, and on conditions at the Ottawa-Carleton Detention Centre.

In the area of family law, LAO has been working with the Motherisk Commission to make representation available to parents affected by flawed Motherisk hair analysis test results. Three years ago, LAO used one-time, three-year funding from the province to improve family law services, including providing funding to Student Legal Aid Services Societies to offer services in family law. The funding is in its final year and LAO is exploring options for the new services.

In the area of criminal law, LAO is providing funding for mandatory second judicial pre-trials at pilot locations in support of the Ontario Court of Justice’s Criminal Modernization Project.

The cost of providing refugee services has gone up steeply and LAO is making efforts to secure additional funding.

The province has introduced a major initiative on transparency and open government, which LAO is supporting. The province has asked agencies to identify their information holdings. It is a complex issue for LAO because much of LAO’s information is protected by solicitor-client privilege, but LAO makes a great deal of information available. For example, following consultations with all of its advisory committees, LAO now publishes advisory committee minutes online. LAO would like input from the committee on what kinds of information they feel it would be helpful to disclose.

LAO is interested in making more effective use of technology to improve client services. A week ago, LAO hosted a conference on “Wired Justice” featuring leaders in technology and access to justice, who participated by Skype.

Looking ahead to the development of next year’s business plan, LAO plans to continue focusing on the priorities that were established for the current year. Financial eligibility will continue to be a major initiative, and LAO will continue to develop and implement its client strategies.

4. Mental Health Strategy update and discussion

LAO Policy Counsel leading the Mental Health Strategy updated the committee on the strategy and related developments at LAO.

The Mental Health Strategy had its public launch in late March 2016. Since then, the strategy has focused on getting foundational and high-priority programs off the ground.

A major focus has been placed on training. Mental health training was developed over a two-year period with the assistance of an advisory committee that included input from the private bar, legal clinics, duty counsel, staff lawyers, and academics. There was also an important partnership with the Mental Health Commission of Canada. The result was new training and a new practice support tool that will assist lawyers in identifying the needs of clients and the intersecting legal issues, such as access to income support and housing, that have an impact on clients and feed the cycle of recidivism.

The training has been organized into four modules, focusing on the history of the struggle for psychiatric rights, the use of the new intake tool and other resources, accommodation and communication skills, and self-care and wellness in the profession of law. LAO has also developed a two-day substantive course in criminal mental health law, and has offered the Mental Health Commission of Canada’s Mental Health First Aid Program. Training was rolled out to staff criminal lawyers through district leads in July 2016. The district leads will then train their local staff. When the training has been fully rolled out to staff, sometime after October 2016, it can then be rolled out to others including the private bar. It will also be made available to other Canadian legal aid plans, to be adapted for their own use. Consultations with subject matter experts will be needed to adapt the training, which focuses on criminal law, to other areas of law.

Another foundational aspect of the strategy is increasing the availability of outreach counsel, embedded in places such as drop-in centres, hospitals and community centres. LAO now has two pilot sites up and running that are based on this model. One pilot is located at Sound Times, which is a large mental health and integrated services agency in Toronto, and the other is in Hamilton. The outreach model provides easier access to clients and helps to establish trust.

LAO has expanded coverage for some Provincial Offences Act charges and is seeing a lot of demand in this area. LAO also continues to support development of the mental health appeals program, and has been meeting with stakeholders including the forensic directors, and working towards the full implementation of the program. There have been about 120 appeals so far, roughly split between Ontario Review Board and Consent and Capacity Board matters. The appeals program is an important access to justice initiative.

Another Mental Health Strategy project is a new patient client satisfaction and needs assessment survey. LAO partnered with the Empowerment Council and with Shift Health, which is a group that has expertise in conducting patient surveys.

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

  • The committee is interested in following uptake for the mental health appeals program. LAO will provide updated statistics on use of the program in spring 2017.

  • Members support LAO’s focus on training. The committee would like to see the training rolled out in other areas of law, including family law, immigration and refugee law, and clinic law. Members of the private bar would be interested in assisting with this initiative.

  • It was reported that certificates for the mental health appeals program are being issued as criminal certificates, which creates a barrier for civil lawyers acknowledging these certificates. The appeal certificates are being issued manually at this early stage of the program, and these issues may be resolves as the program moves towards full implementation.

  • It was noted that mental health practice is a crossover area. Lawyers on the criminal law panel receive tier increases reflecting their experience and expertise, but lawyers who work in mental health, regardless of their expertise in the area, can be placed at a disadvantage in terms of eligibility for the higher payment rate.

  • Information on who to call to access legal advice is sporadic at best for Form 1 (psychiatric assessment) clients. It would be good if there was access to summary legal advice for these clients, perhaps through the Brydges telephone duty counsel hotline.

  • On September 13, 2016, the Ontario Court of Appeal released a decision upholding the constitutionality of involuntary committal for non-compliance with a Community Treatment Order under Brian’s Law. It is possible that leave to appeal to the Supreme Court of Canada may be sought.

  • Information was provided that Youthdale in Toronto has applied to become a Schedule 1 inpatient facility, under the Mental Health Act, for youth aged 16-18. This may occur as early as November 2016.

5. Action items

  1. LAO will provide updated statistics on cases in the mental health appeals program at the spring 2017 meeting.

  2. LAO will follow up on whether it may be possible to make telephone summary legal advice available to Form 1 clients, perhaps through its Brydges duty counsel hotline service.

  3. LAO will look into the issue of whether its lawyer tier rates disadvantage lawyers who do mental health work.

6. Other business

None raised