Speaker's Corner: Denial by process hinders service to people with mental-health issues

Innumerable reports document the disproportionate incarceration of people who live with severe mental-health and addictions issues. In essence, the provincial detention centres have become a replacement for the residential psychiatric hospitals.

As these individuals cycle through incarceration, their health often deteriorates and their behaviour becomes more chaotic. This makes their lives even more difficult and increases costs to the public. As a legal community, we need to ask why this keeps happening.

Part of the answer relates to the failure of the health and justice systems to accommodate the disabilities of these individuals. It’s a principle of Canadian democracy that everyone should be able to access public services.

Although most public buildings have wheelchair ramps and elevators, very few institutions have considered the barriers to access of individuals who live with severe perceptual and cognitive impairments.

As a lawyer, my practice focuses on providing services to clients with severe mental-health and addictions issues. My clients live with multiple layers of thought disorders.

These include significant problems with short-term memory loss, limited ability to concentrate or maintain thought, and profound distractibility. Most have been the victims of sexual and physical abuse. They’re often fearful of both authority and any form of public scrutiny.

The overwhelming majority began to overuse intoxicants before they were 13 years old as they tried to get some relief from the grief and rage that echoes in the mind. By their mid-40s, they live with both mental-health issues and the secondary addictions.

As a result of these disabilities, they often have trouble remembering dates, times, and appointments. Most have been arrested numerous times for various forms of impulse control behaviours ranging from street fights to retail shoplifting.

Their criminal records are also replete with several failures to attend court, failure to comply with court orders, and breaches of probation. Although these clients should be receiving disability support, very few can complete the application process without help.

As a result of their inability to attend appointments, my clients are unable to work with many agencies. Therefore, they’re commonly unable to work with family physicians or legal aid clinics and regularly breach conditions related to probation and bail reporting.

Many have difficulty interacting appropriately in public. Very few have bank accounts and most don’t have e-mail addresses or phones. By their mid-40s, they’ve cycled through hospitals and jails for most of their lives.

The dominant legal paradigm presumes cognitive ability. Every step of the justice system presumes that an individual will show up somewhere without assistance.

There’s also a presumption that if someone wants legal assistance, they’ll ask. This assumes that the person understands that it’s possible to influence the outcome.

We also presume that someone is either wholly independent or completely dependent. However, the reality is that many people are somewhere in between.

Clients with severe cognitive disabilities, including those with mental-health and addictions issues, often have limited interactions with anyone or any institution beyond their life on the street.

Most of these clients don’t qualify for bail because they have no sureties and aren’t eligible for the provincial bail supervision program since they have repeated convictions for failures to attend everything. Therefore, they stay in jail. It takes a long time to get a trial.

As a result, a very large portion of these clients plead guilty to get out of jail. It’s not unreasonable to choose a three-week sentence instead of waiting in custody for months for a trial.

Moreover, the overwhelming majority of these clients don’t have representation in part because of their inability to negotiate the administrative requirements of legal aid and also because many lawyers don’t want to work with clients with serious mental-health and addictions issues.

However, even when they have representation, the resolution of their cases too often involves court orders and probations they can’t maintain. A person who has difficulty remembering to wash and has a history of an inability to attend appointments isn’t going to be able to maintain a reporting obligation.

Someone who has been an alcoholic for 40 years is unlikely to abstain from alcohol.
The way legal aid organizes itself can be a hindrance to these clients’ access to justice. While in custody, a series of duty counsel lawyers will interview them for minutes at a time.

Most of these clients, however, are deeply mistrustful of strangers and people in authority. The duty counsel system involves an immediate triage evaluation. Duty counsel lawyers see hundreds of people a week. They should have time for more than a triage relationship.

Legal aid also makes a distinction between criminal law and poverty law. As a result, lawyers working to resolve the charges rarely consider trying to influence the factors that gave rise to the charges, particularly the lack of money and housing.

In addition, the legal clinic system presumes that people understand that someone might help them if they go to a clinic. However, this also requires them to go to the clinic, wait to speak to someone, and keep appointments. These presumptions discriminate against clients with perceptual and cognitive impairments.

Another layer of discriminatory barriers occurs in Legal Aid Ontario’s phone application process. In addition to presuming that people understand that they might be eligible for assistance, the application system assumes the ability to use the telephone and the cognitive focus to be able to remain on the line, push the right buttons, and answer strangers’ questions.

The system also presumes someone has an address and the ability to send forms by mail or fax. In my opinion, this is akin to requiring a paraplegic to climb stairs in order to apply for assistance.

The legal community, including the attorney general, judges, agencies, defence counsel, and legal aid, have a duty to accommodate our clients’ disabilities. However, the legal community rarely addresses these issues.

The Ministry of Health funds mobile health teams and street nurses. Ontario Works has established a project that assists homeless clients with applying for disability benefits. But the Ministry of the Attorney General hasn’t explored alternative service-delivery models.

None of Ontario’s law schools or continuing legal education programs provide instruction on how to accommodate clients’ cognitive and perceptual impairments nor do they offer training on how a lawyer should consider those issues when handling individual cases.

A group of dedicated lawyers have spent years desperately trying to save clients from suffering as a result of denial by process. However, as a legal community, we haven’t collectively examined how our own policies and procedures may discriminate against clients.

If we can acknowledge the legitimacy of clients’ impairments, we should be able to consider how we can accommodate those disabilities in the provision of services.

Sarah Shartal is a lawyer at Roach Schwartz & Associates in Toronto.

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