Important voices under-represented in new home and community care legislation | Anjanee Naidu
Tuesday, July 21, 2020 @ 2:51 PM | By Anjanee Naidu
This move by the Ontario government has stirred reactions of disapproval from advocates and individuals of the communities who will be impacted by the new provisions and regulations. In particular, the community of persons with disabilities will be negatively impacted by this new Act.
“The HCCSA had persons with disabilities as its focus ... and persons with disabilities are not at the centre of the new Act,” notes Dianne Wintermute, a lawyer at the ARCH Disability Law Centre. This change is significant because persons with disabilities consume these attendant services over the long term, as opposed to only a few days, weeks or months, and therefore have different needs from other communities who use home and community services.
Wintermute commented that the new Act, “conflates persons with disabilities with patients in acute care or rehabilitation centres, and the needs of these separate communities are really different.”
The Ontario government first introduced Bill 175 in late February, during the time when concerns about the COVID-19 pandemic began to rise. Despite the government’s focus on managing the pandemic, Bill 175 continued to rapidly move through to the Legislative Assembly after a second reading in March. Oral submissions were made to the Government Standing Committee on the Legislative Assembly between June 15-17, 2020. Submissions were made by organizations that support persons with disabilities, including ARCH Disability Law Centre, and persons with disabilities themselves on behalf of the communities who are directly impacted by this new legislation. The submissions included concerns about certain provisions of Bill 175, as well as suggestions towards creating a more inclusive legal framework for the consumers of home and community services.
These critical submissions, however, were ignored by the government and Bill 175 was passed on July 8, 2020, without any changes or amendments. The omission of these recommendations from the new legislation that would better support persons with disabilities is a disservice to this community of long-term consumers who rely on home and community supports and services in their daily lives.
The new Act shifts the Bill of Rights from legislation to regulation, a change that will negatively affect consumers of home and community services. “It is really rare that you would find the details of an Act within regulations ... regulations are subject to change by the cabinet, which means that they don’t have to go through a debate in the Legislative Assembly, and that in itself creates uncertainty among consumers,” Wintermute said.
There are no similar provisions to the Bill of Rights contained in the new legislation, in comparison to the Bill of Rights found within the previous HCCSA legislation. It is vital to include provisions in the legislation itself to provide safeguards for consumers who wish to exercise their rights and file a complaint about services or supports, especially where their rights under the Bill of Rights may have been violated. Shifting the Bill of Rights to regulation under the new Act threatens the transparency and oversight that is present in the legislative decision-making process. This shift would silence any input from relevant stakeholders and communities on changes that may be proposed to the regulations.
The Health Services Appeal and Review Board is the tribunal that currently hears appeals relating to home and community services. The new Act, however, does not expand the tribunal’s jurisdiction to allow for consumers to file complaints about the quality of services they receive at an independent tribunal. “What you’re left with is an internal appeal to the service provider, and so consumers are complaining to the service provider about the service provider’s services,” Wintermute said. This can negatively impact the quality of, or access to, the services that persons with disabilities use. The current internal appeal structure of the Health Services Appeal Board and the shift of the Bill of Rights from legislation to regulation raises concerns on whether the new Act takes into consideration the interests and priorities of all consumers, especially persons with disabilities.
Since the new Act was passed, the ARCH Disability Law Centre was given a short 10-day window that began on July 14, 2020, for submissions towards the new regulations proposed under the Act. “Now, there is a short turnaround time for commentary on the regulations, and the regulations are where the bulk of the detail of the Act will be found," Wintermute said. "Getting community input into the regulations will now be difficult because we only have 10 days to try and get our community’s concerns and issues addressed under these new regulations.”
Including the voices of persons with disabilities is critical in the creation of the new regulations. Wintermute noted that it is, “difficult to understand why the people who are going to be affected by these regulations aren’t going to have enough of a say in what these regulations will be.”
In recent months, the long-term care homes crisis has exemplified how the privatization of supports and services can give rise to adverse effects in the delivery of supports and services to consumers. Despite this knowledge, the Ontario government proceeded to adopt a more privatized structure for home and community service providers in the new Connecting People to Home and Community Care Act. The government claims that the provisions of the new Act will help to modernize home and community services through the implementation of features that include adaptable care co-ordination and flexibility in care planning. It is difficult, however, to know whether this push for modernization will come at the cost of consumer interests.
This new legislation will directly impact how persons with disabilities access the services that they use on a consistent basis, yet no significant efforts were made by the Ontario government to obtain and incorporate substantial feedback from this community in the drafting of the new Act and regulations. The question now remains as to whether the new regulations will adequately protect the rights and interests of all consumers.
Anjanee Naidu is a 3L Dual JD law student at the University of Windsor and the University of Detroit Mercy. She can be found on LinkedIn.
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