Institutionalization as a Form of Discrimination

  • September 24, 2014
  • BakerLaw

Too often, people with disabilities are forced to move into an institution in order to receive the health care they require. These institutions are isolated from the community, and deprive many people with disabilities of the ability to participate in public and community life.

In many cases, this care could be provided in the community, rather than in an institution. As recently reported by the CBC, many young people with developmental disabilities are being forced to move into nursing homes because the care they require is not being made available in their communities (link to article).

A recently released StatsCan study (link to study) reported that 792,000 Canadians over the age of 15 did not receive the in-home care they needed in 2012. This number includes 461,000 people who needed in-home care, but did not receive any. Not receiving sufficient in-home care was associated with a higher risk of loneliness, stress, and sleeping problems.

Many disability rights organizations in Canada have recognized the harm of  institutionalization, and have signed on to the “Common Principles on the Inclusion of People with Disabilities in their Communities” (link to Principles). These Common Principles, which have been adopted by the Canadian Association for Community Living, People First of Canada and Community Living Ontario, recognize that the unjustified segregation of individuals with disabilities is discriminatory, and call on the government to develop viable care in the community.

To date, the following organizations have endorsed these Common Principles:

  • Inclusion BC
  • Yukon Association for Community Living
  • Nunavummi Disabilities Makinnasuaqtlit Society
  • Nova Society Association for Community Living
  • Newfoundland and Labrador Association for Community Living
  • PEI Association for Community Living Inc.
  • Enfield Association for Community Living
  • President of People First of Ontario
  • Defence for Children International – Canada
  • Hamilton Family Health Network
  • People First Peterborough Chapter
  • People First of Saskatchewan
  • People First Society of Yukon
  • People First Swift Current Chapter
  • People First of Newfoundland
  • People First Nova Scotia
  • Adult Protective Service Workers of Ontario
  • Ontario New Democratic Party, disABILITY Rights Committee
    CACL, Amherst and District Branch
  • People First of New Brunswick
  • Windsor-Essex Brokerage for Personal Supports
  • Community Living Welland Pelham

If your organization is interested in endorsing these Common Principles, please contact Don Gallant at dgallant@nl.rogers.com.

Despite this growing social movement, Canadian lawmakers and courts have not recognized the serious harm that results from unnecessarily institutionalizing people with disabilities. This is a significant gap in the development of Canada’s human rights law.

The United States has recognized the harm caused by needless institutionalization for over a decade. In the landmark 1999 decision Olmstead v. L. C. (link to decision), the U.S. Supreme Court held that “unjustified institutional isolation of persons with disabilities is a form of discrimination.” In coming to this conclusion, the Court relied on the Americans with Disabilities Act, which prohibits discrimination in institutionalization and requires that programs and services be delivered in “the most integrated setting appropriate.”

The Olmstead decision has been used widely in the United States to negotiate settlements with various states to ensure that specific measures are taken to prevent the unnecessary institutionalization of those with disabilities. For more information about these settlements, visit the Bazelon Centre’s website (link to website)

Unfortunately, Canada still fails to provide the community support that is required to avoid needless institutionalization. Bakerlaw is working to bring Canada in line with the Olmstead decision and ensure that services are provided in the community so that those with disabilities are not required to live in institutions in order to receive health care.

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