Submission from the Schizophrenia Society of Ontario on the New National Immigration Detention Framework

Transcription

1 Submissin frm the Schizphrenia Sciety f Ontari n the New Natinal Immigratin Detentin Framewrk The Schizphrenia Sciety f Ontari (SSO) applauds the Gvernment f Canada s cmmitment t develping a new Natinal Immigratin Detentin Framewrk that puts frnt and centre the mental and physical health and well-being f peple in immigratin detentin as a primary cnsideratin alng with the safety and security f Canadians. We welcme the pprtunity t participate in the Canada Brder Services Agency's (CBSA) New Natinal Immigratin Detentin Framewrk cnsultatins and lk frward t the develpment f this wrk. Abut SSO SSO is a charitable health rganizatin that supprts individuals, families, caregivers and cmmunities affected by schizphrenia and psychsis acrss the prvince. Fr ver 30 years we have made psitive changes in the lives f peple affected by schizphrenia, by building supprtive cmmunities, thrugh services and educatin, advcating fr system change and cnducting research int the psychscial factrs that directly affect mental illness. Our rganizatin has a lng histry f supprting peple with mental health issues 1 wh are at risk f deprtatin n an individual and case-by-case basis. Thrugh this wrk it became clear that the current immigratin system is nt equipped t deal with the cmplex mental health needs f newcmer cmmunities, refugees, immigrants and ther nn-citizen grups. T further ur wrk in this area, SSO initiated an extensive plicy research initiative including a review f the literature and relevant Canadian legislatin, as well as cnsultatins with key stakehlders within the mental health, legal, and settlement/immigratin sectrs which culminated int a 2010 discussin paper entitled, Duble Jepardy: Deprtatin f the Criminalized Mentally Ill. Althugh a full accunt f the findings frm this research is beynd the scpe f this submissin, it is imprtant t nte a few highlights frm the paper. One imprtant cnsideratin is that individuals with mental health issues wh lack mental health services and supprts 2 cme int disprprtinate cntact with the law cmpared t the general ppulatin fr several reasns. These include, but are nt limited t, simply being mre visible in the cmmunity due t exhibiting behaviurs related t ne s symptms; 1 In this submissin, the term mental health issues refers t symptms and cnditins which may take the frm f changes in thinking, md r behaviur, r sme cmbinatin f all three, that impact a persn s ability t functin effectively ver a perid f time and may include a frmal diagnsis f a mental illness. This term was chsen because it is the clsest in alignment with the language used by CBSA s New Natinal Immigratin Detentin Framewrk. It shuld be nted that nt all individuals living with a mental health issue wuld identify with this label. 2 Due t SSO s scpe as a prvincial rganizatin, the issues discussed in this submissin related t the mental health sectr and t the mental health system apply primarily t the prvince f Ontari. Page 1 f 10

2 r fr nn-vilent crimes which are directly r indirectly related t ne s mental health issue, such as causing a disturbance r mischief. Further cmpunding this criminalizatin f mental illness is the fact that the Immigratin and Refugee Prtectin Act (IRPA) renders any nn-citizen cnvicted f a certain level f ffence inadmissible t Canada n the grunds f criminality. Given that peple with mental health issues cme int disprprtinate cntact with the law, these inadmissibility prvisins can be said t have a disprprtinate impact n nn-citizens with mental health issues, putting this grup at even greater risk f deprtatin and, by extensin, f being placed in immigratin detentin. The paper als recgnizes the unique needs f peple with mental health issues underging immigratin r deprtatin prceedings, citing research that immigrant and newcmer grups are at increased risk f mental health issues, such as psychsis and depressin, cmpared t the general ppulatin. This culd in part be related t stress and islatin resulting frm the migratry experience and the settlement prcess 3. In additin, the paper pints ut that current enfrcement plicies place peple with mental health issues at greater risk f immigratin detentin, which has been shwn t negatively impact mental health 4,5,6. Fr instance, a 2013 study cited in the paper, We Have N Rights fund that althugh there was n significant differences in trauma expsure acrss study participants held in the Trnt and Mntreal Immigratin Hlding Centres (IHC) cmpared t participants wh were nt detained, after 31 days in detentin, twice as many f the detainees had clinical Pst Traumatic Stress Disrder and ver 75 per cent were clinically depressed, cmpared t 52 per cent f nn-detainees. Peple detained in prvincial facilities d nt fair better. Crrectinal facilities d nt have the capacity t supprt peple with cmplex mental health needs and incarceratin itself can exacerbate stress and symptms and impede recvery 7. As a result f this wrk, SSO fstered wrking relatinships and partnerships, including prviding cnsultatins and supprt letters t immigratin lawyers representing individuals with mental health issues, as well as a multi-year partnership with the Immigratin and Refugee Bard (IRB) t prvide Designated Representative services t any persn deemed t require mental health accmmdatin supprt fr immigratin r refugee hearings. These cases are ften cmplex, with intersecting mental health, justice and immigratin issues and SSO is ne f few mental health rganizatins in Ontari prviding this service. The challenges f supprting a persn as a designated representative, including 3 Grss,H. & van Grll, P. (2015). We have n rights arbitrary imprisnment and cruel treatment f migrants with mental health issues in Canada. Retrieved frm the Internatinal Human Rights Prgram, University f Trnt Faculty f Law website 15.pdf 4 Pauline J. McLughlin and Megan J. Warin Crrsive places, inhuman spaces: Mental health in Australian immigratin detentin Health & Place 14 n. 2 (2008): Peter Hallas, Anne R. Hansen, Mia A. Staehr, Ebbe Munk-Andersen and Henrik L. Jrgensen, Length f stay in asylum centres and mental health in asylum seekers: A retrspective study frm Denmark BMC Public Health 7 (2007): Katy Rbjant, Rita Hassan and Crnelius Katna, Mental health implicatins f detaining asylum seekers: Systematic review The British Jurnal f Psychiatry 194 (2009): Reprt f the Standing Cmmittee n Public Safety and Natinal Security. (2010). Mental health and drug and alchl addictin in the federal crrectin system. Page 2 f 10

3 accessing effective legal representatin, cnnecting t mental health and addictins services and accmmdating language barriers are further cmpunded when a persn is in detentin, raising cncerns f fairness and due prcess fr immigratin detainees. This submissin is infrmed by ur extensive wrk in this area and is structured accrding t the fur main tpics fr cnsultatin: infrastructure, alternatives t detentin, minrs in detentin and detainee health/mental health. Infrastructure As nted in the New Natinal Immigratin Detentin Framewrk Summary Reprt, under current IRPA legislatin and regulatins, CBSA fficers are authrized t detain a persn based n reasns such as: it is necessary t cmplete an examinatin; there are reasns t believe that the persn is inadmissible t Canada n grunds f security and a danger t the public; the persn is unlikely t appear fr an immigratin prceeding; and/r the persn is unable t satisfy the fficer f their identity. As mentined, these prvisins have a particular impact n individuals with mental health issues, whse mental health needs wuld likely be unmet r even exacerbated simply by virtue f being detained. The Framewrk Summary Reprt further highlights CBSA plicy which stipulates that, where safety r security is nt an issue, detentin is t be avided r cnsidered nly as a last resrt fr vulnerable individuals, including persns with mental health issues. If detentin is deemed t be necessary, it shuld be fr the shrtest time pssible and primarily fcused n supprting the remval f the persn. Althugh evidence suggests that detentin shuld nt be used fr persns with mental health issues and plicy states that detentin must be used as a last resrt, this psitin is cntradicted by an enfrcement philsphy which priritizes security ver health and well-being. In fact, the Immigratin, Refugees and Citizenship Canada Enfrcement Guidelines state that when determining whether a persn is a danger t the public, the instability f a persn assciated with mental imbalance at the time f examinatin may be a very imprtant indicatr in the assessment f the danger 8. The cnflicting message within this guideline results in a plicy which des little t prtect persns with mental health issues and in fact, can lead t detentin and the wrsening f their cnditin. Cnsidering that the immigratin detentin f peple with mental health issues cntinues t ccur, t mitigate the impact f detentin n this grup, imprvements t the infrastructure f detentin facilities are essential. Recmmendatins: End the transfer f peple with identified mental health issues t prvincial crrectinal facilities where the envirnment is typically stressful, punitive and ptentially unsafe 8 Immigratin, Refugees and Citizenship Canada. (2015). Enfrcement guideline 20. Detentin. Retrieved frm Page 3 f 10

4 (Alternatives t detentin fr peple with mental health needs are cnsidered in the crrespnding sectin in this submissin) Cnsider detentin as a last resrt fr all cases and ensure that it is used fr the shrtest time pssible and that peple are nt faced with additinal restrictins, such as placement in segregatin Cnsider the call fr an independent bdy/mbudsman, like the federal Office f the Crrectinal Investigatr, fr verseeing CBSA enfrcement practices and prviding a mechanism fr accuntability 9 Fr peple detained in prvincial facilities, ensure that recmmendatins frm the stakehlder rundtable discussins are implemented, including: Avid the c-mingling f criminal detainees with immigratin detainees in crrectinal facilities fr reasns including safety and mental health Amend existing laws t specify and define the factrs t be cnsidered when deciding t transfer a detainee t a prvincial facility; establish a clear plicy and transparent prcesses fr these transfers, including recrd-sharing t ensure cntinuity in care; and include pprtunities fr detainees t appeal decisins Prvide meeting rms fr nn-gvernmental rganizatins (NGO), including cmmunity mental health agencies, as well as fr designated representatives at prvincial facilities Ensure that immigratin detainees in prvincial facilities have at minimal the same level f access t services, prgrams and infrmatin (i.e., medical and mental health care, interpreters, NGOs, designated representatives, family visits, etc.) as thse held in IHCs r as ther inmates held in thse very facilities Ensure staff at prvincial facilities are infrmed and trained n the particularities f individuals detained fr immigratin purpses (administrative nt criminal) Fr peple wh are detained in an IHC, recmmendatins by stakehlders shuld be implemented and enfrced, including: Ensure that imprvements made t infrastructure d nt result in the increased use f immigratin detentin IHCs shuld be lcated clse t (r easily accessible by public transit) where scial services are available t facilitate access t supprts Infrastructure imprvements t IHCs shuld nt be mdeled after penal institutins IHCs shuld have space designated fr vulnerable peple and be separate frm thse with past histry f criminality Ensure that NGOs and designated representatives have access t a private rm t meet with detainees 9 Grss,H. & van Grll, P. (2015). Page 4 f 10

5 Minrs in Detentin Althugh SSO is nt a child and yuth mental health rganizatin, we strngly supprt advcates wh call fr an end t the immigratin detentin f minrs. Cncerns raised by advcates abut the negative impact f detentin n children s mental health, including increased rates f distress, fear, anxiety and deteriratin f cgnitive, physical and emtinal functining 10, are especially cncerning. A Statement Against the Immigratin Detentin f Children 11 signed by ver 40 f Canada s leading medical, legal and human rights rganizatins stipulates that children shuld neither be detained nr separated frm their parents as a result f the detentin f their parents. The Statement highlights that by cntinuing the practice f the immigratin detentin f children, Canada is failing t meet natinal and internatinal legal bligatins. It further cites the United Natins (UN) High Cmmissiner fr Refugees cndemning the immigratin detentin f children; the UN Cmmittee n the Rights f the Child which has called n states t expeditiusly and cmpletely cease the detentin f children n the basis f their immigratin status ; and the UN Special Rapprteur n the Human Rights f Migrants wh has recently released a statement n the grwing prblem f immigratin detentin f migrant children. Recmmendatins: SSO supprts calls in the Statement fr: Ending the immigratin detentin f unaccmpanied minrs and children and families Immediately implementing cmmunity-based alternatives t immigratin detentin which enable minrs t remain with their parents r primary caregivers t prtect the best interests f children and children s right t liberty and family life In accrdance with stakehlder feedback, amend legislatin t prvide fr a designated representative t be assigned t a separated minr frm pint f first cntact with immigratin authrities and nt nly when they first appear in frnt f IRB Prvide training t designated representatives wrking with children and yuth regarding the immigratin prcess, cultural sensitivity and child and yuth mental health Alternatives t Detentin (ATD) In light f the inapprpriateness f placing peple with mental health issues in immigratin detentin, the expansin f available ATDs natinally is a welcme initiative. There are sme cnsideratins hwever that must be taken int accunt when cnsidering expanding ATDs fr peple with mental health issues. 10 A statement against the immigratin detentin f children. (endrsements updated January 24, 2017). Retrieved frm the Canadian Bar Assciatin website 2e17944abd Ibid. Page 5 f 10

6 The Internatinal Detentin Calitin pints ut that cmmn characteristics f successful ATDs include screening and assessment f individual cases; prviding case management, legal advice and ther resurces that supprt the individual t reslve their case; ensuring basic needs are met; and applying cnditins r limited restrictins when necessary 12. These factrs are especially imprtant fr vulnerable grups. The challenges experienced by peple with mental health issues in regard t current detentin release cnditins and stay f remval cnditins prvide helpful insight int sme f the cnsideratins that need t be taken int accunt when cnsidering the use f ATDs fr this grup. ATD cnditins SSO supprts the psitin f stakehlders wh pint ut that stricter cnditins shuld nt be impsed n peple wh underg alternatives t detentin. Fr peple with mental health issues, fr instance, it may be difficult t adhere t cnditins that are verly stringent, inflexible and fail t accunt fr the challenges faced by persns with cmplex mental health prblems. Reprting requirements impsed n peple released frm detentin including frequency and lcatin, fr example, d nt take int accunt access t transprtatin issues r cgnitive impairments which may impede a persn with mental health issues frm attending these appintments. Changes t vice reprting is an ideal alternative, and an effective slutin t help facilitate cmpliance; at the same time, fr smene with cmplex mental illness such as schizphrenia, the use f reprting requirements that include technlgy may be prblematic if they have the ptential f exacerbating certain symptms f psychsis which sme peple may experience, such as paranid delusins. Mrever, althugh ATDs shuld nt require the same extent f rules and restrictins as stay f remval cnditins, it is imprtant t acknwledge the ptential fr excessive expectatins that may be placed n smene as an alternative t detentin. Cnditins cmmnly placed n peple wh receive a stay n their deprtatin rder, fr example, include keep the peace and be f gd behaviur; refrain frm using alchl r illegal drugs, including marijuana; and cmply with treatment and medicatins. Such prvisins d nt accunt fr the realities f mental illness, including the likelihd f relapse, nr d they address cmplexities f c-mrbidities such as addictins, pverty and unstable envirnment. Even when the right cmbinatin f treatments is fund, individuals with mental health issues may experience severely limited access t treatments and services and may need extensive supprts t adhere t a treatment plan. Nn-status Canadians may have additinal challenges accessing such services because they d nt qualify fr prvincial health insurance plans and may experience difficulty accessing alternative healthcare cverage. Fr these reasns, each case must be lked at n an individual basis t make sure that ATD cnditins are apprpriate, feasible and accessible fr the persn n which they are impsed. Cnditins r 12 Internatinal Detentin Calitin. (2015). There are alternatives. A handbk fr preventing unnecessary immigratin detentin. Revised editin. Retrieved frm Page 6 f 10

7 requirements related t ATD shuld be cmmensurate with the risk psed by the individual, as highlighted by ther stakehlders, and must be realistic in terms f cnditins impsed n peple with mental health issues. Sme flexibility is necessary with regard t peple with mental health issues wh may als face cgnitive challenges in understanding the cnsequences f their actins, and fr whm relapse is a natural part f the recvery prcess. Access t cmmunity mental health services A further cnsideratin is that in rder t ensure public safety is prtected and/r that the individual will appear at their examinatin r hearing, the use f ATDs will likely require that the persn be extensively mnitred while in the cmmunity a requirement which is incmpatible with the philsphy f the mental health sectr and capacity f mst cmmunity mental health agencies. As bserved in ur Duble Jepardy paper, these agencies ffer their services n a vluntary basis; as such, they may be disinclined t take n a supervisry r mnitring rle and t reprt if the individual withdraws frm services. In additin, many cmmunity mental health rganizatins are incapable, due t intake prtcls, f taking n clients wh are currently in detentin, yet traditinally, peple will nt be released frm detentin until they are frmally accepted int a prgram 13. The ntable exceptin is the Trnt Bail Prgram-Immigratin Divisin, which prvides cmmunity-based supervisin fr individuals wh are detained and cannt be released under the traditinal frms f release. Recmmendatins: Invest in in-depth training f CBSA fficers and staff, IRB members, minister s cunsel and designated representatives n mental health, including persistent and cmplex mental illness such as schizphrenia, t expand understanding f the needs f peple with mental health issues, the availability f mental health services and supprts and the ways in which peple access these resurces Expand access t cmmunity-based mental health services t supprt peple in aviding detentin and/r being released frm detentin Effrts shuld be made with the cmmunity mental health sectr t remve barriers which impede the prvisin f service fr example, intake prtcls which require a face-t-face meeting befre a client is accepted int a prgram shuld be recnsidered Sme flexibility shuld be given with regard t individuals wh are in detentin, including allwing intake t ccur by phne r thrugh referral by anther mental health wrker wh the individual may have wrked with Exercise flexibility in terms f requirements related t ATDs by recgnizing that cnditins shuld be cmmensurate with the risk psed by the individuals; realistic in terms f the unique needs f peple with mental health issues; and apprpriate t each individual case 13 Key infrmant interview, June 3, Frm SSO. (2010). Duble jepardy: Deprtatin f the criminalized mentally ill. A discussin paper. Page 7 f 10

8 Prgrams which supprt ATDs shuld be funded. Such prgrams culd be mdelled n nes that already exist within the criminal justice system, where the needs and circumstances are similar, but adapted t reflect a nn-criminal fcus and apprach One example is Mental Health Curt Supprt prgrams, which were created t help facilitate curt diversin fr peple with mental illness. Staff in these prgrams are mandated t develp and implement curt diversin plans and cnnect clients with the necessary resurces t supprt their success in the cmmunity. These staff have a respnsibility t wrk clsely with clients t help them abide by their diversin plans, and can alert the curt if they have cncerns abut the individual. This prgram culd be mirrred in the immigratin cntext, with mental health supprt prgrams being created fr individuals n detentin releases Prgram mandates f Assertive Cmmunity Treatment (ACT) Teams and ther successful mdels f service shuld be re-examined with a view t expanding access t individuals n immigratin detentin releases Expand cmmunity bail prgrams which play bth an enfrcement and rehabilitative rle by prviding cmmunity-based supervisin t individuals wh wuld therwise be detained in custdy. The Trnt Bail Prgram Immigratin Divisin prvides this service t clients with mental health issues; hwever, it is the nly prgram f its kind in Canada. It is imprtant, hwever, t recgnize the legitimate cncerns f stakehlders, such as the Canadian Cuncil fr Refugees, wh have pinted ut that the Trnt Bail Prgram is designed alng a criminal justice system mdel. They pint ut that aspects f the prgram which reflect the criminal mdel, including nerus reprting requirements and the name f the prgram itself, are inapprpriate in terms f immigratin detentin and may cntribute t the real r perceived criminalizatin f migrants 14 Detainee Health/Mental Health As previusly mentined, detentin centres, including prvincial facilities, are nt adequately equipped t address the needs f persns with mental health issues. Medical staff and mental health services are limited, and crrectinal staff ften d nt have mental health training and are unqualified t address individuals with cmplex mental health needs. Often, individuals n immigratin hlds are placed in maximum security units r in slitary cnfinement, further limiting their access t treatment a practice which is cnsidered t be neither safe nr humane 15. The fact that the nature f immigratin prceedings ften results in indefinite detentin is additinally prblematic in terms f mental health. Again, research shws that even brief placement in detentin is assciated with increased psychiatric 14 Canadian Cuncil Fr Refugees. (2015). Alternatives t detentin: CCR cmments regarding the Trnt Bail Prgram. Retrieved frm 15 Office f the Crrectinal Investigatr, Annual Reprt f the Office f the Crrectinal Investigatr, (Trnt: OCI, 2009). Page 8 f 10

9 symptms 16 ; prlnged and indefinite immigratin detentin has been shwn t further increase rates f stress, anxiety and mental health deteriratin 17. Anther issue identified in the paper, Duble Jepardy, is that many psychiatrists d nt travel t detentin centres t cnduct assessments 18, r are nt permitted t enter the detentin centre, thus putting individuals being held in detentin at a clear disadvantage. Even cmmunity mental health prgrams that can prvide supprts, such as ACT teams, can be reluctant t visit clients in detentin r may nt be permitted entry 19 due t prcesses related t security at the institutin. In SSO s experience prviding designated representative supprt fr instance, visits with individuals wh are detained in prvincial facilities are permitted with the accmpaniment f the persn s legal cunsel; this can be prblematic in cases where there are delays in btaining cunsel and these visits may themselves be disrupted by security measures such as institutinal lck-dwns. Recmmendatins: Implement feedback frm stakehlders including: Imprve screening tls fr CBSA fficers t identify mental health issues as early as pssible; ensure that these tls are culturally apprpriate and adapted fr children and yuth; ensure apprpriate, timely assessment and fllw up by a mental health prfessinal fr peple wh are psitively screened; and supprt these peple in accessing needed mental health treatments, services and supprts Explre best practices and internatinal mdels in rder t amend existing laws and regulatins t create a rebuttable presumptin in favur f release after a fixed number f days f detentin and a prcess fr independent review f any detentin placements which exceed this limit Ensure timely mental health screening and assessment fr every persn placed in immigratin detentin in an IHC r prvincial facility as part f standard intake prcedure and at regular intervals thrughut their detentin: Screening shuld ccur immediately upn admissin t ensure that apprpriate fllw-up, including assessment and treatment, is initiated as sn as pssible; Timely assessment by a psychiatrist fr anyne screened psitively (the Canadian Psychiatric Assciatin has published wait-time benchmarks fr peple with serius mental illness, which can be used as a guide); Ensure timely access t culturally-apprpriate mental health care wherever a persn is detained (including cmmunity supprts, cunselling and spiritual supprts, family supprts and psychiatric and medical supprts) 16 Cleveland, J. & Russeau, C. (2013). Psychiatric symptms assciated with brief detentin f adult asylum seekers in Canada. Canadian Jurnal f Psychiatry, 58(7) di / Australian Human Rights Cmmissin. (2011). Immigratin detentin at Curtin. Retrieved frm 18 Key Infrmant interview, May 27, Frm SSO. (2010). Duble jepardy: Deprtatin f the criminalized mentally ill. A discussin paper. 19 Key infrmant interview, June 3, Frm SSO. (2010). Duble jepardy: Deprtatin f the criminalized mentally ill. A discussin paper. Page 9 f 10

10 Ensure immediate transfer f a detainee whse mental health is deterirating t a frensic hspital r a crrectinal treatment centre if release is unlikely Increase training fr CBSA fficers, crrectinal fficers and management, including: De-escalatin techniques; Training n mental health issues and anti-stigma that is develped and delivered in cnjunctin with peple with lived experience f mental health issues; Cmpassin, empathy and nn-vilent cmmunicatin skills-training; Cultural cmpetency training Establish a training infrastructure t sustain regular training fr current and new fficers and staff which includes regular frmal evaluatin t mnitr prgress and t identify gaps and make apprpriate amendments Prvide psychlgical and emtinal supprts fr CBSA fficers and crrectinal fficers thrugh peer supprt prgrams as well as thrugh prfessinal services, such as thse ffered by Emplyee Family Assistance Prgrams Ensure that supprt is prvided t peple released in the cmmunity, including access t effective legal aid (e.g., Legal Aid Ontari), mental health services and supprts, transprtatin and interpretatin services SSO appreciates the pprtunity t prvide feedback n the CBSA s New Natinal Immigratin Detentin Framewrk. We lk frward t wrking with the CBSA and the federal gvernment as the Framewrk is further develped. Fr further discussin, please cntact Erin Budreau, Manager f Plicy and Cmmunity Relatins, at ebudreau@schizphrenia.n.ca r x.255. Page 10 f 10