An Analysis of Bill 205: Advocate for Persons with Disabilities
Bill 205: Advocate for Persons with Disabilities Act
Proposed Amendments and Review of Limitations
It is the considered opinion of Inclusion Alberta that for ‘Bill 205: Advocate for Persons with Disabilities Act’ to be effective and meaningful it must be amended and its inherent limitations understood. We appreciate having had the opportunity to discuss some of our suggestions and concerns with MLA, Sandra Jensen, who introduced the Bill and her willingness to thoughtfully consider a number of our points. In addition, we appreciate the interest of other MLAs, their respective Parties and their consideration of possible Amendments to strengthen the Act.
We believe, to be effective BILL 205, should be amended to ensure:
- there is sufficient independence and power for the Advocate to make a valued and positive difference, which would require the Advocate to be situated within the Legislative Assembly and not a ministry,
- the Advocate’s actions ensure equality and equity for persons with disabilities relative to Albertans without disabilities,
- the Act identifies which activities the Advocate must engage in and which activities are optional,
- the Advocate is guided by the principles of community inclusion as articulated in the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD); and
- the Advocate, as in keeping with the title of the proposed Act, represents all individuals with disabilities, including their families, regardless of age or disability or where their interest lies with respect to government ministries, programs or funding.
In our view individuals with disabilities as Albertans and citizens are entitled and due the proper consideration of its government and Legislature and as such an Act as important as that of an Advocate for Persons with Disabilities, ought to have been brought forward by the Government and only after extensive consultation with the disability community. This approach would more likely have ensured the development of an Advocate’s office for Persons with Disabilities had the authority and independence to be an effective voice for people with disabilities. Plus, this approach would have more directly reflected the Government’s commitment to persons with disabilities. Since this analysis was completed it is our understanding that as of today May 17, 2017 Bill 205 will be moved from a Private Member’s Bill to become a government Bill. While we support this decision, we wish to reiterate our desire to see the government fully consult with the disability community on how an Advocate for Persons with Disabilities Act can be best structured to ensure the office is both independent, supportive of inclusion as a means to equality and equity of life outcomes to Albertans without disabilities and effective.
While the efforts of MLAs through Private Members’ Bills, are appreciated, it remains deeply disappointing that the interests of persons with disabilities are not on this Government’s agenda. In this context, a strong and independent Advocate is even more needed in contrast to the some of the weaknesses inherent in Bill 205, however well intentioned.
While MLA Jensen is to be commended for trying to make up for a Government limitation, this Bill does not make up for a lack of Government commitment, particularly given the challenges individuals with disabilities face in securing their rightful place among all Albertans. Our apprehension is that given the Government’s failure to act in providing a comprehensive overall vision and plan for inclusion across disability and the lifespan, with commensurate actions and funding, this Bill may be used as a means of Government claiming to have acted when that is clearly not the case. Worse yet, individuals with disabilities and their families may incorrectly assume an Advocate’s office will have the power and authority to offset the lack of a comprehensive approach and/or the lack of adequate funding and commitment from a government.
A) An Independent Advocate Answerable to the Legislature.
As currently written, Bill 205 would not provide the office of the Advocate with the power and independence needed to be truly effective. The Advocate, under Bill 205, would report to a Minister and as such would be subject to the authority and direction of a Minister. Currently, this is likely to be the Ministry of Community and Social Services. This itself raises concerns. Every few years governments have moved responsibilities for persons with disabilities to different departments and/or restructured departments. This not only means the Advocate might be moved from time to time but the Advocate’s role and responsibilities could be altered by overarching government decisions as to which programs or responsibilities now fall within the ministry where the Advocate is located.
In contrast, the Office of the Child and Youth Advocate sits within the Legislative Assembly Office and as such its reports, recommendations and investigations are not subject to Ministerial approval or oversight. The Child and Youth Advocate reports independently and directly to the Legislature which would not be the case with respect to the Advocate for Persons with Disabilities. Even with the power and independence entrusted within the office of the Child and Youth Advocate, the Auditor General has called for the Child and Youth Advocate’s power and autonomy to be increased. In addition, the Alberta Privacy Commissioner, which also has more power than that proposed for the Advocate, recently released a report on the government’s resistance to releasing information. When these more powerful and autonomous advocates have challenges in being heard and effective, it does not bode well to create an new Advocate office for Persons with Disabilities with far more limited autonomy and authority.
We have been told that an independent Advocate office would be far more expensive than what would be required for an Advocate within the Ministry of Community and Social Services. It is our position that whatever limited funds are allocated for the initial creation of an Advocate for Persons with Disabilities, these same funds would be far better expended in the creation of an independent Advocate answerable only to the Legislature. From this position of strength the Advocate’s office would be in a better position for growth and development. If there is a commitment to the creation of an Advocate office and to persons with disabilities, why must the disability community accept a cheaper version of a less effective Advocate?
An Advocate, particularly one within a ministry would be required to answer to that ministry first and people with disabilities and their families second.
At a time when Government has no disability agenda, no evident plan or action strategy to improve the lives of Albertans with disabilities; when it provides flat line funding equivalent to the past year’s expenditures; when it only claims to protect the vulnerable but does little to recognize and facilitate the contributions of people with disabilities to Alberta; and when it limits the power of collaborative and promising efforts by not engaging, for example, the developmental disabilities community in taking action on the Safety Standards recommendations or in the planning to replace the Supports Intensity Scale (SIS); when for over 18 months it has not held a Persons with Developmental Disabilities Advisory Committee meeting and when it has yet to strengthen or create an effective Premier’s Council on the Status of Persons with Disabilities; continues to fail to provide Persons with Developmental Disabilities support and funding for First Nations; still allows children with disabilities to be placed and even locked in isolation rooms in schools; fails to ensure adequate supports for families with children with disabilities on reserves is taken up thus reducing the number of children with disabilities in the child welfare system; then relying on a Government appointed Advocate within a ministry with limited power and autonomy and no clear direction, will likely create false hope and promise regardless of how well intentioned. In fact, it may be a dangerous development if the Act only creates the illusion of advocacy; when none may actually exist. As currently proposed the Advocate is, in effect, a government employee within a ministry – not a particularly strong position from which to independently advocate and represent the interests of persons with disabilities.
Why should Albertans with disabilities have to rely on an Advocate whose office would lack the authority and independence to effectively represent their interests, particularly when other more powerful Advocacy offices within the Legislative Assembly and government ministries have publicly reported on their current limited authority and capacity? At the very least an Advocate for Persons with Disabilities should have the comparable autonomy and authority vested, for example, in the Office of the Child and Youth Advocate.
B) Overarching Direction.
Bill 205 provides no clarity or direction with respect to the values or principles that should govern the Advocate. An Advocate for Persons with Disabilities cannot be effective if the Advocate were to take up every cause or individual circumstance without regard for coherency, direction and overall purpose. That is, individuals with disabilities can have contradictory interests relative to each other and without a coherent direction an Advocate would be ineffectual and even contradictory in their advocacy. An Advocate, without a governing set of principles, could simply act on their own belief system or if restrained by a ministry, only in accordance with that ministry’s interests.
It is our recommendation that the principles enshrined in the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) provide the essential values-based direction for the Advocate for Persons with Disabilities and that this be incorporated into the preamble and body of the Act. In this regard, the actions of the Advocate can be evaluated with respect to advances or not relative to the UNCRPD.
C) Role and Responsibilities.
Bill 205 stipulates that the Advocate may carry out at least 6 functions with allowance for future functions to be determined:
In carrying out the role of the Advocate under subsection (1), the Advocate may
(a) identify and study issues of concern to persons with disabilities and recommend action where appropriate;
(b) review programs and policies affecting persons with disabilities;
(c) participate in processes in which decisions are made about persons with disabilities;
(d) promote the rights, interests and well-being of persons with disabilities through public education;
(e) provide information and advice to the Government with respect to any matter relating to the rights, interests and well-being of persons with disabilities;
(f) assist individuals who are having difficulty accessing services and related programs for persons with disabilities, including directing them to an appropriate resource, person or organization;
(g) perform any other function prescribed in the regulations.
The Act does not stipulate what the Advocate must do and provides for no specific powers to be accorded the Advocate.
The Act does not define persons with disabilities but as the position is likely to lie in the Ministry of Community and Social Services, the Advocate’s responsibilities might be limited to persons with disabilities within the range of programs and funding of that Department. For example, now that the Office of the Public Guardian and Trusteeship (OPGT) has been moved to the Ministry of Justice and Solicitor General, it is conceivable the Advocate for Persons with Disabilities might not have the authority or purview to look in to matters related to the OPGT. As Community and Social Services still utilizes, however improperly, an IQ measure for eligibility for supports for adults with disabilities, those falling outside of this eligibility criteria might not be able to access the services of the Advocate. The Ministry of Community and Social Services currently has responsibility for children with disabilities and their families and adults with developmental disabilities, yet it is not clear the Advocate’s responsibilities would include children with disabilities and their families, as we believe it should. There are many other examples of issues and needs related to children and adults with disabilities and their families that cut across many government departments and programs (e.g., education, health, housing, justice, etc.).
It is our recommendation that the Advocate should be independent and empowered with the authority to represent the interests of all persons with disabilities and their families irrespective of disability, age or responsible government ministry.
It would be within the power of a Minister responsible for the Advocate to determine which of the 6 activities the Advocate is to engage in. As such, the Advocate may be directed to take up one or more activities which are least likely to challenge government or further the interests of Albertans with disabilities. For example, it is a well-established fact that public education is one of the least effective means of advancing rights. Yet, under Bill 205 this is all the Advocate might be directed to do and still be in compliance with the proposed legislation. Further a Minister may limit the Advocate from taking on other responsibilities that might, for example, result in embarrassment to the very Minister to whom the Advocate reports. Or a Minister or the Advocate might state given limited resources they cannot assume certain responsibilities even those these are the issues most important to individuals with disabilities and thus restrict themselves to less important issues.
It is our position that some of the activities of the Advocate can be optional but that the Bill needs to specify which functions of the Advocate are not optional.
The following should be required of the Advocate:
(a) identify and study issues of concern to persons with disabilities and recommend action where appropriate;
(b) review programs and policies affecting persons with disabilities;
(c) provide information and advice to the Government with respect to any matter relating to the rights, interests and well-being of persons with disabilities;
We believe these required responsibilities would not tie the hands of the Advocate unnecessarily but rather ensure certain responsibilities are carried out, leaving flexibility for other responsibilities should the office have the funding and resources needed. However, with limited resources, we want to ensure the Advocate must, at minimum, take on the responsibilities most likely to benefit individuals with disabilities.
Some might argue that one of the required responsibilities ought to be individual advocacy. It is our position that the Advocate as a resource to the disability community would be far more effective at the systemic level than the individual level. Individual examples must inform the systemic issues but addressing individual issues will not result in needed systemic change. Further, as there is and likely always will be, very large numbers of individuals needing personal advocacy, the Advocate for Persons with Disabilities would be consumed by demand and thus lack the time and resources to address the systemic issues that could result in the need for less individual advocacy.
There is no right to belonging, to friendships, a true home of one’s own or employment; to name only a few. Having the possibility of a meaningful life filled with friends and a sense of belonging, as well as opportunities for employment and a real home, requires a government committed to social justice for people with disabilities and a willingness to invest in community, people with disabilities and their families. Such a commitment is not going to be forthcoming on the basis of the appointment of an Advocate. The passage of this Bill must not be seen as a as adequate response to what is truly required of a government and Legislature that should be committed equally and equitably to all Albertans.
The Act requires, although only after the first year (an unfortunate limitation) that the Advocate submit a report to the Legislature on the Advocate’s effectiveness. It is not clear if this report would first have to be cleared by the responsible Minister, which we would recommend otherwise. In turn the report must be referred to a committee of the Legislature for review.
After the second year, Bill 205 only requires the Advocate is to submit an annual report to the Minister not the Legislature and which only summarizes the Advocates activities, not necessarily its effectiveness. We submit there should be annual public report on Alberta’s state of affairs in regards to persons with disabilities including factual evidence demonstrating unequivocally how the interests of individuals with disabilities and their families has been furthered by the Advocate.
It is our recommendation that there be annual reports on the Advocate’s effectiveness and that these reports, in addition to be placed before the Legislature, be completed, reviewed and acted upon in consultation with the disability community.
In effect, the initial proposal for an Advocate for Persons with Disabilities is a million dollar investment with no promised or measurable outcomes, an unclear mandate as to who is represented, across what domains of life and with a notable lack of autonomy and power. Bill 205 has support because it is clearly well intentioned, Albertans recognize the need for advocacy given the marginalization and devaluation of individuals with disabilities and the term “Advocate” implies action and voice (irrespective of the fact there are advocates for all kinds of actions detrimental to the interest of persons with disabilities, their families and communities). However, these positive attributes must not be perceived as sufficient but a reasonable starting point for improving Bill 205.
Many of the unknowns, it may be argued, will be addressed by the establishment of Regulations. However, Regulations are not subject to a public process. As such the disability community may have little opportunity, if any, to provide input into the Regulations. If an Act is weak and ineffectual, this is unlikely to be substantively remedied by Regulations. It remains our view that strengthening the Act to the maximum degree would best serve the disability community.
Once again the disability community is being asked to be appreciative of a well-intentioned gesture when it has been offered so little by way of substantive access to a quality of life comparable to Albertans without disabilities. In the latest Speech from the Throne and Budget Speech there was next to no advancement of the interests of persons with disabilities. Many other initiatives were announced, funded and launched but the disability community and its aspirations were fundamentally ignored or forgotten.
There are individuals with disabilities who lack access to advocacy but a government advocate, however empowered, will never be sufficient to meet their personal advocacy needs. An advocate within government should be a complement to strengthening the disability community’s own capacity for advocacy at the individual and family level. When existing advocacy avenues from Advisory Committees to the Premier’s Council on the Status of Persons with Disabilities (which does not report to the Premier) have been disempowered or disengaged, it is difficult to believe the provision of a government Advocate for Persons with Disabilities will make a needed difference. The current lack of responsiveness and engagement of the disability community while proposing a government appointed Advocate might be construed as a lack of respect for the autonomous voice of the disability community.
If Government and Legislators want to ensure Albertans with disabilities are equally valued there needs to be legislation, policies and funding for meaningful inclusion with a commensurate action plan, informed by the disability community’s advocacy, to ensure equity. In this context, then an Advocate for Persons with Disabilities would have far more credibility and likely beneficial outcomes beyond that of a well-intentioned gesture.
Bill 205 to establish an Advocate for Persons with Disabilities, at the very least, must be substantially amended for the Advocate to have the needed autonomy and authority to “speak truth to power” and make a positive and meaningful difference in the pursuit of fully inclusive lives. To the degree this is not forthcoming we will continue to advocate for strengthening the Act, engagement of the disability community by government and the development of a comprehensive plan with appropriate funding to advance the inclusion of individuals with disabilities in all aspects of Alberta life.
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