Chapter 3: Michael Bach – Canada

Speaker Bio

For over 25 years, Michael Bach (he/him) has undertaken research and development in Canada and internationally on ways to advance the full inclusion and human rights of persons with disabilities. His research and publications cover disability theory, policy and practice in a range of areas including education, employment, and funding and delivery of community-based services. Michael’s particular area of expertise is in legal capacity of people with intellectual disabilities.

Michael holds a Ph. D. in Sociology and Equity Studies from the University of Toronto’s Ontario Institute for Studies in Education, where his dissertation focused on developing a more inclusive theory of personhood on which to challenge the usual equation between intellectual disability and legal incapacity. Michael is currently an Open Society Foundations Fellow, continuing his international comparative research on the right to legal capacity for people with significant intellectual and cognitive disabilities.

Background

Current state of Article 12 in Canada

Canada ratified the UN Convention on the Rights of Persons with Disabilities (UNCRPD) in 2010 and initially played a leading role in advocating for the inclusion of Article 12. However, despite early progress, full implementation of Article 12 has largely stalled in Canada. Notably, Canada’s ratification of the CRPD included an interpretive declaration and conditional reservation, which allow for substitute decision-making under specific circumstances (Inclusion Canada, 2022).

It’s crucial to recognize that civil rights and, consequently, the right to legal capacity, are primarily regulated at the provincial and territorial levels in Canada (Inclusion Canada, 2022). Consequently, some provinces and territories have not established the necessary support systems to effectively implement supported decision-making, resulting in tens of thousands of disabled Canadians still living under guardianship. For instance, in Ontario alone, approximately 17,000 individuals are subject to guardianship arrangements (The Coalition on Alternatives to Guardianship, 2017). As a result, despite the thirteen years that have passed since Canada’s ratification of the CRPD, guardianship remains the norm rather than the exception in many provinces.

Current State of Activism in Canada

Advocacy for supported decision-making and the implementation of Article 12 remains an ongoing effort in Ontario and various other Canadian provinces. Numerous organizations, including Inclusion Canada, IRIS, and Community Living Ontario, among others, are actively advancing this cause through legal actions and research initiatives.

One example is the Right to Decide project, initiated in 2019 by Community Living Ontario. In collaboration with the IRIS Institute and Pooran Law, this multi-year project established six sites across Ontario to explore the practice and implications of Supported Decision Making at the community level (Planning Network, n.d.).

Video Presentation

Click here to read the Transforming the Disabling/Maddening State – Michael Bach video transcript.

Key Points

• Advocacy Across Three Levels: Disability rights advocates operate on three fronts: pushing for legal reform, changing community practices, and equipping individuals with tools to advocate for their rights in any situation.

• Relational Autonomy and Interdependence: Unlike Colombia, Canada does not commonly recognize concepts of relational autonomy and interdependence in its legal framework.

• Legal Similarities Between New Brunswick and Colombia: The legislation in New Brunswick shares similarities with that of Colombia, acknowledging the need for decision-making support for individuals with significant intellectual and cognitive disabilities. The objective is to facilitate this support through legal reform, with a focus on interpreting their will and preferences with special support arrangements as the initial step.

• Balancing Concerns around Safety: “We acknowledge that even when someone experiences a psychotic state, it may express something significant to them. However, situations involving a threat of violence must be addressed.” – Michael Bach.

• Impact of Community Agencies: Social workers and psychologists within community agencies play a pivotal role in positively impacting individuals’ lives by creating support systems that uphold their right to make their own choices.

• Cultivating a Supportive Culture: The goal is to foster a new culture centered around discussing how to support individuals and documenting these conversations. This shift aims to reshape public perceptions of support possibilities and encourage legal advancements.

• Challenges Faced by Health Professionals: Health professionals sometimes struggle to accept that the individuals they serve are more than just clients; they are individuals with the right to make decisions and lead their own lives.

• Tension Between Right to Decide and Right to Life: A tension emerges between the right to make decisions on an equal basis and broader rights, including the right to life, notably in the context of Medical Assistance in Dying (MAiD), which has expanded globally, including in Canada. This tension arises from the fact that the right to make decisions on an equal basis cannot be isolated from a broader set of rights.

Questions to Consider

Additional Resources

Journal Articles

Browning, M., Bigby, C., & Douglas, J. (2021). A process of decision-making support: Exploring supported decision-making practice in Canada. Journal of Intellectual & Developmental Disability, 46(2), 138–149. https://doi.org/10.3109/13668250.2020.1789269

Craigie, J., Bach, M., Gurbai, S., Kanter, A., Kim, S. Y. H., Lewis, O., & Morgan, G. (2019). Legal capacity, mental capacity and supported decision-making: Report from a panel event. International Journal of Law and Psychiatry, 62, 160–168. https://doi.org/10.1016/j.ijlp.2018.09.006

Hoffman, S. J., Sritharan, L., & Tejpar, A. (2016). Is the UN convention on the rights of persons with disabilities impacting mental health laws and policies in high-income countries? A case study of implementation in Canada. BMC International Health and Human Rights, 16(1), 28–28. https://doi.org/10.1186/s12914-016-0103-1

Online Resources & Websites

CBC/Radio Canada. (2021, February 25). How Justin Clark’s fight for independence transformed disability rights in Canada. CBC News. https://www.cbc.ca/radio/sunday/november-25-2018-the-sunday-edition-with-michael-enright-1.4911588/how-justin-clark-s-fight-for-independence-transformed-disability-rights-in-canada-1.4911590#:~:text=Following%20the%20ruling%2C%20guardianship%20laws,make%20them%20on%20their%20behalf 

Inclusion Canada. (2022). Inclusion Canada’s revised legal capacity position statement. https://inclusioncanada.ca/wp-content/uploads/2022/08/Jul22-Position-Legal-Capacity-2.pdf

IRIS. (2021). Community-led initiatives for supporting the right to decide: A framework for design and implementation. https://irisinstitute.ca/resource/community-led-initiatives-supporting-the-right-to-decide-a-framework-for-design-and-implementation/

Planning Network. (n.d.). Understanding legal capacity and decision making. https://www.planningnetwork.ca/resources/action-guide-to-understanding-legal-capacity-and-supported-decision-making

Raycraft, R. (2022, January 2). Years after medical assistance in dying became legal, the debate rages on. CBC News. https://www.cbc.ca/news/politics/maid-access-debate-contentious-1.6300345#:~:text=Politics-,Years%20after%20medical%20assistance%20in%20dying%20became%20legal%2C%20the%20debate,harmful%20to%20Canadians%20with%20disabilities

The Canadian Bar Association. (2022, August 24). Nothing about us without us. https://www.cba.org/Sections/Health-Law/Resources/Resources/2022/HealthEssayWinner2022

The Coalition on Alternatives to Guardianship. (2017). Issues related to meeting Canada’s obligations
to recognize the right to legal capacity without discrimination and enable access to supports. https://inclusioncanada.ca/wp-content/uploads/2018/02/CRPD-A12-Shadow-Report-Legal-Capacity.pdf

Videos, Webinars, Presentations

Rights-Based Social Policy. (2015, November 17). The UNCRPD and Article 12 – Michael Bach PhD [Video]. YouTube.  https://youtu.be/0nhus72eUH8