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Rights-based services: What do they mean at kidsLINK?

by Karen Bailey Robinson

With acknowledgement to Gordon Floyd of Children’s Mental Health Ontario for extensive use of his paper on the subject of child rights – June 9, 2009, Sonia Pouyat, former CEO of kidsLINK; Kathleen Guy, author of “The National Children’s Alliance and A Rights Based Approach”; and Cathie Guthrie, UNICEF Canada, from her plenary discussion on child rights at the recent 2010 Conference in Ottawa.

Our typical greeting upon meeting someone: “How are you?” “Comment allez vous?” “Como estas?”

I am told that the Masai warrior greeting is “Kasserian ingera?” which translates to: “Are the children well?”

kidsLINK’s vision is that “by 2017, kidsLlNK will be an international professional resource centre linking research, training and practice to improve the lives of children, youth and their families through mental wellness.”

As part of its strategic direction for 2017, kidsLINK made a commitment not only to wellness, but to shifting to a rights-based approach in its work with children and youth.

What does this mean for kidsLINK?

If kidsLINK believes that wellness requires mental health, that well-being is dependent on mental wellness, and well-being is a human right, then children and youth have that right. These beliefs have been inspired by the United Nations Convention on the Rights of the Child.

The United Nations Convention on the Rights of the Child

As described by Kathleen Guy, the UN Convention is the most comprehensive human rights document ever adopted. Forty-two countries, including Canada, spent 10 years drafting the Convention. All but two countries in the world (the United States and Somalia) have ratified it. Built on a variety of legal systems and cultural traditions, the Convention is a universally agreed upon set of non-negotiable standards and obligations linking the child and fundamental human rights.

The Convention guarantees all children:

  • the right to survival
  • the right to develop to the fullest
  • the right to protection from harmful influences, abuse and exploitation
  • the right to participate fully in family, cultural and social life.

The foundation principles

Guy describes four articles of the Convention identified as foundation principles:

Article 2: Non Discrimination provides that all children have the same right to develop to their potential regardless of any characteristic.

Article 3: Best Interests of the Child highlights best interests as “primary consideration” in all actions regarding children. It supports a child-centred approach focusing attention on the child’s inter-related rights and needs rather than on a particular need. It makes the case that basic services for children must be protected at all times, including periods of deficit reduction. It also provides the basis for examining the laws and practices of countries regarding the protection of children.

Article 6: Right to Life, Survival and Development recognizes that in all countries, there are children living in exceptionally difficult conditions and that these children need special consideration.

Article 12: The Right to Participation speaks to children having the right to participate in decisions that affect their lives and to have their views duly considered, according to age and maturity. Roger Hart writes that participation is often defined as “. . . the process of sharing decisions which affect one’s life and the life of the community in which one lives. It is the means by which democracy is built and it is a standard against which democracy should be measured.”

Are the children well? How are we faring in Canada at the federal level?

Unfortunately, Canada has done little to act on the rights of children at the national level. As Cathy Guthrie recently pointed out Canada has:

  • no basic mechanisms to ensure children’s rights
  • no legal framework to ensure compliance with the Convention
  • no focal point for children at a federal level
  • no sustainable, targeted or measurable national plan or strategy.

However, the Canada Health Act makes it clear that the right to accessible mental health care for children and youth is as fundamental as their right to physical health care. Section 3 says:

It is hereby declared that the primary objective of Canadian health care policy is to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers. [emphasis added].

Are the children well? How are we doing provincially?

In Ontario, the right of children and youth to mental health care services is NOT being recognized equally with their right to physical health care.

  • We screen newborns for 25 possible physical abnormalities and we have mandatory childhood vaccinations against six diseases, but we have no population-wide programs either to detect or prevent children’s mental health problems at any age or stage. For children and youth whose problems are detected, mental health care is much more difficult to obtain than physical health care.
  • Half the children waiting for general surgery in Ontario’s hospitals are treated within 30 days, but half the children waiting for mental health treatment must wait longer than 60 days.
  • Every year, the government provides base funding increases, recently averaging between four and six per cent, to keep up with demand for the mostly-physical health care services provided in hospitals. However, with no base funding increases in 12 of the last 15 years, mental health services, which are provided mostly through community agencies, have actually become less available. In 2008, the government provided almost as much funding to The Hospital for Sick Children alone ($388 million, including a 4.7 per cent increase to base funding) as to the entire child and youth mental health care system of 440 agencies ($434 million in 2007-08, with no increase to base funding).

The Child and Family Services Act

The right to children’s mental health treatment is only implicitly recognized at the provincial level, in Section 72 of the Child and Family Services Act, which creates a legal duty to report to a Children’s Aid Society whenever there are reasonable grounds to suspect that:

The child has suffered emotional harm, demonstrated by serious

  • anxiety,
  • depression,
  • withdrawal,
  • self-destructive or aggressive behaviour
  • delayed development, or

the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child’s development and the child’s parent or the person having charge of the child does not provide, or … consent to, treatment to remedy or alleviate the condition.

Are we going backwards?

Some might say that, as a province, we are going backwards in respect to children’s mental health.

Prior to 1984, when the Child and Family Services Act was first passed, Ontario’s legislation regarding children’s mental health services was more explicit. Regulations under The Children’s Mental Health Centres Act (passed in 1971 when the Ministry of Health had jurisdiction) designated 70 centres and directed both that they “shall provide qualified professional and non-professional staff in sufficient numbers to enable the program of the centre to operate effectively,” and that each centre “shall provide its services … to those children, not having reached the age of nineteen years, who are identified to be suffering from mental or emotional disorders based upon objective medical, psychological, social work, educational or other related findings and are considered likely to benefit from such services” [emphasis added]. The Act itself directed that “The Minister shall pay children’s mental health centres provincial aid … in such amounts and under such conditions as are prescribed by the regulations.”

In 1972 The Health Insurance Act designated at least four of these children’s mental health centres as hospitals eligible to receive OHIP payments for all insured services they provided, and explicitly provided for payment directly to children’s mental health centres for insured services provided by physicians in the centres.

The Children’s Mental Health Centres Act (RSO 1970, Ch. 68) was at some point re-named The Children’s Mental Health Services Act (RSO 1980, Ch. 69) and was repealed in 1984 when the Child and Family Services Act came into force and jurisdiction shifted to the Ministry of Community and Social Services. The current Act encompasses mental health when it defines “child treatment service” as “a service for a child with a mental or psychiatric disorder, for the family of a child with a mental or psychiatric disorder, or for the child and the family” but makes no other specific mention of children’s mental health services.

The only other provisions of the Act that have even indirect relevance for children’s mental health services are Section 72 (re: duty to report, referenced above) and Sections 7 to 9, which say that the Minister:

  • “may … make agreements with … agencies for the provision of services, and may make payments for those services and facilities”;
  • “may make grants and contributions … for consultation, research and evaluation with respect to services and for the provision of services”;
  • “may approve the agency to provide that service”;
  • “may enter into an agreement with the agency for the establishment of the service”;
  • “may give the agency financial and other assistance”; and
  • “may approve all or any part of the premises for the provision of the service by an approved agency and may give the agency financial and other assistance … for the maintenance and operation of the premises and the provision of the service”.

In other words, since 1984 no part of Ontario’s legislation, except indirectly s. 72 of the Child and Family Services Act, has created any obligation on the provincial government to either provide or fund children’s mental health services, despite the provisions of the United Nations Convention on the Rights of the Child and the Canada Health Act.

Are the children well? How are we doing in our community?

To answer that question, we need to ask ourselves:

  • How can people in our community work together to take into account our responsibility to fulfill the full range of children’s rights?
  • Who are the children most underserved in our community and why?
  • What can we do to advocate for the rights of vulnerable children, Aboriginal children and other children who are systemically denied their rights to survival, development, protection and participation?

Taking a rights-based approach

Sonia Pouyat, kidsLINK’s former CEO, first considered the possibilities of a rights-based approach to its work at a Children’s Mental Health Ontario meeting retreat in January 2008, after a presentation by Judy Finlay, Ontario’s former Child and Youth Advocate, Sheena Starr Scott, a lawyer specializing in human rights, and Landon Pearson, former Senator and child rights advocate. The key points they made included:

  • Children’s Mental Health Ontario agencies need to advocate for a mandated child and youth mental health service, which would by definition be rights-based.
  • In a rights-based approach, rights trump needs; rights are not problem-based, and imply a duty of the state.
  • Rights look at causes, are holistic, inter-sectoral, and offer an ecological framework. A rights-based approach sees kids as fully participating actors in society with meaningful roles, and views child development in a transactional way, as the child interacting with the whole environment.
  • This is where to begin: Children have the right to full mental health services in the context of their environment, community, and family. Agencies should join with others to create a groundswell of change, a movement. Youth and parents are powerful allies.

Children have a right to treatment for emotional and mental health problems

kidsLINK invited Judy Finlay and Senator Pearson to be guest speakers at the 150th anniversary celebration in June 2008.

Their arguments were simple and compelling-children have a right to treatment, not simply to have a system that responds to those with the greatest need, as is the case with the way services are organized and funded in Waterloo Region and across Ontario. Their message resonated with us all, and fit with the strong legacy left with kidsLINK by the School Sisters of Notre Dame. It was a call to action for the next period of our history.

kidsLINK committed to a right-based approach to service

So, in our 151st year of service, kidsLINK committed to a right-based approach to service, joining with a growing number of professionals worldwide. What does it mean to adopt a rights-based approach? Again, we turn to Kathleen Guy, who outlines five major consequences of employing a rights-based approach to children’s survival, growth, development, protection and participation:

Rights are not charity. Children’s rights are not something doled out as others may see fit to do so. Everyone, from government to caregiver, is accountable for respecting and furthering children’s rights.

Rights are universal. All children have the same rights.

Children’s rights are not less important than adult rights. An important extension of the rights movement is that children are not the property of parents, nor are they less important citizens. Because of their vulnerability children’s rights should supersede the rights of adults in cases where they may conflict.

Rights can only be fully realized with empowerment. In the past, children were viewed as passive recipients of assistance rather than active participants in their own development.

Rights are indivisible and interdependent. The implementation of each right set forth in the Convention should take into account the implementation of and respect for many other rights of the child.

kidsLINK can shift thinking internally and in the community

ALL children and youth have a right to help

While provincial bodies like Children’s Mental Health Ontario lobby for legislative and policy change at the provincial level, kidsLINK can work in the trenches to shift the thinking internally and in the community about the place of its work. Families and kids themselves can be strong advocates.

Of course, kidsLINK will have to start by looking within. The adjustment to a rights-based approach means re-examining our thinking, the way access to service is organized, our language and our practice to ensure they are anchored in the language and principles of human rights – or more specifically, children’s rights. We are so used to talking about needs and responding to needs – organizing access to services around the most needy, which we dare to judge. How different would our work be if we truly believed that all children and youth have a right to help and there should be universal access to mental health prevention and treatment services?

Even more basic, all children and youth have a right to education and interventions that promote their wellness and well-being, long before they become at risk of social, emotional and mental health problems – and especially when they are at risk. Where would these interventions best occur and how would they best be organized? In a rights-based system, would kidsLINK look the way it does today? How would it look? As we pursue our new commitment to shift our way of working to one that honours our children’s human rights, How will we talk? Who will be our partners? What will we say to families? How will we lobby our elected officials? What will we do with the provincial funding we receive?

The issue of children and youth’s human rights is worthy of tenacity and effort to push the envelope for a new way

There are significant challenges in moving to adopt a rights-based approach to kidsLINK’s work – first, the adjustment to a new way of thinking, and then the many obstacles that we will encounter within our community and provincial system of services. Initially we will encounter more questions than answers. These reasons are not good enough for us to ignore the call to action. kidsLINK has always dared to focus its energy on what is right for kids and those without power within our society.

The issue of children and youth’s human rights is worthy of the same tenacity and effort to ‘push the envelope’ for a new way. Our revolutionary action can only improve the lives of children and youth, so that they achieve their potential and become contributing members of their community!

We will continue our work so that some day, we will be able to answer honestly, as the Masai warriors traditionally respond, “All the children are well.”