HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Kift
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services
Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Kift v. Ontario (Community Safety and Correctional Services)
APPEARANCES
David Kift, Applicant
Self-represented
Ontario (Community Safety and Correctional Services), Respondent
Indira Sawh, Counsel
1This Application alleges discrimination with respect to services because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is a person with a disability who was incarcerated at institutions operated by the respondent. He makes two primary allegations:
He was denied access to medications necessary to treat and control his disabilities; and
He was placed in “protective custody” which was comparable to “solitary confinement” for most of the time he was in the institutions operated by the respondents and that his disability was a factor in why this happened.
2The respondent denies that the applicant was discriminated against and filed a request for a summary hearing to determine if the Application should be dismissed, in whole or in part, as having no reasonable prospect of success. The request for summary hearing was granted and the summary hearing was held by telephone conference call on November 4, 2016.
3During the hearing, the applicant confirmed that he is not pursuing the allegation of discrimination on the ground of age. When the Application was first filed, it named a number of organizations and individuals. The applicant subsequently indicated that he was pursuing the Application only against the Ministry of Community Safety and Correctional Services. The applicant confirmed this at the hearing.
Allegation of denial of medical treatment
4The applicant alleges that when he first came to the institution in March 2013, he was taking a number of prescription medications. When he was seen by a physician at the institution, the medications he had been taking were not prescribed. In particular, the applicant says that he had been prescribed Wellbutrin for psychological conditions. This medication was not prescribed by the doctor at the institution. Instead, a different medication was prescribed. The applicant states that he had also been taking this same medication at the time he was incarcerated but at a higher dose than he was prescribed in the institution. The applicant states that as a result, he suffered increased psychological symptoms. He says he also experienced withdrawal symptoms as a result of the sudden discontinuance of the Wellbutrin. He asked to see a psychiatrist and he was referred but he was then transferred out of the institution before he could see the psychiatrist. When he returned, he saw a psychiatrist, but the psychiatrist did not prescribe the medications the applicant felt he should have. This problem persisted over the course of several subsequent assessments by the psychiatrist through to November 2014, when the applicant was transferred to a federal institution. The applicant says that he now receives the medications that he requires to control his symptoms.
5As noted by the respondent, the Tribunal has generally found that allegations that concern medical decisions are not matters that this Tribunal has jurisdiction to deal with. In Kline v. Ontario (Community Safety and Correctional Services), 2013 HRTO 230, The Tribunal said, at paragraph 21:
Human rights tribunals have recognized that differences in opinion can arise between patients and doctors when doctors decide upon the best course of treatment for a patient, including whether or not to administer medication. These tribunals have consistently held that standard of medical care issues are not within a human rights tribunal’s jurisdiction, unless the doctor’s decision amounts to differential treatment based on a Code ground, or the doctor fails to accommodate the patient’s disability-related needs up to the point of undue hardship. See Patient X v. The Clinic and another, 2012 BCHRT 118; Wilson v. Dixie Road Medical Association, 2011 HRTO 1607; TenBruggencate v. Elgin (County), 2010 HRTO 1467; Egan v. Dr. Kennedy, Dr. O’Kane and St. Paul’s Hospital, 2006 BCHRT 15; and McDonald v. O’Malley and B.C. (Ministry of Public Safety and Solicitor General), 2005 BCHRT 154.
6I agree that cases that arise from a difference of opinion between patients and doctors about the best course of treatment for a patient, including whether or not to administer medication, are not matters that fall within the jurisdiction of the Tribunal to determine.
7However, in the present case, according to the applicant, he was told that a reason he was not prescribed Wellbutrin was that there were concerns about the possibility of abuse of the medication in the general prison population. Whether or not this was in fact a factor in why the medication was not prescribed is not an issue that can be appropriately addressed at this stage in the Application.
8If it was a factor, this would suggest that there were factors other than medical judgement that played a role in the decisions about what medications to prescribe. While matters that turn only on the exercise of medical judgement are not matters that this Tribunal has jurisdiction over, the same is not necessarily true if the medical decisions are based on institutional policies about risks from the administration of certain medications. In that event, the question may be whether the needs of a disabled person can be accommodated, and whether such accommodation results in undue hardship because of health and safety concerns. This is a question that this Tribunal does have jurisdiction to deal with.
9It is premature to determine if this question actually does arise in this case. Further evidence would be necessary to determine that. However, since there is some indication that the institutional needs were a factor in addition to medical judgements, I find that at this stage, it is not appropriate to dismiss the allegation as having no reasonable prospect of success.
10I note that there is another question about this allegation, which is whether it is timely. The allegation dates to 2013, when the applicant was first incarcerated, which is more than one year before the Application was filed. However, a determination of whether there was a continuing series of events related to the same allegation about access to medical treatment is a matter that needs to be determined on the basis of more evidence.
Allegations about protective custody
11The applicant alleges that he was placed in protective custody in part because of his disabilities. He required accommodation because of mobility issues and also because he needs a CPAP machine for sleep apnea. The respondent allegedly determined that these needs could only be accommodated if the applicant was in protective custody. The applicant alleges that the conditions in protective custody were much worse than the conditions in the rest of the institution and that he was denied access to services and facilities that would otherwise have been available to him.
12The allegations related to the applicant being placed in protective custody are matters that require evidence before they can be determined. These allegations are not dismissed at this time as having no reasonable prospect of success. The Tribunal will continue to process the Application in regard to these allegations.
13The respondent indicated that it wished to have the issues raised in its request for summary hearing dealt with before it would agree to try mediation. By November 25, 2016, the respondent shall advise if it is now prepared to try mediation at the Tribunal. In the circumstances, the mediation would be conducted by telephone conference call.
Decision
14The Application is not dismissed at this time and will continue to be processed.
15By November 25, 2016, the respondent shall advise if it is prepared to try mediation.
Dated at Toronto, this 14th day of November, 2016.
“Signed by”
Brian Cook
Vice-chair