First Nations children affected by jurisdictional squabbles

Health Law Update

March 15, 2018

Jonathan P. Rossall, QC (L) & Jennifer Davis (R) | McLennan Ross LLP

Contributed by: Jonathan P. Rossall, QC & Jennifer Davis | McLennan Ross LLP

In keeping with the theme of this edition of Alberta Doctors’ Digest, we’ve chosen to explore issues relating to differential provision of health care between federally funded and provincially funded health care systems, most notably, involving First Nations children.

Most Canadians are fortunate to have access to publicly funded health care that enables them to receive timely and effective treatment. First Nations children, especially those on reserves and in isolated communities, may not have the same access, in part as a consequence of the federal government’s responsibility for their funding. Although numerous efforts have been made to erase or at least bridge some of these barriers to health care access for First Nations children, the death of a young boy at age five, resonated with the Norway House Cree Nation community in Manitoba and has likely assisted in pushing for real solutions to the barriers these children face in accessing meaningful health care.

Jordan’s Principle

Jordan River Anderson was a Norway House Cree Nation child born in 1999. He was diagnosed with a rare disorder and was hospitalized under provincial care due to a lack of available health care services on the reserve. Health care providers made the decision he could be moved into a medical foster home to be closer to his family and his community. However, the Manitoba government and federal government disputed who would cover the cost of Jordan’s care. As a result, Jordan was denied the opportunity to leave the hospital and spend his remaining years in close proximity to his family; instead he died at age five, having lived his entire life in the hospital.

Jordan’s case highlighted the serious barriers many First Nations children face in accessing health care due to jurisdictional tensions. On October 31, 2007, Ms Jean Crowder, Member of Parliament, brought forward a private member’s motion (M-296) to resolve jurisdiction disputes and end the bureaucratic tug-of-war between provincial and federal governments in determining who would pay for health care. The motion was unanimously passed in the House of Commons on December 12, 2007. The principle was a simple child-first strategy, where the child would get the care needed from the “first point of contact” and the financial apportionment between jurisdictions would be sorted after the fact.

The decision

Approximately 10 years after the passage of Jordan’s Principle, the First Nations’ Child and Family Caring Society of Canada and the Assembly of First Nations brought a complaint to the Canadian Human Rights Tribunal alleging discrimination in the provision of child and family services to First Nations on reserves and in the Yukon on the part of Aboriginal Affairs and Northern Development Canada (AANDC). On January 26, 2016, the Canadian Human Rights Tribunal found that First Nations children were adversely affected by government involvement and bureaucratic red tape in receiving health care.

This decision provided a comprehensive overview of the discrimination First Nations individuals have faced generally and, more specifically, the challenges evident in obtaining equal access to health care. The decision conclusively determined that systemic discrimination against First Nations children on reserves existed. Specifically, the tribunal considered that Jordan’s Principle not only applies to disputes between Canada and a province/territory, but also between departments within the government. It determined that the crux of Jordan’s Principle was to “prevent First Nations children from being denied essential public services or experiencing delays in receiving them.”

The decision reviewed circumstances where there was a lack of communication between government departments and found issues with funding and lack of authority being used to deny requests for specialized medical aids to assist First Nations children. These issues created gaps in service to First Nations children and their families on reserves.

These issues were further compounded by findings that there did not seem to be a clear process on how to obtain non-insured health benefits. In an effort to clarify the purpose of Jordan’s Principle, the tribunal noted that “it is Health Canada’s and AANDC’s narrow interpretation of Jordan’s Principle that results in there being no cases meeting the criteria for Jordan’s Principle … such an approach defeats the purpose of Jordan’s Principle and results in service gaps, delays and denials for First Nations children on reserve.” The tribunal found AANDC was to stop its discriminatory application of the Jordan’s Principle by narrowing the definition and apply Jordan’s Principle broadly as was intended. The tribunal made its finding clear – Jordan’s Principle was to apply to all First Nations children.

Moving forward

While the decision pushed Jordan’s Principle forward in an effort to reduce barriers to health care, the responding action has been slow. Despite two additional decisions by the tribunal finding how Canada was to apply the broad definition in Jordan’s Principle, Canada continued to narrow its interpretation.

On May 26, 2017, the Canadian Human Rights Tribunal again had to determine whether Canada was meeting its obligations to broadly interpret Jordan’s Principle as intended in the decision. Complainants brought forward allegations that Canada continued to define Jordan’s Principle narrowly, failed to adopt the orders in the decision and built further delays and gaps into cases after the decision. In the result, the tribunal made the following findings:

  • Jordan’s Principle is a ‘child-first’ principle and is to be applied equally to all First Nations children regardless of reserve status. The principle is not to be limited to those with disabilities or critical needs.
  • Gaps in government services are not to prevent meeting the health care needs of First Nations children.
  • The government department of “first contact” will pay for the services without the necessity of policy reviews or other administrative procedures. Reimbursement is of secondary concern after ensuring the child obtains the services they require.
  • Substantive equality, taking into consideration culturally appropriate services and best interest of the child, is to be paramount when a government service may be beyond the normative standard of care or not available to all other children.
  • Disputes between or within governments is not a requirement to apply Jordan’s Principle. Lack of dispute should not be a shield for failure to provide adequate care.

The tribunal went on to set numerous deadlines between May and November of 2017 for Canada to rectify its discriminatory practices, including reviewing cases it had denied previously and developing systems to prevent gaps and delays in care.

In Alberta

A group in Alberta has now been established to specifically address health care access for all First Nations children in the province. The First Nations Health Consortium (FNHC) is made up of 11 First Nations in three treaty areas that will act as advocates for First Nations children in obtaining health care without bureaucratic barriers. Jane Philpott, Federal Health Minister at the time, pledged $5 million to the FNHC over three years to assist First Nations children in obtaining access to health care.

While these important issues facing First Nations children have yet to be settled, the FNHC is a step in the right direction that appears to have the backing of the federal government in moving forward with its mandate.

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