Whatever Happened to Canadian Children's Equality Rights? A Reconsideration of the Eaton Special Education Case

This paper reconsiders the Canadian Supreme Court Decision in Eaton and examines its implications for the equality rights of Canadian children in general. The suggestion is made that a 'best interest of the child' standard cannot be met if it involves the violation of fundamental Charter rights. Segregated special education placement, when against the wishes of the parents or guardians and with no s. 1 justification, it is argued, is unconstitutional. The latter gives rise to violations of equality provisions with regard to the student's freedom of association, the right to personal autonomy in decision-making for parents in regards to their child's education, as well as, in some cases, security of the person insofar as the psychological, social and cognitive development of the disabled child is concerned. Such an exclusion from the mainstream, if imposed, it is suggested, does not generally meet the test for 'reasonableness' in accommodation consistent with Charter guarantees. The presumption in favor of integration unless the parent or guardian wishes otherwise is, it is argued, a constitutional imperative based on Charter equality rights rather than a preference for one pedagogical theory (integration) over another (segregated special education placement).     

Challenging statutory limitations on children's education rights: a re-examination of the Canadian Supreme Court Decision in Auton

The 2004 Supreme Court of Canada decision in Auton concerns the right of autistic children to access services held by their parents to be essential to their children's ability to participate as members of a democratic society. It is argued that the child's right to have his or her basic developmental needs met is a constitutionally protected one. Having those developmental needs met engages both education and health rights. In Auton the parents had sought funding for the service at issue from the Ministry of Health, the Ministry of Children and Families (which dealt with mental health services and other particular support programs for the families of disabled children) as well as from the Ministry of Education. The case raises central questions regarding the very nature of education and the constitutionality of a discretionary power of government to set out statutory limitations upon fundamental human rights including education rights.     

Supreme Court of Canada's “Beautiful Mind” case

The Supreme Court of Canada's (SCC) first case involving capacity and the refusal of involuntary psychiatric treatment involved a self described “professor” who had been referred to as “Canada's Beautiful Mind”. He had been found not criminally responsible on account of mental disorder for uttering death threats. While considered incapable of making a treatment decision by psychiatrists and a review board, three levels of court, including the SCC, found him to be capable. “Professor” Starson therefore continued to refuse treatment for his psychosis and spent over seven years detained because he refused the treatment required to become well enough to be released. This refusal of treatment is permitted under Ontario law, although it is not permitted in some other Canadian provinces, and in many other countries.This article describes Starson's situation, Ontario's law with respect to consent to treatment and relevant Canadian constitutional and criminal law. It provides an analysis of the Consent and Capacity Board decision and the court appeals. Implications from Starson's case are analyzed in relation to what happened to Starson, human rights and comparative law pertaining to involuntary patients' refusal of treatment, especially their relevance to the Canadian Charter of Rights and Freedoms, and laws in some other countries. Many Canadian and foreign jurisdictions where laws apparently accord with human rights codes do not allow a person to refuse the treatment required to restore their liberty. We conclude that a law that allows a person with a mental illness to be incarcerated indefinitely in a “hospital” because needed psychiatric treatment cannot, by law, be provided is not justifiable in a caring democratic jurisdiction.     

Mental health legislation and human rights in England, Wales and the Republic of Ireland

In 2005, the World Health Organization (WHO) published its Resource Book on Mental Health, Human Rights and Legislation (Geneva: WHO) presenting a detailed statement of human rights issues which need to be addressed in national legislation relating to mental health. The purpose of this paper is to determine the extent to which revised mental health legislation in England, Wales (2007) and Ireland (2001) accords with these standards (excluding standards relating solely to children or mentally-ill offenders).Legislation in England and Wales meets 90 (54.2%) of the 166 WHO standards examined, while legislation in Ireland meets 80 standards (48.2%). Areas of high compliance include definitions of mental disorder, relatively robust procedures for involuntary admission and treatment (although provision of information remains suboptimal) and clarity regarding offences and penalties Areas of medium compliance relate to competence, capacity and consent (with a particular deficit in capacity legislation in Ireland), oversight and review (which exclude long-term voluntary patients and require more robust complaints procedures), and rules governing special treatments, seclusion and restraint. Areas of low compliance relate to promoting rights (impacting on other areas within legislation, such as information management), voluntary patients (especially non-protesting, incapacitated patients), protection of vulnerable groups and emergency treatment. The greatest single deficit in both jurisdictions relates to economic and social rights.There are four key areas in need of rectification and clarification in relation to mental health legislation in England, Wales and Ireland; these relate to (1) measures to protect and promote the rights of voluntary patients; (2) issues relating to competence, capacity and consent (especially in Ireland); (3) the role of “common law” in relation to mental health law (especially in England and Wales); and (4) the extent to which each jurisdiction wishes to protect the economic and social rights of the mentally ill through mental health legislation rather than general legislation.It is hoped that this preliminary analysis of mental health legislation will prompt deeper national audits of mental health and general law as it relates to the mentally ill, performed by multi-disciplinary committees, as recommended by the WHO.     

Protecting mental health clients' dignity — The importance of legal control

Protecting human beings' dignity is a fundamental value underlying the UN's Universal Declaration of Human Rights as well as several recommendations and conventions derived from this, among them the European Convention of Human Rights (ECHR), a declaration that also takes precedence over Norwegian legislation. Still, clients' stories inform us that their dignity is not always protected in the mental health service systems.The aim of the study has been to investigate violations of dignity considered from the clients' points of view, and to suggest actions that may ensure that practice is brought in line with human rights values.The method used has been a qualitative content analysis of 335 client narratives.The conclusion is that mental health clients experience infringements that cannot be explained without reference to their status as clients in a system which, based on judgments from medical experts, has a legitimate right to ignore clients' voices as well as their fundamental human rights. The main focus of this discussion is the role of the ECHR and the European Court of Human Rights as instruments for protecting mental health clients' human rights. To bring about changes, recommendations and practices should be harmonized with the new UN Convention on the Rights of Persons with Disabilities (2006). Under this convention, the European Court of Human Rights has support for the application of the ECHR without exemptions for special groups of people.     

Conduct unbecoming: The dilemma of a school's responsibility in respect of teacher misconduct towards pupils

It was recently remarked that if the infamous schoolmaster, Wackford Squeers, in Charles Dickens's Nicholas Nickleby , was around today his pupils would probably accuse him of assault and the police would be paying a visit to his school, Dotheboys Hall. Though a casual comment, a great deal of truth lies therein. In the 'rights culture' of today, the manner in which adults may exercise authority over children is markedly different to that of even 20 years ago. The majority of teachers act in a professional manner and carry out their duties, often under great pressure, with the best interests of their students uppermost in their minds. However, this is not always the case. With reasonable frequency, there are reports of teachers behaving towards their students in ways which range from inappropriate to culpable. In the worst scenario the accusations are of sexual abuse, but there are also those of physical or verbal bullying. There is nowadays an increased recognition of the harmful and lasting effects of different forms of abuse, and the responsibility of those in authority to prevent it happening. In recent years New Zealand school administrators have been faced with dealing appropriately with allegations of a teacher's misconduct in a variety of different ways towards their students. A school board of trustees has a dilemma in that it must discharge dual responsibilities, in respect of its students and its staff. This article examines the legal implications of those responsibilities. It also considers the responsibility of a school in a wider context — to other schools and to the community at large.     

Privative clauses in special education legislative schemes: are they constitutional under the Canadian Charter?

This paper suggests that privative clauses in the enabling statutes (Education Acts) governing provincially appointed special education appeal tribunals (SET) are unconstitutional under the Canadian Charter of Rights and Freedoms. It is suggested that ‘final and binding’ SET decisions about children's designation as special needs and their educational placement infringe upon the Charter rights of both parent and exceptional child. The standard for judicial review of SET decisions, given a privative clause, is whether the decision is ‘patently unreasonable’ while ‘correctness’, according to case law, is the appropriate standard when finally determining fundamental rights. Parents of exceptional children in practice have recourse to the courts regarding only procedural rather than substantive issues regarding SET decisions due to the high deference the courts afford any administrat ive tribunal protected by a privative clause. The very high judicial review standard of ‘patently unreasonable’ rather than ‘correctness’ is not consistent, furthermore, with the child's ‘best interests’ or in meeting international obligations to disabled children under the Convention on the Rights of the Child.     

平衡之功 医疗之效——医疗纠纷中精神损害赔偿功能之实证分析

随着人们对自身权利的日益关注,精神损害赔偿在医疗纠纷中也逐渐成为一个热点问题。并且,由于医疗行为本身的特殊性使医疗纠纷成为一种特殊的民事纠纷,其精神损害赔偿问题具有特殊性。本丈试图通过对在成都市武侯区人民法院调研时获取的有关精神损害赔偿案件材料进行具体分析,以个人利益、社会利益和公共利益三者的关系为视角,探讨在现行法律规定的框架下解决医疗纠纷的精神损害赔偿中,如何能既考虑医疗行为的特殊性,又维护患方的合法权益,在两者之间达成一种平衡。既保障医疗卫生事业的顺利发展,又使患方的精神损害得以“医疗”。     

TEMPO: A contemporary model for police education and training about mental illness

Given the increasing number of interactions between police and people with mental illnesses (PMI), there has been widespread interest in the development of education for police about how best to interact with PMI. This paper reflects the review of current practice in a variety of jurisdictions across Canada as well as in the United States (U.S.), the United Kingdom (U.K.) and Australia; it proposes a comprehensive model of learning based on the literature that addresses not only the content in the narrow sense but also the importance of broader contextual knowledge and understanding in developing effective education and training. Embedded in the principles articulated in the Mental Health Strategy for Canada, the TEMPO (Training and Education about Mental illness for Police Organizations) model is a multilevel learning strategy for Canadian police personnel. Learning objectives and key principles are articulated in order to ensure the model is applicable to a wide range of police agencies and individual jurisdictional needs. In addition to providing a firm basis of factual knowledge for police personnel, the resultant model embraces a human rights/anti-stigma philosophy, provides for a range of education appropriate to diverse police audiences, emphasizes a systems approach to police/mental health liaison activities and addresses issues related to the delivery and implementation of police education and training.     

IRRECONCILABLE DIFFERENCES

This article will examine several of the more difficult issues raised by the Freeman case, including the potential conflict between a parent's rights and a child's rights, the concern over legislative intervention in family autonomy, and the obvious struggle the courts are having in making consistent decisions in this area. The focus will be on Canadian child welfare legislation, with particular emphasis on the Nova Scotia legislation, as it relates to the refusal to consent to the medical treatment of a child. Similarly, the case law considered will also be primarily Canadian. The article will concentrate on situations in which the withholding of medical treatment would threaten the life of a child and will discuss the withholding of treatment as it relates to an unborn child, a mentally and/or physically challenged child, and a normal child.     

The Place for Custody Evaluations in Family Peacemaking

Custody evaluations can serve the dual purpose of providing neutral, objective information to the court while also contributing to the possibility of earlier settlement, which coincides with the therapeutic jurisprudence goal of more positive outcomes for children and families. Research suggests that most cases settle after custody evaluations. However, most of the literature is focused on the use of custody evaluations for litigation. Evaluators, attorneys, and mental health consultants can influence parents to focus more on children's needs and less on their conflict as they go through the evaluation process. This article urges family courts to develop processes and require professionals to learn skills needed for an interdisciplinary process to utilize evaluations in peacemaking.

Key Points for the Family Court Community:
• All custody evaluation processes should aim to reduce and/or shorten children's exposure to parental conflict.
• Evaluators, attorneys, and mental health professional consultants should use the evaluation process to influence parents to be more aware of their children's needs and less invested in their adversarial positions.
• Evaluators should learn to write and orally present information and state opinions with consideration of the parents themselves as consumers of the custody evaluation as well as the court.
• Attorneys and mental health professional consultants should help clients review the report, process their emotional reactions, and consider their options for settlement versus litigation in terms of emotional and financial costs to the family.
• Court processes should be developed to contain the time and cost of custody evaluations and provide dispute resolution after custody evaluations.

     

The right of the child to be heard in education litigation: an analysis of the ‘intelligent design’ Pennsylvania case on the separation of Church and State in the public schools

This paper examines a seminal case in US education law regarding the separation of Church and State in the public schools. The issue decided was whether it is constitutional under American law for a school district to mandate reference to ‘intelligent design’ (ID) as an alternative to the theory of evolution whilst instructing students only in the latter. ID theory postulates an unspecified ‘master intelligence’ as being responsible for the origins of life. A Pennsylvania court found that ID was a religious theory and held the school district had officially endorsed ID contrary to constitutional requirements. The issue of children's participation rights was not raised by the parties or the Court and student views were not solicited. The reasons for this failure to allow students to be heard in the judicial proceedings are explored as are the implications for how the notion of children's rights is understood in North America.     

Protecting Children While Silencing Them: The Children's Online Privacy Protection Act and Children's Free Speech Rights

In 1998, Congress passed the first law protecting the privacy of individuals on the Internet. The Children's Online Privacy Protection Act (COPPA) restricts the online collection of personal information from children aged 12 or younger. Under the law, Web sites that maintain chat rooms directed at children must either condition a child's participation on the consent of a parent or guardian or monitor the chat room and censor references to personal information. This article examines whether COPPA's chat room restrictions infringe on the free speech rights of children. The examination finds that aspects of the chat room restrictions are constitutionally suspect because it is questionable whether the parental consent requirement is narrowly tailored.     

Incorporation of the European Convention on Human Rights into UK Law: Implications for education

This article focuses on the UK government's proposal to incorporate the European Convention on Human Rights into UK law, and the consequences of incorporation for the individual in the context of education. The first part of the article explores the mechanisms proposed for bringing about incorporation, and stresses in particular the importance attached by the government to upholding the fundamental principle of the sovereignty of the UK Parliament. In this context it emphasises the government's decision to deny to the British courts the capacity to strike down legislative provisions as being incompatible with Convention rights. The second part of the article goes on to explore (highly selectively) a number of key areas in which incorporation of the ECHR has the potential to enhance individual rights in the field of education, including parental choice of school, collective worship and religious education, and aspects of the secular curriculum. The discussion emphasises strongly the likely significance of the UK government's reservation to the second sentence of Article 2 of the First Protocol to the ECHR. Broadly, the conclusion drawn is that the incorporation of the Convention will have only a very marginal impact on the reality of individual rights to education.     

Children's right to be educated for tolerance: minority rights and inclusion

States do not make a genuine commitment to peace where children's right to be educated for tolerance is denied. Education for tolerance is considered a central aim of education, as set out in Article 29 of the Convention on the Rights of the Child (CRC). Hence, states are obliged under the convention to create conditions conducive to such an education. Such conditions undoubtedly include providing an opportunity in an educational setting for some level of interaction between children of different backgrounds (while still maintaining whatever educational programmes are deemed necessary for the preservation of the culture of various minority groups). To eliminate the opportunity for any level of educational integration between children from the dominant group and from various national minority groups or other identifiable groups (such as disabled and non-disabled children, citizen and immigrant or child refugee groups) is to infringe upon children's fundamental human right to free association. Such an association is necessary for children's positive mental and spiritual development. The courts have unfortunately been inconsistent in protecting the right to a tolerant educational setting since they often regard children's education rights as subsumed under parental liberty rights.     

The Trump Effect,Children, and the Value of Human Rights Education

Since launching his presidential campaign, Donald Trump's rhetoric has often been divisive as well as demeaning of selected groups. This article examines the impact of Trump's rhetoric on children and their communities and explores the role that human rights education can play in responding to Trump and forging broader support for human rights. The article reviews the research on human rights education and considers how human rights education can be embedded in broader efforts to educate children. Using children's literature as a case study, the article argues for the importance of mainstreaming human rights education and meeting children where they are, in order to foster greater recognition of and respect for the rights of all individuals.     

Gillick v West Norfolk and Wisbech Area Health Authority

England's Court of Appeal, Civil Division, ruled that parents had the right to prevent a physician at the local health authority from prescribing contraceptives to girls under the age of 16 without parental consent. Since a girl was legally incapable of giving valid consent in other matters before that age, neither could she give valid consent to contraception or abortion. A doctor who provided contraception or abortion treatment to a girl under 16, except in an emergency or with permission of the court, would infringe on the legal rights of the parents. An appeal was taken to the House of Lords.     

Operation of guardianship laws in the emergency ward

Enduring and workable legislative schemes typically include (a) a balanced approach to the rights and duties of all parties under their purview; and (b) consideration of all major consequences that may flow from the codification of underpinning doctrines. This column examines the 1999 amendments to the Guardianship and Administration Act 1986 (Vic) regulating patients' consent to medical treatment focusing on their application in modern emergency departments. The legislation needs to reconcile the human rights principle that humane and appropriate treatment is a fundamental right of all those who suffer from ill health and disease, with the principle that all patients (including those with impaired, but not totally absent, decisional capacity) have an absolute right to refuse life-saving treatment. Consent and refusal of treatment provisions should be based on the notion of reasonableness, including recognition that the mental and emotional states experienced by physically ill people may, in the short-term, adversely affect their decision-making capacity. Unless the consent legislation factors in the realities of modern emergency practice and resources, statutory thresholds for decisional competence, instead of affording protection, may result in much worse outcomes for vulnerable patients.     

Community-based care and compulsion: what role for human rights?

This article considers the role of traditional conceptions of human rights in relation to the challenges posed by community treatment orders (CTOs). It explores how traditional rights discourse in mental health, which has focused on the rights of liberty and autonomy, is to be located within the landscape of community-based mental health law. Using jurisprudence arising under the European Convention on Human Rights, it identifies the limitations of traditional rights in this context. However, it argues that traditional concepts such as liberty and privacy still have a role to play.     

Education,Languages and Linguistic Minorities in the EU: Challenges and Perspectives

Although, with the coming into force of the Lisbon Treaty, two provisions of EU primary law now refer to ‘minorities,’ there are no explicit EU competences and policies to promote the rights of minority groups in education. Nevertheless, EU law has a strong potential to impact the educational rights of linguistic minorities in Member States. To evaluate the right to access education, with an emphasis on the needs of minorities to preserve their identity, this paper first discusses the EU's relevant competences in education (Part II) and then in languages (Part III). Based on the analysis of relevant EU provisions, the paper concludes that EU law is unlikely to offer meaningful protection to linguistic minorities without explicitly endorsing their educational rights. However, to do so, the EU needs a stronger competence in education and minority rights.