Saturday, September 10, 2011

Canadian Information Sharing with US on Mental Health History Leads to Discrimination and is at Odds with CRPD

by Charles O'Mahony

The CBC website published an article outlining how the US have stopped persons with a history of mental illness entering the United States. See here. This has been brought into the public domain after US Homeland Security refused a Canadian national 65-year-old Lois Kamenitz to take a flight to Los Angeles as she had a history of mental illness. Reciprocal data sharing arrangements between the US and Canada permits the US access to information entered into the national Canadian Police Information Centre (CPIC) database. In Lois Kamenitz’s case information was shared about a suicide attempt 5 years previously when police responded to an emergency services call. The information did not come from her medical records rather from the police report from the emergency services call. Speaking to CBC Brad Benson from the U.S. Department of Homeland Security stated that "mental illness is actually under our law as a reason that you may not get admitted … the issue is always going to be: could someone be a danger to someone?" He indicated that when the police come across information regarding a person’s mental health history – front-line officers can legitimately use it in deciding on whether to permit a person entry to the US.

It is hard to see how the information that the US officials on Lois Kamenitz could be reasonably interpreted in a way that led to the belief that she posed a threat to anyone. She was ultimately allowed to board a flight to Los Angeles - 4 days after her initial flight. However, she was required to submit her medical records to US officials and get clearance from a Homeland Security approved doctor in Toronto before she was able to travel to the US – and was charged $250 for this. The treatment of Lois Kamenitz raises a number of human rights issues – including privacy rights and discrimination on the basis a disability.
Article 18 
of the UN Convention on the Rights of Persons with Disabilities sets out rights in respect of “liberty of movement and nationality”. It requires in 18(1) that states “recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality”. In addition States are required to ensure that persons with disabilities are able on an equal basis with others (18(1)(a)) to “[h]ave the right to acquire and change a nationality… [and be] free to leave any country, including their own”.
Canada has ratified the CRPD, which means that it agrees to abide by the standards set in the Convention. See Emily’s post here on the meaning of ratification. Clearly it is the case that Canada through sharing information with the US on a person's mental health history are facilitating discrimination on the basis of disability. In order to comply with its obligations under Article 18 of the CRPD Canada should stop sharing this information as it is leading to a restriction on the liberty of movement of persons who have experienced mental ill health. Canadian practice means that persons with a history of mental ill health may not be able to leave their country on an equal basis with others. It is also unacceptable and completely at odds with the Convention that Canadian practice results in persons with disabilities having to provide their medical records and attend a Homeland Security approved doctor in order to enter the US (and pay for the privilege).

The necessity of a Convention on the Rights of Persons with Disabilities was motivated by the need not to create new rights in respect of persons with disabilities – rather it seeks to clarify existing rights and fight stigma and discrimination. The social model of disability has been embedded in the Convention as an antidote to the powerful medical model of disability that has for too long restricted and denied the rights of persons with disabilities. It is regrettable then that the stigma associated with mental illness is being perpetrated by US immigration policy – which regards persons who have experienced mental ill health as a dangerous threat requiring containment.