Health Canada knew of massive gaps in First Nations child health care, documents show

Health Canada officials were sent scrambling after a landmark human rights ruling last year that found the federal government discriminated against First Nation children by underfunding services for First Nation children, according to internal correspondence provided to CBC News.

The Health Canada documents reveal the department knew it faced serious shortfalls in the level of health services provided to First Nations children and was unprepared to implement changes prescribed by the human rights ruling.

The Canadian Human Rights Tribunal ruled in January 2016 that Ottawa discriminated against First Nation children by underfunding on-reserve child welfare services and by failing to apply Jordan's Principle, which places the needs of First Nations children ahead of jurisdictional disputes between governments.

• Ottawa confirms Jordan's Principle
• Advocates push government to comply with child welfare ruling
• Tribunal orders government to ensure services for Indigenous kids

The tribunal ordered Ottawa to immediately increase child welfare funding, overhaul the child welfare system and apply Jordan's Principle on all publicly delivered services, including health and education, for children.

At the time of the ruling, Health Canada's data showed on-reserve First Nation children faced a massive gap in health services compared with what was available provincially, according to the internal correspondence obtained by NDP MP Charlie Angus through the Access to Information Act.

The correspondence said Health Canada wasn't equipped to assess children with special needs, and faced gaps in mental health services and health support for children in care. 

"There are important barriers in access to services for First Nations children and youth living with certain medical conditions," said one draft Health Canada memo sent on Jan. 29, 2016, by Kristin Doull, with the population and wellness division of the First Nations and Inuit Health Branch.

"Mental health services in schools has also been identified as a gap with confusion and ambiguity over who is responsible for provision of the service."

The memo said 30.8 per cent of children "with a chronic condition experience barriers to services due to long waiting lists, and 26 per cent of children without a chronic condition report the same problem with accessing services."

Another Health Canada memo stated that services for early childhood development, including the department's Aboriginal Head Start on-Reserve program, failed to provide a level of assistance "comparable to that which is available to the general population."

The memo also said only 17 per cent of First Nation children living on-reserve benefited from the program. 

Forced to give up children

The department was also failing on maternal health with a lack of "culturally appropriate" assessment and screening services and a shortage of staff trained to assess risk factors in children, said the memo also sent on Jan. 29, 2016, by Michelle Mazerolle, manager of the population health and wellness division of the First Nations and Inuit Health Branch. 

Once a child was diagnosed there was little available support to families, forcing them to make heartbreaking choices, the memo said. 

"In many instances, as a result of lack of services, families are left with the option of turning their child over to [the] child welfare system in an attempt to receive [a] basic level of care," said the memo.

Bureaucrats additionally debated whether the department was in a position to fund hospital beds for on-reserve First Nation children needing special care at home. One official concluded the department did not fund hospital beds for home care.

That has since changed, said Sony Perron, senior assistant deputy minister for the First Nations and Inuit Health Branch.

"If there is no means to access the bed, the health branch would purchase the bed," said Perron. "The program has been modified to include coverage of beds if there is no other means to access the bed." 

Confusion over Jordan's Principle

The correspondence also reveals confusion following the Canadian Human Rights Tribunal ruling within Health Canada over the definition of Jordan's Principle, which was adopted unanimously by Parliament in December 2007, along with a realization the department wasn't ready to implement the changes. 

"Can you send me the actual principle?" wrote Robin Buckland, executive director in the office of primary health care in the First Nations and Inuit Health branch, in a Jan. 21, 2016 email. "Also, is there 'criteria' that define a case? Specifically must the child have multiple disabilities? If not, where did this belief come from?"

It appears there was no nationally agreed-to definition on Jordan's Principle at the time, but individual regions like British Columbia, Manitoba and Atlantic Canada, had developed their own interpretations.

"I would like to see side by side: current [Jordan's Principle] definition and criteria versus proposed [Jordan's Principle] definition and criteria going forward," wrote Buckland on Feb. 4, 2016. "The proposed new definition should take into account the CHRT decision but also a definition adopted by other jurisdictions such as B.C."

Health Canada eventually settled on the Jordan's Principle definition set out by the human rights tribunal in a subsequent May 2017 ruling which was based on a "child-first principle."

Perron said the department is learning from its mistakes.

"We got it wrong a couple of times," he said. 

NDP MP Charlie Angus said it is "disturbing" to know Health Canada officials were confused about Jordan's Principle despite battling the First Nations Child and Family Caring Society's Executive Director, Cindy Blackstock, and the Assembly of First Nations on the issue before the human rights tribunal for over a decade.

"It is chilling to learn that Health Canada officials didn't have a clue what Jordan's Principle is or how their department had legal obligations to ensure services to children," said Angus. "Senior officials didn't even seem to know what medical services were being offered or denied."

Minister: improvements on the way

Indigenous Services Minister Jane Philpott said things are improving, but the government still has a lot of ground to cover. 

"We have made tremendous progress in terms of Jordan's Principle being fully implemented," said Philpott. "We are going from zero to responding to a huge amount of need. There is still more work to be done."

Philpott was Health Minister at the time of the ruling. The Justin Trudeau Liberals have since moved to dissolve Indigenous Affairs to create two separate entities. Philpott's new agency, Indigenous Services, will be taking over the First Nations and Inuit Health branch that was once the purview of Health Canada.

Philpott said her department has so far approved 19,700 Jordan's Principle cases over the past year and the department has forecasted spending about $150 million by the end of the 2017-2018 fiscal year on the issue.

Blackstock said the documents obtained by Angus reveal a troubling form of thinking within government that created an environment that allowed the federal government to discriminate against First Nation children — as the human rights tribunal ruled.

"These documents demonstrate a way of thinking and acting within government that is tragically consistent with what we saw placed in evidence at the tribunal," said Blackstock.

Named after 5-year-old boy

"The primary focus is on protecting the government image and funding instead of alleviating the discrimination for children no matter how desperate their situation."

Jordan's Principle was named after Jordan River Anderson, a five-year-old from Norway House Cree Nation who died in hospital in 2005 from a rare muscular disorder while Ottawa and Manitoba argued over who should pay for home care costs.

The Blackstock-led case dragged on before the tribunal for 10 years. Ottawa has since been hit by three compliance rulings from the tribunal and is now before the Federal Court seeking clarification on an aspect of a subsequent May 2017 ruling dealing with Jordan's Principle.

The previous Stephen Harper Conservative government spent millions of dollars fighting the case and failed to convince the Federal Court to have it thrown out. The federal Liberals have spent at least $707,000 on continuing related legal battles since the ruling.