Canada’s history of failing to provide medical care for Indigenous children

Abstract

In December 2007, the House of Commons unanimously supported Jordan’s Principle, a commitment that all First Nations children would receive the health care products, social services, and supports, and education they need, in memory of Jordan River Anderson. However, the process of applying for Jordan’s Principle was convoluted and not transparent, leaving several cases not being responded to. The Canadian Human Rights Tribunal found the definition and implementation of Jordan’s Principle to be racist and discriminatory in 2016, ordering the Canadian government to make immediate changes. Failing to make changes to Jordan’s Principle, the Canadian government was found to be noncompliant with the Canadian Human Rights Tribunal orders in 2018. This article provides one case example of Jordan’s Principle that was not responded to, details on the current status of Jordan’s Principle, and information on the recent implementation of the Act respecting First Nations, Inuit and Métis children, youth and families.

The following article provides a chronological overview of the development and implementation of Jordan’s Principle, including information on challenges with implementation highlighted through a case example. Findings from the Canadian Human Rights Tribunal on Jordan’s Principle are provided to clarify what Jordan’s Principle is supposed to cover, followed by a current picture of policy supports and next steps for policy implementation in Canada to provide Indigenous children with improved support and access to health care.

THE STORY OF JORDAN RIVER ANDERSON

Jordan River Anderson of Norway House Cree Nation was born in a Winnipeg hospital in 1999 with multiple and complex medical needs (1). He was required to stay at the hospital from birth until the age of 2 years (1). At the time of Jordan’s second birthday, he was supposed to move to a medically trained foster home in Winnipeg, which was catered to look after his complex medical needs (1).

At the time of discharge from the hospital, issues started to emerge. The provincial Manitoba and federal Canadian governments were disputing over who was to cover Jordan’s home care costs (1,2). The federal government disputed both Manitoba’s claims and claims between federal departments: Health Canada and Indigenous and Northern Affairs Canada (INAC) regarding who was financially responsible (1,2).

The dispute between governments went on for an additional 2 years, and the entire time, Jordan was left in the hospital. At the age of 5 years, never having spent a day in his family’s home, Jordan passed away (1,2).

JORDAN’S PRINCIPLE

In December 2007, the House of Commons unanimously supported Jordan’s Principle, a commitment that all First Nations children would receive the health care products, social services, and supports, and education they need, in memory of Jordan (2,3).

As a ‘legal obligation’, Jordan’s Principle has no end date and is in place to support First Nations children for generations (2). This child-first principle outlines that the government of first contact pays for the service needed and then seeks reimbursement later, in an effort to resolve jurisdictional disputes within and between federal and provincial/territorial governments (3). Unfortunately, the federal government defined Jordan’s Principle so narrowly (only children with complex medical needs with multiple service providers qualify) that no child met the definition for several years (2,4,5). The process required for reporting Jordan’s Principle cases was also unclear and the review process was not transparent (4,5).

The Aboriginal Affairs and Northern Development Canada (AANDC) department also had stated that they are unaware of any jurisdictional disputes, despite First Nations suggesting there were several Jordan’s Principle cases not being responded to (5,6).

THE STORY OF JEREMY MEAWASIGE

Jeremy Meawasige, of Pictou Landing First Nation in Nova Scotia, is a child with autism and a severe form of cerebral palsy (4,5). He relies on his single mother, Maurina Beadle, for care. Maurina was the primary caregiver for Jeremy and took on this role until 2010, when Jeremy was 15 (4,5). At this time, Maurina experienced a double stroke and was left unable to walk, hold a glass of water, and tend to her own personal needs. The Health Director at Pictou Landing First Nation determined Maurina needed help to take care of Jeremy and thought that Jordan’s Principle would be able to provide that support (4,5).

Unfortunately, the initial support provided by the provincial government at the capped amount of $2,200 per month was arbitrarily stopped soon after it began in 2011 (4,5). In response to the federal and provincial governments disputing who was responsible to pay for health care costs, the Pictou Landing Band Council started providing funding to meet Jeremy’s needs so that he would not be institutionalized, the option Health Canada and INAC recommended (4,5).

Eventually, Pictou Landing Band Council could not sustain the costs without government reimbursement, which the government refused to provide (4,5). Maurina and the Pictou Landing Board Council then decided to fight for Jeremy in court for the support promised under Jordan’s Principle from 2011 to 2012 (4,5).

Pictou Landing was successful, making this landmark trial the first ruling in favour of Jordan’s Principle (4,5). Despite this judicial decision, the federal government did not change the narrow definition of Jordan’s Principle (2,4).

FINDINGS FROM THE CANADIAN HUMAN RIGHTS TRIBUNAL

The Canadian Human Rights Tribunal found Canada’s definition of Jordan’s Principle to be racist and discriminatory in 2016 (7). It was legally ordered through a binding motion that the federal government needed to change its narrow definition of Jordan’s Principle and implement it fully (7). Despite this, the federal government did not change the process associated with Jordan’s Principle and continued to turn First Nations children away from medical support (2,7).

In 2018, the federal government was found to be noncompliant with the Canadian Human Rights Tribunal orders (8). The 2018 order also emphasized that Jordan’s Principle included a substantive equality legal principle, meaning that services needed to provide First Nations children with the same outcomes as other children, taking into account the disadvantage that First Nations children experience. This means that First Nations children ought to be able to access services, products, and supports that may not be available to other children in order to overcome barriers with inequality and taking into account distinct needs and circumstances of First Nations children and families living on-reserve (9). Following the Canadian Human Rights Tribunal order, the federal government stated an intention to immediately comply and implement Jordan’s Principle properly. Aims of Jordan’s Principle and an overview of what is covered are displayed in Table 1 (10).

Table 1.

Overview of aims and coverage of Jordan’s Principle (10)

Aims of Jordan’s Principle	• Providing access and funding to products, services and supports needed by First Nations children in a timely manner
Who is Covered	Children permanently residing in Canada and are: • A First Nations child registered under the Indian Act* living on or off-reserve • A First Nations child entitled to be registered under the Indian Act • An Indigenous child including a non-status First Nations child ordinarily living on-reserve
Examples of What is Covered†	Health • Assessments and screening • Long-term care • Medical supplies and equipment • Mental health services • Services from Elders • Traditional healing services • Therapeutic services (i.e., speech therapy, physiotherapy, and occupational therapy) Social • Personalized summer camps • Social worker • Specialized programs based on cultural beliefs and practices Education • Assistive technologies and electronics • School supplies • Specialized school transportation • Tutoring services

*First Nations children without Indian Act status or not eligible for Indian Act status living off-reserve but recognized as members by their Nation, and have urgent or life-threatening needs, will be provided with services required to meet urgent or life-threatening needs (10).

^†More than 662,000 products, services, and supports have been approved for coverage under Jordan’s Principle. This section provides a brief overview of main examples (10).

CURRENT PICTURE

According to the Canadian Human Rights Tribunal, Jordan’s Principle applies to all First Nations children on or off-reserve and covers a variety of health services (Table 1) (10). The tribunal also outlines in Jordan’s Principle that the federal government must make a decision on individual requests for support for First Nations children within 12 to 28 hours of receiving a request, or less for urgent cases (10). The government of first contact must pay for services. Then, afterwards, departments will determine who has to pay and which government or department gets reimbursed (10).

Recently, the implementation of the Act respecting First Nations, Inuit and Métis children, youth and families occurred January 1, 2020 (11–13). This Act affirms the right of First Nations, Inuit and Métis peoples to exercise jurisdiction over child and family services. It also allows Indigenous peoples to decide on their own solutions for their children. Since January 1, 2020, all service providers supporting Indigenous children and families must follow standards outlined in the Act (11–13). Substantive equality is highlighted in the Act respecting First Nations, Inuit and Métis children, youth and families, but the Act excludes Jordan’s Principle despite calls by First Nations to include it (14,15). While the Act is a step forward in Canada, limitations of the Act include: missing information on how to address the long-standing biases of judges in their interpretation of policy, nonbinding commitments on funding, lack of an explicit process for dispute resolution of provincial and federal noncompliance, and a failure to collect and publish meaningful child welfare data related to the Act (14,15). Policy changes to address these limitations are needed to overcome barriers with the Act.

CONCLUSION

It is important that First Nations children have equitable access to the health care services that other children have. Jordan’s Principle and the recently implemented Act respecting First Nations, Inuit and Métis children, youth and families are important for health care providers to be aware of as they are policy tools to help ensure we put all children first and support them in getting the best care for their needs. It is also essential that the substantive equality legal principle highlighted in Jordan’s Principle be upheld in order to ensure First Nations children achieve equitable outcomes compared to other children. Substantive equality includes coverage for items such as clothing and footwear replacements related to a child’s condition or air travel for patient family members to attend education workshops on caring for a child with special needs. Unfortunately, because of the extensive history of problems with the government failing to deliver its promise to uphold Jordan’s Principle, if anyone has been denied support, their application can be reviewed by contacting: 1-855-JP-CHILD (1-855-572-4453), TTY 1-866-553-0554, or emailing info@fncaringsociety.com. Committing to advocate for First Nations children receiving the care they need should be a priority for all health care providers including physicians, nurses, and social workers in order to lead to a more equitable society.

Funding: There are no funders to report for this submission.

Potential Conflicts of Interest: The author: No reported conflicts of interest. The author has submitted the ICMJE Form for Disclosure of Potential Conflicts of Interest. Conflicts that the editors consider relevant to the content of the manuscript have been disclosed.