 This is an introduction to how law and policy impact on health care for Indigenous people in Canada. It is intended to address several basic issues. My name is Constance McIntosh. I'm the director of the Dalhousie Health Law Institute at the Shulik School of Law. This is not intended to serve as legal advice. Content is for educational purposes only. I'm going to start by providing you with some basic demographic and jurisdictional information, as well as information on health status. I will then turn to describing the relationship between law and health care for Indigenous people. Finally, I will briefly describe how some laws carve out exceptions for Indigenous people that are relevant in the hospital context, as well as some recent lawsuits and studies concerning how racism persists in health care delivery. Demographics. Indigenous people live throughout Canada. Just under one and a half million people self-identify as Indigenous, and they are diverse. There are approximately 50 linguistically distinct groups in Canada, each with their own culture and historic land base. There are over 600 First Nation communities. Canadian law and policy, however, has long reduced the Indigenous population into just three or four categories, which often conceals this diversity. The commonly drawn upon umbrella categories are First Nations, Inuit, and Métis people, whereas the local health of provincial residents is usually primarily a provincial concern, this situation changes for some Indigenous people. This is because Canada's Constitution Act of 1867 says that the federal government is responsible for Indians. Canada has not assumed that Section 91-24 makes it responsible for all Indigenous people or for the health of all Indigenous people. Canada enacted a statute, the Indian Act, which sets out criteria by which some First Nations people could register as Indians for the purpose of the Act. The federal government acknowledges a level of responsibility for this specific population. Courts forced the federal government to also acknowledge responsibility for Inuit persons in a 1939 decision. The federal government provides these populations with some health services through the First Nations and Inuit Health Branch of Health Canada. The majority of people who self-identify as Indigenous, over 851,000, are members of First Nations who meet the criteria that the federal government invented in the Indian Act for being registered under the Act. The criteria are complex, but essentially have to do with whether the majority of one's parents and grandparents were historically recognized as meeting the criteria for status. Approximately a quarter of those who self-identify as a member of a First Nation, so over 200,000, do not meet the federal government's criteria for registration. They're sometimes referred to as non-status First Nations persons. Approximately 60,000 Indigenous people are Inuit, the majority of whom live in Arctic coastal regions such as Nunavut or Nunavut. About 8,000 Inuit live in Southern Canada. The last major socio-legal category of Indigenous people that Canada recognizes is Métis people, of whom there are around 452,000. They usually do not qualify for registration under the Indian Act, and the federal government has largely refused to take any responsibility for their health care. A recent decision of the federal court of appeal, Daniels versus Canada, found the federal government is wrong, that it is in fact, jurisdictionally responsible for Métis and status First Nations persons. We are waiting for the Supreme Court of Canada to release its decision on this case. Well, nearly half of First Nations persons who are registered under the Indian Act live on reserves. The majority of this population lives in urban areas, as do the majority of First Nations persons who are not registered. Winnipeg, Edmonton and Prince Rupert all have sizable Indigenous populations. Many Métis people live in Ontario or the western provinces. In Alberta, many Métis live in distinct Métis communities. A last demographic point is that this population is young. Although only making up 4.3% of the Canadian population, 7% of all children under the age of 14 are Indigenous. In Saskatchewan and Manitoba, 20% of all children are Indigenous. And the adult population is also young, with median ages ranging from 23 for Inuit to 26 for First Nations to 31 for Métis. Health status. Every major study of health in Canada has considered Indigenous populations has reached similar conclusions. The Kirby report of 99 used the label deplorable when describing the distinction between the health status of Indigenous versus non-Indigenous Canadians. Importantly, he linked health status with equally poor socioeconomic conditions. Roy Robano's 2002 report identified the deep disparities between the health of Indigenous and non-Indigenous peoples as well, labelling them as simply unacceptable. The Naylor report of 2006 described the disparity as a national disgrace. The statistically poor health status is linked to many legally enabled historic factors. These include massive dispossession of land and undermining of Indigenous economies leading to gross poverty today. Forced attendance at residential schools, where generations of Indigenous children were subjected to sexual, mental, physical, emotional and spiritual abuse, with the last school closing in 1996. The consequences of that abuse manifest today in high rates of poor mental health, with heightened rates of self-abuse, suicide, depression and addictions, as well as impaired family relationships. Recent empirical research shows intergenerational trauma. The poor health is also linked to entrenched racism. This has impacts across the social determinants of health, as Indigenous people continue to experience discrimination in employment, housing and, as discussed below, in accessing healthcare. So, where does today's law come in? Many Indigenous people have long asserted that they have a right to healthcare. They reference historic treaties, agreed to between Indigenous peoples and representatives of the Crown. Courts have ruled historic treaties are legally binding on the current Canadian government. One treaty refers to an obligation to provide a medicine chest. These terms have been litigated with inconsistent results. But the most recent judicial commentary concluded that there is indeed likely a treaty obligation to provide healthcare. Indigenous law also recognises an equal right to health, and an obligation on states to take steps for Indigenous people to achieve equal health status. These legal rights have obviously not yet been realised in Canada. I will now identify the laws and policies under which Indigenous peoples access and benefit from healthcare in Canada, before turning to studies about the implicit racism, which Indigenous peoples may encounter when seeking healthcare services. In general, Indigenous persons who are residents of a province and who live off a reserve have the right to access the full range of healthcare services that are available to all other residents of the province. This is regardless of whether or not they have registered status under the Indian Act. This fact is often misunderstood by healthcare providers. If an Indigenous person lives on a reserve, the situation may or may not be different. It depends on the province. Some provincial governments extend to all or part of the services that they provide to on reserve residents. Others do not. You will have to determine the situation in the provinces in which you practice. The federal government addresses some healthcare needs. Community health services are usually delivered through First Nations' Band Councils or First Nation Regional Health Authority. You need to know the situation in your jurisdiction. You cannot assume that reserve residents can access the services that parallel those that exist within the provincial system. This produces gaps and access barriers. Sometimes it's not clear whether a federal or provincial program is intended to cover a First Nations person who lives on a reserve. In these situations, if the person is a child, Jordan's principle applies. Jordan's principle was developed in response to a case of a First Nations child who had complex medical needs and his family lived on a reserve. Jordan could be cared for outside of a hospital setting as long as home care services were available for him. The federal and provincial governments fought over which level of government was responsible for paying the services that Jordan needed. They fought for two years. At that point the issue became moot because Jordan passed away in hospital, never having been able to live in a home setting. The purpose of Jordan's principle is to prevent First Nations children from being denied equal access to health care benefits and protections, those that other Canadian children receive just because they are aboriginal. The principle requires that whichever level of government is approached first is required to pay. If that level of government believes the expense ought to be borne by the other level of government, they're to sort that out between themselves and not delay the care. Unfortunately, Jordan's principle is not always respected. First Nations families still have to go to court to get equal care for their children in some instances. This happened recently in Nova Scotia in the Picto Landing case. If an Indigenous person has registered status under the Indian Act, they receive insurance services that other Indigenous people and most non-Indigenous people do not. This is pursuant to a program called the Non-Insured Health Benefits Plan. This plan is very important for addressing the health disparity described earlier. It is criticised for only being made available to First Nations persons with registered status and inuit, because the whole Indigenous population suffers from egregious health disparities. The insured services include select prescription and non-prescription medications, select medical devices and supplies, eyeglasses, ophthalmologist visits, pre-approved dental care, patient transportation, and short-term emergency intervention mental health counselling. Each of these benefits have quite strict requirements. So for example, only specific medications are available under this benefit, and it often changes. So it's important if you have a First Nations patient who is registered to check the list before you make out the prescription. Specific over-the-counter medications are also covered. These medications include antihistamines, cough syrups, antacids, sunblock, vitamins, and acetaminophen. In all cases, coverage requires that the patient has a prescription for these over-the-counter medicines. Here's the link to Health Canada's webpage to a site where there's a document that identifies which medications are covered. Pause this recording and go to the link. If you open the PDF, you can search the document. If you open the PDF, you can search the document. Can you identify specific behind and over-the-counter medications that you might prescribe to benefit a pregnant Indigenous woman with morning sickness who has NIHB coverage? What about a middle-aged Indigenous man with coverage who has diabetes? Devices may also be insured as long as they are ordered via a prescription. They too are limited to a Health Canada issued list. Pause the recording and go to the list and determine whether there are devices that you might write a prescription for. For say, an Indigenous child with NIHB coverage who is asthmatic. Some of the benefits are more challenging for a patient to access. They require you, the health care provider, to take various steps to advance your Indigenous patient's interests. For example, the emergency mental health counseling benefit requires pre-authorization. I'm now going to discuss how provincial laws that apply in hospital settings are constitutionally mandated to recognize exemptions for Indigenous cultural practices. For example, all Canadian provinces ban smoking in hospitals, but Canadian provinces have recognized an exemption to this rule in the case of Indigenous people's spiritual and cultural practices to accommodate smudging. Smudging is an Indigenous spiritual practice involving burning plant matter, often including sweet grass and tobacco, where the smoke is passed over the body as part of purification and clearing of negative thoughts and feelings. It has considerable positive impacts on Indigenous well-being. Health authorities across the country have enacted protocols and policies regarding smudging. For example, in Nova Scotia there is a safety protocol for the Victoria General Hospital and Infirmary, which contemplates smudging taking place indoors at the chapel. There's a distinct safety protocol for smudging that is outdoors or on hospital grounds. In contests over treatment choices for children, Indigenous families may have the constitutionally protected right to refuse conventional treatments as prescribed by physicians and to instead have their child treated through traditional medicine. This was the ruling in the Hamilton Health Services case of 2014. This recent court decision has provoked controversy. The child was predicted to have a 90% or better chance of being cured if a course of chemotherapy was followed. However, the judge found the right to use traditional medicine quote, cannot be qualified as a right only if it's proven to work by employing the western medical paradigm end quote. The implications of this case and its interaction with child protection regimes must be determined. The final topic is racism and cultural safety, which takes us to the story of Mr. Brian Sinclair, a disabled Indigenous man who was referred to a Winnipeg emergency room by a physician. He had a blocked catheter and a suspected infection. After waiting in his wheelchair in the emergency room for 34 hours, he died from his infection. The chief medical examiner has concluded that 30 to 60 minutes of care and antibiotics would have saved him. During that 34 hours period in the emergency room, he vomited on himself. Other petitioners, sorry, other visitors petitioned the staff to assist him. Mr. Sinclair was in fact dead for several hours before another patient finally got staff to attend to him. Staff later testified they assumed that Mr. Sinclair was sleeping off intoxication or he was homeless and came in to warm up. Mr. Sinclair was not drunk nor was he homeless. He was Indigenous. He was disabled. An inquest determined that homicide charges should not be laid. Nonetheless, in 2015, the Manitoba Court of Appeal agreed his family could bring a section 15 discrimination claim against the hospital. Many Indigenous people report not feeling culturally safe when seeking health care services from non-Indigenous peoples or in non-Indigenous communities. Their experiences of racism often manifest in being treated as lacking credibility or in failing to receive care. A recent report, First Nations Second Class Treatment, documents the systemic nature of these experiences and comments specifically on the Brian Sinclair case. You can listen to an episode of CBC's white coat black art that discusses this report and its implications for improving health care for Indigenous people. This completes my brief introduction to the intersection between law and health care for Indigenous people in Canada.