A 'Heads Up' ... New Limitation Period For Human Rights Act

I firmly believe that Human Rights Commissions have a valuable role to play in ensuring that individuals with special needs are not discriminated against. One example of this we have seen recently is in relation to a current human rights complaint in the Province with regard to the employment of individuals with special needs.

In that vein, it's important to realize that up until now there has been no legislated limitation period in which a human rights complaint must be brought in Nova Scotia. Meaning that although the Commission might consider the length of time it's been since the alleged discriminatory conduct occurred in deciding whether or not to proceed with the complaint, there was nothing within the legislation itself setting a specified time in which a complaint must be brought.

Until now, that is.

Starting today, June 30, 2008, a one-year limitation period will be in effect with respect to any complaints made to the Nova Scotia Human Rights Commission.

The amendment, which comes into force today, provides that any complaint must be made within "twelve months of the date of the action or conduct complained of, or within twelve months of the last instance of the action or conduct if the action or conduct is ongoing". Although the Commission's Director does have the discretion to grant a complainant an additional period "of not more than twelve months to make a complaint if to do so would be in the public interest and, having regard to any prejudice to the complainant or the respondent, would be equitable", this will only be done in "exceptional circumstances" . Meaning most definitely don't count on it.

Just some usual information to be tucked away for future reference. So you won't have to file it later under the category of "Things I wish I had known".

Gone, Gone, Gone ... You've Been Gone Too Long

For awhile there, it seemed like we were talking about nothing but the new RDSP non-stop and it felt like time to give it a break. But I now realize that it may have been gone a little too long. So, perhaps an update of sorts is due.

For those of you saying "RDSP? What RDSP?", I refer you to the RDSP Fact Sheet courtesy of the RDSP Blog.

For the rest of you hearty souls, I can advise that regulations for the Registered Disability Savings Plan are expected to be finished and passed in late June. Yep, that's this June as in this month.

Apparently, financial institutions have been waiting for the Regulations to come out before they begin adapting and creating their systems for the RDSP. This reluctance on their part makes sense in a way, I suppose, in that they would likely be pretty unimpressed if they began setting up their systems and then had to redo the work as a result of amendments to the Regulations.

It's also been noted that the whole issue of the implementation of the RDSP should lead to a natural follow-up around the issue of how Trust funds, in general, are treated. Given that the RDSP surpasses trusts for flexibility and the amount of assets allowed within the plan, it should be a logical extension for provinces to grant trusts the same flexibility and treatment as the RDSP, right?

But the devil is, as always, in the details and in this case, the details are exactly how the various provinces will choose to treat the RDSP.

So what's up in that regard in Nova Scotia?

So glad you asked. Unfortunately, the answer appears to be ... not a lot.

You might recall from our previous (numerous) discussions around the Henson Trust that the Department of Community Services (DCS) appears to take the position that no trust (including the Henson Trust) is valid in Nova Scotia when it comes to protecting eligibility for government benefits as from their point of view the beneficiary of the trust has access to assets and thus will be ineligible for benefits. And although I and many others beg to differ from their view when it comes to the Henson Trust, it's correct that, as the legislation is currently worded, discretionary trusts will not protect your child's access to government benefits.

The problem with your typical garden-variety discretionary trust is created by a regulation passed pursuant to the Employment Support and Income Assistance Act which reads as follows:

58 Trust Money Where a sum of money is set aside in trust for an applicant or recipient or a spouse or dependent of an applicant or a recipient by a court or a person other than the applicant or recipient, assistance shall not be granted where it is feasible for the applicant or recipient to obtain support for himself or herself or his or her spouse or dependent child from the sum set aside.

So that's the current situation. And to the best of knowledge, the Department has not made any move to change this regulation. Or given any indication of how they plan to deal with the RSDP.

The RDSP, you see, is a creation of the federal government. So now the feds get to play the 'good guys' while the Provinces have to pony up to the table and allow for fair implementation of the program. And although many provinces have either already done so or have taken some good solid steps in that direction, alas, to date, Nova Scotia does not appear to be one of them.

'So what's up with that?' I ask.

No Longer Just 'Proposed'

The Personal Directives Act has arrived.

In all its glory, so to speak.

A Hearty Welcome To The Proposed 'Personal Directives Act'

Update: In an effort to add some clarity that I feel may have been sorely lacking in this post, I dug around and came across some more succint information at The Legal Information Society of Nova Scotia.

Q - Are there different types of advance health care directives?

A - There are two basic types of advance health care directives,
a proxy directive and an instructional directive.

In a proxy directive, you appoint a person as your proxy and give him or her authority to make health care decisions for you should you become unable to consent to treatment.

In an instructional directive, you set out your wishes for what health care measures you want to be taken for you should you become unable to express your wishes yourself.

You may combine both directives in your advance health care directive, or you may choose to have only one type of directive but not the other.

In Nova Scotia, the law deals only with proxy directives, under the Medical Consent Act. However, you may still provide instructions to direct or guide your proxy in making the proper health care decisions for you.

Bottom line, although "living wills", which are considered instructional directives, are not yet recognized at law in Nova Scotia (although this will likely change with the passing of the proposed Personal Directives Act) they can still be useful devices, as in most situations, I think you will find most healthcare professionals will attempt to follow your stated wishes.

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Although some Nova Scotians currently make use of 'advance care directives' or 'living wills' in an effort to appoint another person to make decisions on their behalf, give advance instructions or express their wishes on future personal care decisions, presently in Nova Scotia there is no specific legislation governing such documents. This is unfortunate, given that such documents allow individuals, while they are able, to express their personal autonomy in decisions that will affect them in the event of their incapacity.

Currently, the Powers of Attorney Act authorizes a person by execution of a Power of Attorney to authorize another person (the attorney) to manage their estate (property). A Power of Attorney is referred to as an enduring Power of Attorney if it contains a provision expressly stating that it may be exercised during the legal incapacity of the donor. However, the Powers of Attorney Act does not specifically provide for Powers of Attorney for personal care.

The only type of advance health care directive currently available in Nova Scotia is found in the Medical Consent Act. This legislation allows for a person to pre-authorize another person to give consent or direction respecting medical treatment in the event the person becomes incapable of giving consent. However, it does not provide for personal care decisions, other than medical ones, and does not provide for a person to give instructions and express their wishes about personal care decisions, including medical care.

Thus, other than medical care, there is no specific legislative authority to allow a person to appoint another person to make decisions on matters of personal care, for example, with respect to residence, care and services, and matters of comfort. Nor is there any specific legislative authority to allow a person to give advance instructions or express their wishes on future personal care decisions.

And for those who have not made an authorization pursuant to the Medical Consent Act, there is no provision in law that allows for a substitute decision maker for medical decisions for incapable persons outside of a hospital unless there is a court appointed guardian for medical care outside of a hospital.

Many stronlgy believe that other forms of advance health care directives should also be legal in Nova Scotia to better meet the needs of some people and point to the fact that advance health care directives in a variety of forms are available under laws in other provinces.

READ MORE

'It's Your School'

Following are two letters from David Barrett to keep you aware of a advocacy initiative going on in the Halifax Regional Municipality. The thing is, though, I see no reason to keep this great idea limited to the Halifax Board.

What if every school board in the Province had a representative to speak on behalf of special needs students?

Hello Everyone,

Just want to update you in regards to requesting that a position be created for a representative to speak on behalf of students with special needs on the Halifax Regional School Board. Things are moving along well. The Nova Scotia Utilities and Review Board has informed me that they are unable to make a decision of this magnitude. They were also kind enough to forward our e-mails along to the Minister of Education, Karen Casey.

I have also contacted members of the Lib and NDP parties to inform them of the importance of this position if our students are to receive an education appropriate to meeting their needs. I strongly encourage you to express your views and concerns to you local MLA.

The more communication emphasizing the importance of having a Students with Special Needs Representative on the Halifax Regional School Board that crosses their
computers/desks, the better. I am asking that you work with me and contact your
MLA to educate them about this important issue.

If you didn’t have a chance to express your support for this position the first time I made this appeal, there is still time. You can send you letter via email to the
Honourable Minister Karen Casey at: EDUCMIN@gov.ns.ca .

In closing, I would like to thank all of you for supporting our children when it comes to have meaningful programming,

David Barrett , Parent Advocate.
dbarrettl@hotmail.com

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Dear Education Minister Karen Casey,

I am writing this e-mail in regards to am e-mail campaign I am presently leading. I have also made my MLA Berry Barnet aware of this campaign and who has shown his support and has agreed to speak to you in regards to this subject.

As a parent of a 14 year old special need student and a advocate for children and youth with special needs, who has worked diligently with the HRSB and government departments is regards to education of students with special needs. I find that policy and programming are not properly enforced or even in place in regards to the board it self and in order to fulfil the proper needs of all students to a successful and meaningful education there has to be changes made so that when policy and programming is designed in the HRSB that there is a representative around the table that dedicates to the issues of 20% of the HRSB's student population that are special needs.

Be it resolved that I hear by request for you, Karen Casey the Minister of Education to take a firm look at providing a seat on the HRSB and any other school board which has a special needs population of 15% or more to have a special needs representative.
There for all students within these boards would be evaluated equally when it came to programming and policies(not just the "normal" students).

Along with this I will be sending a copy of this e-mail and the letters of support to other education ministers and my MLA Barry Barnet. As of present I know that you have received approximately 35 e-mails in campaign regarding this issue, some of which were forwarded to you from the UARB board.

In closing I would like to thank you for this opportunity of making sure that our educational system provides a successful and meaningful education for all students, for this is the only goal in which will benefit the education system. I look forward to your response and I will continue correspondence with the other education ministers which I know will be questioning you in regards to this subject.

Thank-
You Parent Advocate,
David Barrett

So what we are going to do about it?



Following is a link to all of the school boards in the Province. Click on the link to your Board and let your thoughts be known. After all, if not you, than who?

Where Do You Turn?

Who do you go to if you suspect abuse of a loved one (or anyone else, for that matter) in a hospital, group home or residential care centre?

The Protection of Persons in Care Act came into force on October 1, 2007.** The legislation attempts to provide an extra safe guard from abuse for patients and residents 16 years of age and older who are receiving care in a Nova Scotia health facility (which includes hospitals, nursing homes, homes for special care or caring for persons with disabilities, group homes and residential centres) and requires health facility administrators and service providers (including staff and volunteers) to promptly report all allegations or instances of abuse.

Anyone else (that's you!) can report abuse by calling 1-800-225-7225.

You can find a few more things you need to know, such as the definition of the term "abuse" and exactly what comprises a "health care facility" here.

** Interesting side note. Although the Act was originally passed in 2004, it was not proclaimed (most Acts do not become effective until they are proclaimed) until October, 2007. Anyone else wondering what that three year delay was all about?