'Ride The Wave'

I thought this was too important to just leave in the "Places To Be" Section of the sidebar, so here you go. Now don't go saying I never do anything for you!

Family Forum - Securing A Bright Future

See you there, I hope!

Telling It Like It Is

Kudos to Dr. Brian Hennen for telling it like it is when it comes to life for persons with developmental disabilities in Nova Scotia.

I met Dr. Hennen and his colleagues for the first time the end of May when I took the Blue Jay to a transition clinic for young adults in Halifax. And I must say that I was very impressed with what they were/are doing - armed with the latest clinical guidelines for the care of adults with developmental disabilities, Dr. Hennen (a psychiatrist) and Dr. Clarke (a family doctor), joined by a supporting cast of a few other doctors and nurses offer a complete assessment of the young adult's physical and mental health, making appropriate recommendations to the family doctor for continuing care and, where necessary, referrals to other specialists.

Yeah, I was impressed - because really, how often do individuals with special needs (particularly adults) appear to be after-thoughts found on the side of the road, left to fend for themselves best as they can? Whether it be the health system, the criminal justice or elsewhere, this sadly appears more likely than not.

So I guess I shouldn't have been surprised to see Dr. Hennen's op ed in today's paper - an op ed which essentially sets out Nova Scotia's history (the good, the bad and the ugly) over the past five years in dealing with persons with developmental disabilities.

Offering both kudos and criticism where appropriate, Dr. Hennen notes the self-assessment undertaken with much fan-fare in 2008 by the Services for Persons with Disability (SPD) program, following which fewer than half of the resulting recommendations were fully implemented to the two reviews conducted by that same program following reports of abuse at a residential care centre in 2010 and the terrible treatment of an autistic young man in the Braemore Home in Sydney in 2011; both resulting in numerous recommendations, few of which were actually acted upon.

From research showing that half of the 156 adult Nova Scotians with developmental disabilities interviewed were unhappy with their living arrangements to the April 2011 report to the Standing Committee on Community Services concerning the inadequacy of residential options available to Nova Scotians with developmental disabilities (including the fact that one-third of individuals referred with developmental disability and psychiatric or behavioural challenges did not actually have mental illness, but were troubled by the inappropriate residential situations in which they had been placed). Kudos to the committee’s members who actually had the guts to admit their lack of awareness of the key issues.

From the Early Intensive Behavioural Intervention program for pre-school children with autism started in 2005 (for which demand far outstripped supply) that five years later finally opened its door to allow access for all such children to the highly successful Access to Community Education & Employment (ACEE) program, piloted in 2007, that offers a one-year program in life skills and vocational experiences to youth following the completion of high school, which was finally awarded secure funding in 2009.

Alas, Dr. Hennen fails to note the ACEE program (like so many) is only available to youth who reside in the Halifax Regional Municipality, leaving many, many who could benefit from it out in the cold (and most likely stuck in high school until they are 21 due to the lack of any other options).

Looking forward, Dr. Hennen notes that although that five years ago teaching programs for health professionals had little developmental disability content, the new undergraduate curriculum provides medical students with a minimum of 13 hours of such content over four years, with a further six hours of inter-professional learning about developmental disabilities planned. Family practice trainees will also have defined learning experiences in each of two years of training.

Leaving us exactly where, you ask?

I could do no better than offer Dr. Hennen's final words in reply.

As are other jurisdictions, Nova Scotia will be judged by how well it supports its citizens with developmental disabilities in their bid to live independently and contribute to our community. As care providers, teachers, advocates and government departments, we know we can do better. 

Cross-posted at Free Fallling

"Bring Unto Me the Little Children"?

As I said about the SCC decision in R. v. D.A.I. that we were discussing the other day ... good news. But, maybe, just maybe, some bad news, too.

Although the decision of the SCC was not unanimous (two of the seven judges "dissented", meaning they reached a different conclusion), that's not a problem, per se, from a legal point of view. There's very little point in appearing in (any) court and arguing for whatever a minority of the SCC had to say in any given case; the majority decision will carry the day.

But what I found interesting is the minority's analysis of the meaning (and effect) of the majority's decision.

The minority judges correctly noted that s. 16(2) provides that, if the challenged witness is able to communicate the evidence and understands the nature of an oath or a solemn declaration in terms of ordinary, everyday social conduct, he or she can testify (as a typical witness) under oath or solemn affirmation. However, if the challenged witness is able to communicate the evidence but does not understand the nature of an oath or a solemn affirmation, s. 16(3) provides that he or she may provide unsworn testimony on promising to tell the truth. But if the challenged witness does not satisfy either criteria, s. 16(4) provides they cannot testify.

Although the minority agreed with the majority that promising is an act aimed at bringing home to the witness the seriousness of the situation and the importance of being careful and correct, they disagreed with the proposition that a trial judge is not allowed to try to determine — in concrete everyday terms — whether, in reality, this actually occurs in the case of a particular witness whose mental capacity has been challenged. They reasoned that if such a witness was so disabled as not to understand the seriousness of the situation and the importance of being careful and correct, the fair trial interests of the accused are unfairly prejudiced.

In 2005, the following provisions were added to the Canada Evidence Act with respect to child witnesses.

16.1 (1) A person under fourteen years of age is presumed to have the capacity to testify.

No oath or solemn affirmation
(2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation.

Evidence shall be received
(3) The evidence of a proposed witness under fourteen years of age shall be received if they are able to understand and respond to questions.

Burden as to capacity of witness
(4) A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions.

Court inquiry
(5) If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.

Promise to tell truth
(6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.

Understanding of promise
(7) No proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.

Effect
(8) For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath.

You will note that s. 16.1(7) prohibits asking a child witnesses “any questions regarding their understanding of the nature of the promise to tell the truth”. As the minority pointed out, the empirical evidence before Parliament when this amendment was made related exclusively to children; no such studies were carried out with respect to adults with mental disabilities. A “don’t ask” provision was neither proposed nor adopted with respect to adults with intellectual disabilities. In other words, as in so many other areas of criminal law, this population simply wasn't considered.

The minority agreed with the majority that the words “on promising to tell the truth” in s. 16(3) had the same meaning as “to promise to tell the truth” in s. 16.1(6). But that being the case, the minority believed that the majority must have read the s. 16.1(7) “don’t ask” rule [applicable only to children) into s. 16(3) [applicable only to mentally challenged adults] in order to read down the words “promising to tell the truth” in s. 16(3), and thus treated adults with mental disabilities as equivalent to children without mental disabilities.

The minority went on to find that just because psychiatrists speak of persons with mental disabilities in terms of mental ages does not mean that an adult with mental age of six is on the same footing as a six‑year‑old child with no mental disability whatsoever as a six‑year‑old with the mental capacity of a six‑year‑old does not suffer from a mental disability. No evidence had been provided to the court to suggest this equivalence and a court can only take "judicial notice" of alleged “facts” that are either notorious or easily verifiable from undisputed sources.

I find this analysis particularly interesting because one of the points made in an analysis of this decision by Laurie Letheren, a staff lawyer at the ARCH Disability Law Centre, is how inappropriate it was that throughout the history of R. v. D.A.I. the witness and other adults with intellectual disabilities were compared to children. She uses the example of the court accepting, without question, the evidence of the psychiatrist (who never even met the witness) that she “possessed the mental age of a three- to six-year-old”.

To me, this is wrong at so many levels, but Ms. Letherin comments on its inappropriateness, given that the young woman in question had attended high school, was involved in her community and had 19 years of lived experience, noting that such characterization of adults with intellectual disabilities needs to be challenged if the criminal justice system is to be truly inclusive.

I can certainly agree with Ms. Letherin that the 19-year-old witness could not, mentally, be the same as a three to six-year-old because she had had the life experiences of a 19-year-old, not a six-year-old; no matter the mental level those experiences had been processed at.

However, it strikes me that if we choose to look at this case through that lens, we can't ignore what is essentially the same issue (in a slightly different context) as that pointed out in the minority decision.

"Can You Promise to Tell the Truth, the Whole Truth and Nothing But the Truth?"

Long-time readers might recall a post from way back in the way back where I compared the right and ability of individuals with mental illness to represent themselves in court, the right of an accused with schizophrenia to  represent himself at trial and the appropriateness of guardianship.

What do these various subjects have in common?

To me, they both examine the question (albeit in different contexts) as to whether and how much it is acceptable for society to act to "protect" individuals with disabilities. And although not so many years ago, that would have been hailed by most as a lofty goal, it seems to have fallen into disrepute more recently. As if attempts to "protect" the disabled, much like we attempt to attempt to "protect" our children, is somehow insulting and degrading to them.

And yet, although the concept of protecting disabled person from both themselves and others, so to speak, will no doubt be quite off-putting to some, I have to think that it does have a valid place in certain contexts and certain circumstances. Admittedly, in an ideal world, such a thing might well be not necessary. But who amongst us will really argue that we live in an ideal world?

Whether we are considering a defendant's right to represent himself in court or when (if ever) a guardianship order might be appropriate, we are really talking about the same thing. Do we treat individuals with disabilities like everyone else? Do we accord them special 'privileges'? Or do we place special 'burdens' or 'restrictions' on them?

And more importantly, can those questions be answered, can all the above examples be analyzed in a logically consistent way? Or is better to proceed with a haphazard, whatever 'feels right' approach?

Wherever you might come down on those particular issues, a recent decision from the Supreme Court of Canada has certainly advanced the rights of people with intellectual and mental health disabilities to more fully access the criminal justice system.

The case involved a young woman with an intellectual disability who had accused her mother’s partner of sexually abusing her. Although at trial the young woman demonstrated that she could communicate the evidence and promised to tell the truth, the trial judge questioned her on her understanding of the nature of truth and falsity, of moral and religious duties, and of the legal consequences of lying in court. [Can you say abstract?} Unsatisfied with her answers to these questions and relying on the opinion of a psychiatrist who had never even spoken to the young woman, the court found that she could not give her evidence and the case against the accused was dismissed.

To give a better understanding of what happened here, I am going to provide you with the relevant sections of the Canada Evidence Act. Pay particular attention to s. 16(3):

16. (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
(a) whether the person understands the nature of an oath or a solemn affirmation; and
(b) whether the person is able to communicate the evidence.

Testimony under oath or solemn affirmation
(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

Testimony on promise to tell truth
(3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.

Inability to testify
(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.>

Burden as to capacity of witness
(5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.

You will notice that under s.16(3) [above], if a person’s capacity to give evidence is challenged and the judge finds that person does not understand the nature of an oath or solemn declaration, they can still give evidence if they can communicate the evidence and promise to tell the truth. The problem is that the courts have routinely gone beyond that requirement and established a practice of placing an additional burden on witnesses whose capacity is challenged, requiring them to demonstrate that they understand what it means to promise to tell the truth by explaining such abstract terms as “truth” or “lie”.

Fortunately the matter eventually made its way to the Supreme Court of Canada (SCC) , where the majority of the Court found that the trial judge had erred when he required the young woman to demonstrate that she understood the nature of a promise to tell the truth. The majority of the Court concluded that when a witness’ capacity to testify is challenged there are only two requirements that the witness must meet:

1. the ability to communicate the evidence and
2. promising to tell the truth.

Additionally, in determining the proper steps that a judge is to take in such circumstances, the SCC set out a very common sense (and disability-friendly) process to be followed, including that:

•  the primary source of evidence for a witness’s competence is to come from the witness, herself;  
• questioning an adult with mental disabilities requires consideration and accommodation for her particular needs, with questions to be phrased patiently in a clear, simple manner; 
• given that persons familiar with the proposed witness in her everyday situation will understand her best, they may be called as fact witnesses to provide evidence on her development; 
• although expert evidence can be adduced, preference should always be given to expert witnesses who have had personal and regular contact with the proposed witness; and
• the inquiry into the witness’s ability to communicate the evidence will require a trial judge to explore in a general way whether she can relate concrete events by understanding and responding to questions and it may be useful to ask if she can differentiate between true and false everyday factual statements.

So, good news, that. Progress is, after all, progress.

But, unfortunately, like so many things in life, there's both "good news" and "bad news" to be found in this decision.

The "good news" is, I believe, pretty clearly set out above. The 'bad news" is only found by digging a little deeper and touches more on a philosophical point. But I do believe you might be better served if I leave that discussion for another day.

For now, let's just sit with our victory.*

* Without commenting on the fact that it's pretty sad when what constitutes a "victory" merely sets individuals with intellectual disabilities on the same playing field as every other citizen in this country.

** By the by, and just as another aside, I might point out that out of the Justices involved in this decision was our old friend, Justice Cromwell. 

Oldies But Goodies

Check out this list of  Psychology For You* parenting videos available from the IWK.

And don't forget to check out their list of Upcoming Presentations!

• An Overview of a Treatment Approach for Children with Autistic Spectrum Disorder (Feb 9/09)
• Parenting the Young Worrier: Tips and Strategies (Jan 12/09)
• Parenting Youth with Chronic Illness (Nov 24/08)
• Early Detection and Treatment of Children with Autistic Spectrum Disorder (Oct 6/08)
• Too Scared to Speak: Helping Your Child Overcome Shyness or Selective Mutism (Sept 22/08)
• Helping Children Cope with Anxiety and Fears
• How To Talk To Teens About Weight in a Weight Obsessed World (Dec 7/07)
• Seeking Common Ground: Managing Challenging Adolescent Behaviour (Nov 20/07)
• Hands-On Strategies for Helping Children who have ADHD (Oct 23/07)
• Getting Your Children to School when they Refuse to Go (Sept 18/07)
• Stress Management and Relaxation (Jun 12/07)
• The Stepparent - Stepchild Relationship: Strategies For Helping Youth Adjust To A New Family (Apr 17/07)
• "Mom, My Stomach Hurts!": Helping Children With Recurrent Pains (Jan 16/07)
• Navigating the School System: The Art of Advocacy for Parents of Children with Special Needs (Oct 3/06)
• When Your Children Fight (Sep 12/06)
• Parenting Children With Behavioural Difficulties (Apr 25/06)
• Eating Disorders: Why Treat Children Differently Than Adults (Feb 28/06)
• Treating Childhood Obesity: What Parents and Professionals Can Do To Help (Jan 10/06)
• Sleep During the Early Years: Common Difficulties and Strategies to Help (March 2009) 

* Psychology for You is an education series provided by IWK Psychologists as a free, public service to the Maritime Community. The videos above are recordings of previous presentations from January 2006 - March 2009.

Happy Days

Remember the story I shared with you last month about what happened when the LeHave Corporation tried to purchase a property in Bridgewaer that was ideally-suited for use as a group home, particularly for three individuals that had lived together for over 18 years?

How afer the neighbours started complaining, the Town of Bridgewater decided that the property couldn't become a group home because that was an "institution", which would violate zoning bylaws that allowed for "low density residential housing" aka single family dwellings?

As I told you then, following a groundswell of public support from across the country and the pointed suggestion that the Town's position might well violate Article 9 and Article 28 of the UN Convention on the Rights of Persons with Disabilities, Bridgewater eventually agreed to change its zoning bylaws to allow the new group home to open.

Well, I'm now very pleased to report that Denice Russell, Melisa Knox and Kim Fairbanks, who have lived together as sisters for 18 years have moved into "Compassion House", as the property is now known. Which made my day feel a little bit brighter.

Go read the story and see for yourself.

And then say those nine words slowly, savouring every one of them ... the UN Convention on the Rights of Persons with Disabilities.

On The Lighter Side

Bullying.

Something that's all too common for children with special needs. And definitely a topic with no "lighter side".  But have you noticed that the topic seems to be all the rage lately? Yeah, I know, kind of hard to miss.

There's a post a'percolating in my head on just this - I know there is because I seem to be constantly finding and saving interesting links on the subject lately.

But not now. No, not today.

Today feels feels way too much like a beautiful summer today to delve into the dark depths of that subject.

So instead, because it is such a beautiful day (and because the school year will soon start winding down), I offer you the lighter side of special education - courtesy of Wrightslaw.

Sure, some of the wording is a littte different - for example, IEP = IPP - and "due process hearings" are a cocept that a parent in Nova Scotia might well drool over but when you got right down to it, really, special education is special education no matter where you go.

The Lighter Side of Special Education: The Due Process Hearing

The Lighter Side of Special Education: The IEP

The Lighter Side of Special Education:  Parents & Kids

Lighter Side of Special Education: Special Education: Mediation

The Lighter Side of Special Education: My Law Practice

And last but most certainly not least:

Education Buzzwords: Image and Reality

So go ahead, have a chuckle. Laugh it up a bit.

Something tells me that other topic will still be around tomorrow.

Worth Your While

I'm thinking this presentation might just be worth your while to attend.

On Tuesday, May 29th, Dave Shannon, the CEO of the NS Human Rights Commission will be giving a presentation on Human Rights Legislation in Nova Scotia.  This is being hosted by the LAUNCH program.

I went to a Human Rights presentation a few months ago but, sadly, wasn't that impressed. However, I hold out more hope for this one because Dave not only has the legal knowledge [we went to Law School together although I don't really know him, except to see (and read about) him], but he is also a person with a physical disability. And he has done some absolutely amazing things, both in his own life and for promoting the rights of persons with disabilities.

From the excerpt on the presentation I received today:

Please join us as we welcome David Shannon—CEO of the Nova Scotia Human Rights Commission. David is the author of Six Degrees of Dignity: Disability in an Age of Freedom. He has practiced Law in Ontario. David is a person with quadriplegia as a result of a spinal cord injury at the age of 18. He can provide information regarding Human Rights legislation in Nova Scotia.

So, will I see you there?

DATE:  Tuesday, May 29th, 2012

TIME: 6:45pm to 8:30pm

LOCATION: The Club—St. James Anglican Church at the Rotary

Please RSVP to Kim Clarke

kim.clarke@iwk.nshealth.ca or 902-470-70

Overwhelmed and Underpaid

I am just passing along this email received from the Halifax Association for Community Living.

Because it's a very important issue.

Hi Families and Friends,

One more email before I get out of your hair today! This story is about Toronto, where the waitlist is 8 months for housing. This is our story in NS and even worse. The housing options issue is of monumental proportions with 650 people on the waitlist in Nova Scotia, and a 4 to 5 year wait. The comments on this news story are very telling as well.

You may want to forward this on to your MLA, the premier, the party leaders and the minister of Community services, and share your story as well. I will list the emails for these people:

Percy Paris NDP Waverley-Fall River-Beaver Bank percy@percyparis.ca

David Wilson NDP Sackville-Cobequid dave@davidawilsonmla.ca

Keith Colwell Liberal Preston colwelkw@gov.ns.ca

Michèle Raymond NDP Halifax Atlantic mhraymondmla@eastlink.ca

Howard Epstein NDP Halifax Chebucto hepstein@ns.aliantzinc.ca

Leonard Preyra NDP Halifax Citadel-Sable Island preyra@eastlink.ca

Diana Whalen Liberal Halifax Clayton Park whalendc@gov.ns.ca

Graham Steele NDP Halifax Fairview graham@grahamsteele.ca

Maureen MacDonald NDP Halifax Needham mmacdonald@navnet.net

Mat Whynott NDP Hammonds Plains - Upper Sackville mat.mla@ns.sympatico.ca

Andrew Younger Liberal Dartmouth East info@andrewyounger.ca

Trevor Zinck Independent Dartmouth North tzinck@ns.aliantzinc.ca

Marilyn More NDP Dartmouth South - Portland Valley marilynmoremla@ns.aliantzinc.ca

Darrell Dexter NDP Cole Harbour ddexter.mla@gmail.com; premier@gov.ns.ca

Becky Kent NDP Cole Harbour-Eastern Passage kentbj@gov.ns.ca

Kelly Regan Liberal Bedford-Birch Cove kelly@kellyregan.ca

Denise Peterson-Rafuse Minister of Community Services DCSMIN@gov.ns.ca

Take care,

Yvette Cherry
Halifax Association for Community Living
Family Support Facilitator
www.halifaxacl.com
463-4752 Ext.2

HACL Mission Statement
“We believe that all people should be accepted as responsible, contributing members of their family and society.”

"... To Each According to His [or Her] Need"

Show of hands, please.

How many of us have had dealings with any of the programs under the Province's Services for Persons with Disabilities Program?

It might have been Direct Family Benefits (formerly known as In Home Support), Alternative Family Support or Independent Living (formerly known as Supported Apartment). Or perhaps it involved Small Options, Group Homes/Developmental Residences, Residential Care Facilities, Adult Residential Centres or Regional Rehabilitation Centres.

Anyone? Anyone at all? Yeah, I thought so.

For those of us so blessed, how many have been told that the amount of respite available to your family member is capped at a certain amount or that the Department of Community Services will only pay $10 per hour for respite workers and, if yours happen to charge more, well, so sorry but you will just have to make up the difference yourself?

I see those heads nodding.

How about this one - anyone ever been told (and I mean told) that the government is not obligated to provide these programs, that they do so voluntarily. With the implicit undertone being Do. Not. Rock. The. Boat. Do. Not. Push. Us. Too. Far. Or. You. Will. Find. Yourself. Without. Any. Help. Whatsoever.

Well, then, you're sure to really appreciate this March, 2011 decision from the Nova Scotia Supreme Court.  Check it out. You're going to love it. Trust me.

But first, let me ask you this - how many times have I suggested that we need to help one another, to stand and work together when it comes to getting the system to meet the needs (and respect the rights) of individuals with disabilities and their family members? I only ask because, to me, this decision is a prime example of just how (and why) that works.

Anne Boudreau went to court to get her son and herself the help they desperately needed, the help the government refused to provide. But in winning a victory for Brian and her family, she also won a victory for you. For me. For all of us. Which explains exactly how I view the world - anything I do for one of my children, I do for other children. And anything I do for another child or family, I do for my children and family.

Brian Boudreau has autism and requires 24/7 care. To assist with this, his mother received money to pay for part-time and full-time personal care workers from the Services for Persons with Disabilities (SPD) Program. But the Boudreaus were unable to keep these workers because they couldn't pay a sufficient hourly rate. Needless to say, this constant turnover was not in Brian's best interests, particularly given his very high level needs.

Receiving funding of only $10 and $12 per hour respectively for part-time and full-time workers [the hourly rates set by the Department, which have remained unchanged since 1998], when the average hourly wage in their area was $14 per hour plus benefits, it shouldn't have surprised anyone when they went through seven workers in the span of one year.

Her request for extra funding to allow her to pay $12 and $15 respectively to the part-time and full-time PCWs denied, 

["As you know the Direct Family Support program bases its respite amount on $10 per hour. Unfortunately Services for Persons with Disabilities (SPD) staff have not been authorized to increase this hourly amount at this time. In regards to the possibility of increasing your monthly amount, in order that you can use the additional funding to pay extra per hour, SPD has not been authorized to allow any increases which result in payments exceeding $2200 per month. As Brian’s current respite allowance already exceeds $2200 per month no increase may be authorized at this time."] 

Mrs. Boudreau appealed. And although initially unsuccessful, she was successful at the second appeal level, to the Assistance Appeal Board.

The Board found that although neither the directive [in November, 2009 a directive had been issued from the Director of the SPD program limiting DFS program approval levels for respite funding to $2200 per month] nor the policy [which also limited DFS respite funding to $2200 per month] supported the appeal, neither was there any Regulation under the Act to support the directive or the policy. [You can find a discussion of how that interaction works from a legal point of view here.]

Instead the Regulations provide a guide to the intention of the Act, which allows for variance from policy and directive when it was in the best interest of the client. Sound familiar?

Not surprisingly, this result did not please the Department, who promptly took the matter to court.

Because the Board had found that Brian was entitled to the additional funding under the Employment Support and Income Assistance Act (ESIAA), one of the issues before the court was which of the three possible pieces of legislation [the Employment Support and Income Assistance Act (ESIAA); the old Social Assistance Act ("SAA"), which was effectively gutted when the ESIAA was proclaimed; or the Homes for Special Care Act] govern the SPD Program. Or, perhaps it was as the Department argued, that the Program is something done out of the goodness of their heart, with absolutely no legislative authority?

For those of us less legally inclined, I am going to provide the summation of what this case actually decided here. Those with interest can read on to see how the court came to the conclusions it did.

In other words, pay attention. Here's the important part.

In the words of Mr. Calderhead*, the Boudreau decision is very important for at least four reasons.

1. It settles, once and for all, the question of whether the SPD program is authorized by legislation (it is!) and which legislation (the Social Assistance Act and the Municipal Assistance Regulations).
2. It makes it clear that there is nothing voluntary about the SPD program. That is, once eligibility for services has been shown/accepted, a legal entitlement arises automatically.
3. Further, as with any other “assistance” under the Social Assistance Act, eligibility triggers not just a right to that assistance but one that is to be immediately provided.
4. Generally, the SPD Program will fall under the ‘special needs assistance’ provisions in the Social Assistance Act and, in situations where the legislation does not stipulate a maximum amount for such assistance, the Department should be paying “reasonable” amounts sufficient to meet the need.

Mr. Calderhead also notes that this decision establishes that the Department of Community Services must provide a per diem rate that is reasonable. In the Boudreau case, that was found to be $15.00 per hour for a full time employee, and $12.00 per hour for a part time employee.

Now, for those of you brave enough to venture further, you can READ MORE.

RDSP Survey Results

A while back, PLAN conducted a survey about people's experiences and concerns with the RDSP. The resuts of that suvey can be found here.

And I'm happy to say that given the few changes that were announced to the RDSP in the last budget, perhaps they are making headway.

One. Step. At. A. Time.

The More Things Change...

I was having a conversation with another parent yesterday about the education system. And she relayed a comment from a friend of hers to the effect that we are still fighting about the same issues as we were 20 years ago.

I don't know about the 20 year part but I do know I first brought this story to you back in July, 2008 - nearly four years ago.

Subject: Family needs support

Importance: High

There is a young woman who lives in the community with another family. She has lived with this family for over 5 years and there are extra supports provided to meet her needs. Community Services agree that she has made progress. She wants to stay there. Her own family wants her to stay there. The family she lives with wants her to stay. Her doctor has written to Community Services to say she should stay.

Community Services are opening the new institution in Lower Sackville next month. They have told the Mom that the young woman must move to the institution when it opens. They have told her, and repeated it today, that they will withdraw funding if she refuses the move.

Ring a bell?

Well, the good news is that that situation was resolved. In 2008.

The bad news? It's back. Again.

Brenda Hardiman's 24 year old daughter is diagnosed with a organic brain disorder, conduct disorder, epilepsy and right sided cerebral palsy. This is her story:

Brenda Hardiman's daughter has lived with an alternative family, for 10 years, through the Persons With Disabilities Program, Nova Scotia Department of Community Services. Four years ago the Nova Scotia Department of Community Services tried to force her move to an institution in Lower Sackville, Nova Scotia. With the assistance of the Nova Scotia Association for Community Living we were able to stop this from happening.

We are at the same place, four years later. They are forcing her, once again, and this time I'm afraid they're winning. I don't know if I have the stanima to go through this yet again. To go head to head with the Province again. It's so stressful.

My daughter's alternative family wanted to provide some separation between their work and personal lives by continuing to care for my daughter in a home for special care rather than in their home as they have cared for people, in their home, for 18 years. The Nova Scotia Department of Community Services denied their request to license them in this capacity. Their justification was that they had to put submit a request for proposals. But since there is a mortitorium on this type of care, they couldn't. This is their underhanded way of institutionalizing my daughter.

As a side comment, I picked this situation up in 2008 from an email I received. I picked it up today via FaceBook. Perhaps that's a step forward, in that we now have social media to spread our message.

But back to Brenda's story. What are we going to do?

In the words of Laurie Lawson, President of CACL:

NS is the one province that openly endorses institutions and feels they are appropriate. They are forcing individuals into institutions rather than providing the supports to live in community. Brenda received word yesterday that her daughter will be institutionalized May 3rd. Enough!! Time to mobilize and stop this practice in NS!

I'm sad to say that at this point in my life, (or at least this week month),  I just report the news. [Yeah, yeah, I know. I've barely been doing that lately.] Do with it what you will.

What's Up Your Sleeve?

It looks like the UN Convention on the Rights of Persons with Disabilities might have been put to good use in Nova Scotia this past week.

I've said before that, in my opinion, the best use of that Convention might be in the moral suasion if offers advocates when dealing with government officials. At all levels of government, apparently.

At least that's the way I read the news that Bridgewater has agreed to change its zoning bylaws to allow LaHave Manor Corp. to open a new group home.

In case you're not familiar with the story, the LeHave Corporation intended to purchase a property that was felt to be ideally-suited for use as a group home (single level, wide hallways, open living room and wheelchair-adapted), particularly for three individuals that have lived together for over 18 years. The plan was for these individuals to move together to this home.

Well, that was the plan until neighbours started complaining and the town of Bridgewater decided that the property couldn't become a group home because it violated zoning bylaws. Zoning bylaws that allow for what's known as "low density residential housing". More commonly known as single family dwellings.

Apparently, the Town viewed three people living together in the community as an "institution". Which means that either the Town of Bridgewater has even less of a concept of what community living means than the Dept. of Community Services or they simply didn't want to upset the sensitivities of their good citizens who are more ... sensitive.

At any rate, what I found most interesting about today's new story was these comments from the Town's press release:

"Bridgewater prides itself on being an inclusive community and as such wants to incorporate the intent of the United Nations Convention on the Rights of Persons with Disabilities," the release said. "We acknowledge that the rights of disabled persons are equal to the rights of any other person in our community."

Which makes me think that, in additional to the groundswell of public support from across the country, someone did some smart advocacy work by pointing out to the good Council that, like all levels of government in Canada, it, too, is bound by Article 9 and Article 28 of the UN Convention.

A handy little document to have up your sleeve, no?