'Unfit Solely Based on Their Disability'

A few years ago, when a lot of my work involved digesting child protection cases, I toyed with the idea of writing a blawg post on the issue of parents with disabilities whose children had been taken into care by the Province. 

Actually, I did more than toy with the idea; I began keeping track of those type of cases when they crossed my desk and started actively searching for ones from other provinces. In fact, I may still have that research around here somewhere although I would most likely be hard pressed to find it now.

Obviously, I never did get to that blawg post. Mainly because it became clear that the issue was huge and it was going to take no small amount of research and writing to put something together. And I was, in all fairness. rather occupied with other things at the time.

But the issue still fascinates (and disturbs) me from both a legal and parental point of view.

The test in such a situation is always (supposedly) the "best interests" of the child. Parents do not have a right to parent their children. Rather, children have the same basic rights and fundamental freedoms as adults and the additional right "to special safeguards and assistance in the preservation" of their rights and freedoms. And the presumption is that a child's needs will be best met in the care of his or her own family. 

But a presumption is not a certainty. Thus, parents are given legal "responsibility for the care and supervision of their children" and children are only to be removed from that supervision "when all other measures are inappropriate".

So at what point does it actually become the case that parents, due to their disability, cannot properly care for their child? And is it possible that children would ever be taken away from their parents due to some form of systemic discrimination against persons with disabilities?

But then again, can it even be that simple?

There are physical disabilities and there are intellectual disabilities. And there are individuals who have both. And, of course, most importantly, each case will should turn on its own unique fact situation, right?

All of which takes me to this report out of the US setting out the following issue:

A federal agency is warning the White House that more protections are needed to ensure the parental rights of those with disabilities.

Even as an increasing number of Americans with special needs choose to become parents, laws across the country routinely undermine their rights, according to a National Council on Disability report which was sent to President Barack Obama on Thursday.

In two-thirds of states, courts are allowed to deem a parent unfit solely based on their disability. And, disability can legally be taken into account in every state when assessing what’s in the best interest of a child, the council found.

The key, of course, is found in that last paragraph.

In two-thirds of states, courts are allowed to deem a parent unfit solely based on their disability. And, disability can legally be taken into account in every state when assessing what’s in the best interest of a child, the council found.

I have no issue with the second sentence - that "disability can legally be taken into account in every state when assessing what’s in the best interest of a child".

But it's one thing to take disability into account (just as you would take into account other factors, such as the support available to a family or parenting style) and completely another to disqualify a person from parenting their own child just because they have a disability. That, I would submit (and I'm sure you would agree) smacks of discrimination.

Apparently the National Council on Disability agrees. And the numbers are staggering.

Currently, some 6.1 million children in the United States have parents with disabilities. They are significantly more likely than other kids to be forcibly separated from their parents, the federal agency found.

Estimates suggest that among parents with intellectual disabilities, removal rates are as high as 80 percent. Similarly high rates are seen among parents with psychiatric disabilities.

Meanwhile, the council found that people with special needs are more likely to lose custody of their children after divorce and have more difficulty adopting kids.

Although I'm not aware of any Canadian province providing that the courts are allowed to deem a parent unfit solely based on their disability, I have a hunch that the situation is not that different in this country, albeit on a somewhat smaller scale. And although it would be really interesting to see the numbers for Canada, to the best of my knowledge, no one is actually paying attention. Or, at least, no one is compiling those statistics.

In the US, the National Council on Disability is recommending that new laws be implemented to protect the rights of parents with disabilities and that social services agencies work to better understand and accommodate parents with special needs.

Does that sound like too much to ask?

Light Dawns on Marblehead

As a follow-up to that July post concerning families in Indiana who were forced to legally admit neglect in order to obtain the mental health services their children required, I am pleased to report that state officials have unveiled a plan to provide such services for mentally ill or developmentally disabled children without requiring parents to plead guilty to neglect.

"This is a small, but important and complex population that presents a big struggle for many families. For decades, the only way these children have been able to get care is by entering the court system as a juvenile delinquent or to have their parents claim neglect so the child can become a ward of the state. And everyone agrees -- from state agencies, to prosecutors, to judges, to probation officers, to mental health experts, to families -- that is not the way to help these kids." -- DCS Chief of Staff John Ryan

Which, I suppose it was going to take strong pressure from somewhere to change the situation given that the state's Department of Child Services had publicly stated that the agency would not change any of its policies (those being the policies requiring parents to go through such a heart-breaking charade) even after a Court of Appeals' decision stating that a parent in such a situation should be "applaud[ed]", not "condemn[ed] ... through coercive action."

It would appear that in Indiana, at least in regard to this situation, light has finally dawned on marblehead. We can only pray (or demand) that it will also dawn elsewhere.

Paralympic Athletes Writing Next Chapter in Human Story

Reading the latest issue of the IWK's Village Voice this morning, I was struck by this piece by Warren Reed, a human rights activist in Halifax.

All 20 of the fastest times in the 2012 Boston Marathon belong to wheelchair racers. In fact, Canadian wheeler Joshua Cassidy (1:18:25) had time for a nap while waiting for Kenyan runner Wesley Korir (2:12:40) to finish. A luxurious 54 min-utes, to be exact. Gravity? The course does drop 425 feet in 26 miles — a barely noticeable three-tenths of one per cent grade — but that benefits runners and wheelers alike.

Meanwhile, the course has some daunting uphill stretches, and dragging an extra 15 pounds of wheelchair up Heartbreak Hill surely offsets any advantage from turning potential energy kinetic.

But this is apples and oranges, angels and pins. One shouldn’t be confused by the artificiality of divisions into thinking there is a single winner of the Boston Marathon, and then some women and then some wheelchairs. They’re all committed athletes, running the same race differently.

People with disabilities have a special perspective on difference — we are, in many ways, defined by it. Many of us embrace our differences as extraordinary gifts.

Some would say Stephen Hawking won a Nobel Prize in spite of his condition. People with more imagination might wonder if it’s because of his condition. Conventional thinkers see him as suffering from Lou Gehrig’s disease. (Lou, by the way, was not a bad ball player.) I’d say Stephen Hawking is a pretty spectacular physicist and that there’s a decent chance his achieve¬ment is connected to his physical characteristics. At the very least, his circumstance provides an unusual perspective on the universe.

You can read the rest of the piece by clicking on the Weekly Update: September 7, 2012 link on this page. I would suggest that you do.

One-Stop Shopping

Back to school. Ugh.

Back to school shopping. Again. Ugh.

Although, personally, I would take the shopping any day over actually having to send my kids back and start yet another year (this will be year 15 for my oldest) of "advocacy".

But do not despair. Nice person that I am, I have put together a list of ammunition documents you really should be familiar with as we start another school year.

I've tried to bring some order to the chaos by organizing them by topic but ... well, really, you wouldn't want me to take all the fun away and make it too easy, would you? Just think of it as digging through the bins at Frenchy's ... you never know when you will find a great bargain that fits you just right!

Special Ed in General
Special Education Policy Manual aka "The Bible" (2008)  -That's right, this document should be your Bible for just about any issue you might face with your school, your Board or the Department.

Life Skills: Supporting Student Success (2009) - A little-known document that can be a life-saver when your school tells you that they're very sorry but your child MUST take all these academic courses to get the credits necessary to graduate. It's not their fault; blame the Department.

OR you could just pass over this document, which sets out exactly how "life skill" credits can be and are recognized. Look at that ... a How To Guide for your school!

Increasing Learning Success (2008) - Although written more or less as a how-to guide for reorganizing high school to keep typical students engaged, there are a fair number of ideas discussed that could be very helpful for students with special needs.

Program Planning Process: A Guide for Parents (2006) - This document basically pulls out (and slightly expands upon) the portion of the Special Education Policy Manual (see above) dealing with the program planning process.

"Just how do I go about getting my child an IPP?", you ask. Look no further...

Supporting Student Success: Resource Programming and Services (2006) - Written to provide direction to school boards on the role of resource teachers and their expected competencies and to assist in the development of related policy and procedures, it is also intended to serve as a framework for professional development for resource teachers, classroom teacher and school administrators regarding the resource role in the program planning process. 

In other words, find out just how Resource is suppose to work.

Respect for Diversity: A Planning Resource (2007) - This resource came out of the Minister's Response to Addressing Bullying in Nova Scotian Schools: A Student's Perspective in 2003. (The more things change ... no?)  It's intended to be a resource for students to use to support the advancement and promotion of diversity ... meaning it's to be used a resource to assist in the planning and delivery of a school-wide Respect for Diversity Day. Never heard of such a thing? Don't feel bad ... neither have I!

It just might just be worth checking out, however. Challenge your school and see if they're up to holding their very own (and chances are, very first) Respect for Diversity Day.

Fact Sheets (Pretty much speak for themselves)
Adaptations - Strategies and Resources

Assistive Technology - Access to Learning

Inclusion - Supporting All Students (Fact Sheet)

Program Planning - A Team Approach (Fact Sheet)

Transition
Transition Planning for Students with Special Needs: The Early Years Through to Adult Life (2005) - Did you know that your child might well be entitled to an Individualized Transition Plan? But wait, what the heck is a Transition Plan? And when is this so-called "transition planning" suppose to occur?

SLP and School Psychologist Guidelines (Some hidden goodies)
Speech-Language Pathology Guidelines

School Psychology Guidelines

Student Records
Student Records Policy

Discipline
Provincial Code of Conduct and School Code of Conduct Guidelines (2008)
This. Document. Is. Very. Important.

The regulations made under the Education Act require the Minister to create a Provincial Discipline Policy (aka the Provincial Code of Conduct). All school boards are mandated to create Codes of Conduct (discipline policies) based on the Minister's Policy and each individual school is obligated to create its own School Code of Conduct. Neither a Board's nor a school's Code of Conduct can contradict the Minister's Policy.

Now listen carefully - the Provincial Discipline Policy was changed in a very significant way in 2008. Prior to that time, no provision was made to take into account a student's stage of development and special needs when meting out discipline. In fact, there was a chart which very clearly in black and white laid out specific behaviour and the consequences of such behaviour - if you do this, you will be suspended; if you do this, the police will be called in; etc.

Thankfully, that is no longer the case - the Provincial Policy clearly states that consequences for misbehaviour must be "appropriate to a student's stage of development and in consideration of the student's special needs". It is further stated that "consequences must make sense to a student as much as possible." The School Code of Conduct policy also supports the development and implementation of a comprehensive school-wide PEBS (positive effective behaviour supports) program. Behaviour is divided into "disruptive" and "severely disruptive" and a range of possible consequences are provided for various behaviours within these categories.

All of the above are very significant changes. Very significant changes that, one would presume, were brought about, at least in part, by a Charter challenge against the Province's discipline policy many years ago.

The case never made it to court and the parents involved could be forgiven for thinking it had all been for naught and no progress had been made. Or, at least, they no doubt thought that until they saw that some of the very changes they were requesting have been incorporated in the Province's Discipline Policy. We haven't made it as far as some other provinces (in particular, Ontario, includes the need to recognize a student's special needs when it comes to discipline within the regulations made under their Education Act) but we have made progress.

So the next time an administrator tells you that they have no other choice, their hands are tied, they have to suspend your child just as they would any other student who had (fill in the blank) .. you might want request both your Board's and the school's Code of Conduct and compare them to this document.

Time-Out Guidelines (2010) - Check out that date ... anyone care to hazard a guess as to the why behind these Guidelines? As so very often happens, change only seems to occur when parents GET LOUD. 

** By the way, did you notice that the practice of using time out is to be decided through the Program Planning Process as set out in Policy 2.2 of the Special Education Policy Manual? Which, to my way of thinking, requires prior parental consent (or at least knowledge) of its intended use.

Guidelines for the Use of Student Restraint (2011) - Need to know what the school can and can't do to restrain your child? Need to gently remind them that physical restraint is to be considered a last resort and only to be used when someone's safety is at risk?

IPP Appeals
School Board and Ministerial Appeal Guide (2000) - Sets out the procedure to be followed when a parent appeals an IPP; first at the school board level and then at the Department level. And, remember this, although you may not have a very good chance of success at the Board level (cough, cough), your chances improve significantly should you convince the Minister to grant you a provincial appeal.

Tuition Support
Tuition Support Program - If your child has a diagnosed Learning Disability, ADHD or autism* and you  are not familiar with the TSP, then you need to be. And take heart, the program has become a little looser than it previously was.

* Unfortunately you are more likely to find a school able to accommodate your child if they have a LD or ADHD, then if they have autism.

Guidelines Regarding Entering Into Agreements, including Tuition Agreements, for the Provision of Services and Benefits * (2011) -  These are the Guidelines that are to govern when the Program Planning Team has exhausted all options and agrees that the public school system cannot meet a student's needs. In such a case, a school board can agree to cover the total cost of the student's tuition at a private school. Just don't expect this to happen too often.
* Not to be confused with the Tuition Support Program, above

Transportation
Handbook for the Transportation of Students with Special Needs (2011)

Medical Care
Diabetes - Guidelines for Supporting Students with Type 1 Diabetes (2010)

Diabetes - Standards of Care for Students with Type 1 Diabetes in School (2008)

DNAR - Guidelines for Supporting Students in School Who Have a Do Not Attempt Resuscitation Order (2012)

Teacher Assistants (aka EAs, TAs, EPAs)
Guidelines for Teacher Assistants (2009) - Need to know the roles and responsibilities of teacher assistants? What are their expected qualifications and competencies? Unfortunately, the document doesn't quite answer many parents' burning question ... "How the heck do I get one for my child?"

Miscellaneous
Schools Plus - One of the Department's newer initiatives and worth taking a look-see at.

You can find a series of special reports here, including the Autism Management Advisory Team (AMAT) Report - Lifespan Needs for Persons with ASD.

And although not technically from the Department of Education, you might find this document useful if you find yourself trying to explain to the school why your child with autism requires a service dog at school.


One (or two) last word(s) ... it took a while to convince me, but after meeting twice with the Minister of Education last year, I am at last convinced that the Department, itself, actually has some pretty good policy documents; as just one example, I was particularly pleased to be pointed to the Life Skills document above after having been repeatedly told my child's high school that she had to sit through (what to her are) totally useless academic courses so that she could get a (to her) totally useless piece of paper (diploma). Can't do life skills as credits, huh?

Knowledge IS power. So now our challenge, as parents, is to actually find and use those documents in our dealings with our children's schools and school boards. I just did some of the leg work for you ... now it's your turn!

An Interesting Tidbit Look at Physician-Assisted Suicide

In Canada, suicide is not a crime. However, assisting someone to commit suicide is.

Or, at least, it was.

In a June, 2012 decision out of British Columbia, the British Columbia Supreme Court (BCSC) found that these Criminal Code prohibitions violated the Charter rights of the plaintiffs (a woman with a fatal neurodegenerative disease and the relatives of another woman who had terminated her life in Switzerland with their assistance).

Some of you might recall the issue of physician-assisted suicide being dealt with many years ago; in 1993, to be exact. In that case, the Supreme Court of Canada (SCC) found that although the prohibition on doctor-assisted death engaged the s. 7 rights of liberty and security of the person, the law should be upheld based on the importance of the objective behind it; namely, the protection of the vulnerable. This policy is part of our fundamental concept of the sanctity of life and it was noted that blanket prohibitions on assisted suicide is the norm among Western democracies.

The government's repeal of the offence of attempted suicide was not a recognition that suicide was to be accepted within Canadian society but merely reflected the recognition that the criminal law is an ineffectual and inappropriate tool for dealing with suicide attempts. Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the SCC found that the blanket prohibition on assisted suicide was neither arbitrary nor unfair.

But the law has developed since then, particularly as to what exactly is encompassed in the term "principles of fundamental justice" (as found in s. 7).  Further, the Rodriguez case had not dealt with the issue of s. 15 equality rights.

Financial and Estate Planning Tool

We've talked at length, on various occasions, about the challenges involved in planning for your child's future security, be it personal or financial.

In that vein, although no longer exactly *new*, I've been meaning to share NBACL's financial and estate planning resource.

From Ken Pike, NBACL Director of Social Policy:

There are many issue to consider when making financial and estate plans for your family member with a disability. NBACL's new online resource, Financial and Estate Planning for a Family Member with a Disability, provides information on a number of important topics as well as links to other resources that may be useful. The on-line module has information about

• The key elements of good financial planning;
• The tax system, including credits, benefits and deductions relevant to people with disabilities and their families;
• Registered Disability Savings Plans;
• Estate planning considerations and options for a family member with a disability;
• Establishing a financial trust for a loved one with a disability;
• The impact of provincial social assistance laws and rules on financial and estate planning [See Below]; and
• Planning for a home for a family member with a disability.

The module also contains a series of family financial and estate planning scenarios that offer some guidance from a qualified financial planner and a lawyer that address the situations presented.

As Ken notes, although the law in this area is often changing, NBACL has committed itself to keeping the information current.

Which is where the one BIG CAVEAT comes in - the site is based on New Brunswick law, not Nova Scotia law.

Although, fortunately, that is not quite as big of a problem as you might first think as, in many respects, the law is similar in both provinces around these issues. However, one area where the law does substantially differ between the provinces is how income* and assets* are treated with regard to social assistance payments.

Speaking of which, it's essential to remember that in Nova Scotia any trust you create for a loved one with a disability must be a so-called "Henson Trust" (referred to in the NB Resource as an  absolute discretionary trust) in order to ensure that social assistance payments are not affected.

* NOTE: Although you can find the Employment Support and Income Assistance policy manual here, I would strongly suggest that you always double check what you read in any policy document to make sure it complies with the regulations made under the applicable Act.

June 2012 Services for Persons with Disabilities Policy

Some of you might recall our previous discussions around the various programs offered under the Services for Persons with Disabilities (SPD) umbrella.

The policy documents  for each of those individual programs (Independent Living Support, Alternative Family and Direct Family Support) can be accessed by clicking on the relevant link on this page and then looking for the policy link on each program page.

But, lo and behold, the Department of Community Services (DCS) has now provided the policy document for the entire SPD Policy (dated June, 2012) online. The document covers both financial eligibility for the programs under the SPD umbrella and the "Basic and Special Needs Policy". 

Which, this is big news, because although you may want to first read the policy document for the individual program you are dealing with, you will definitely want to become familiar with the SPD policy itself.

And although it's next on my own personal "to do list", a little birdy has told me that if you find yourself in a dispute with the DCS (be it for yourself or a family member) around the SPD program, this new policy document might just be well worth the read.

H/T to my *little birdy*

For Whom The Bell Tolls

Very interesting situation going on in Minnesota at the moment - apparently, the law there as it now stands provides that persons subject to a guardianship order retain the right to vote unless a judge explicitly takes it away.

Some are trying to get that changed to provide that a person subject to guardianship cannot vote unless a judge orders otherwise. They fear that the votes of some persons with disabilities are being manipulated. The article refers to "guardianship voting" - I'm not sure exactly what that means but they also speak about group home workers taking their "charges" to vote and possibly influencing their votes - although I have to wonder how many of those group home residents are actually subject to guardianship. My guess is that most aren't.

In Nova Scotia (which easily has the most archaic guardianship system in the country), many rights are automatically taken away from a person subject to a guardianship order, including the right to vote.

Although I think I know what my readership will say, what do you think?

Should people who have been declared incompetent still be allowed to vote? If so, what (if any) measures should be put in place to ensure that their votes aren't being illegally manipulated?

Our American Friends

South of the border the debate continues on the UN Convention on the Rights of Persons with Disabilities. Is it good? Or is it bad?

Despite bipartisan support for a United Nations disability rights treaty, a group of Republican lawmakers is holding up U.S. Senate consideration of the matter.

The Senate Foreign Relations Committee planned to consider the U.N. Convention on the Rights of Persons with Disabilities last week, but was unable to after Sen. Jim DeMint, R-S.C., and a number of other Republicans reportedly placed a hold on it.

The move effectively squashed efforts by supporters of the treaty to get the U.S. to ratify it before the 22nd anniversary of the Americans with Disabilities Act on Thursday.

While the U.S. initially signed the U.N. Convention in 2009, Senate approval is needed for ratification of the treaty, which calls for greater community access and a better standard of living for people with disabilities worldwide.

Why, you ask?

Why would any part of the American government be reluctant to ratify an international convention recognizing the rights of person with disabilities? Rights which surely must be recognized and held in high esteem in such a great democracy as the US, a shining city uppon a hill?

For the very same reason that the US is hesitant (or outright refuses) to ratify other international conventions, of course.

The delay comes amid opposition from the Home School Legal Defense Association which is urging its members to tell Congress that the treaty “surrenders U.S. sovereignty to unelected U.N. bureaucrats, and will threaten parental control over children with disabilities.”

In a statement to the Capitol Hill newspaper The Hill, a DeMint spokesman said he wanted to delay the treaty over largely similar concerns..

That's right, folks. It just wouldn't do to have anyone else telling them what to do to or [gasp] interfere with their sovereignty.

Although I have to wonder just how well that is working for them.

The failure of the US to join with other nations in taking on international human rights legal obligations has undercut its international leadership on key issues, limiting its influence, its stature, and its credibility in promoting respect for human rights around the world.

And I must admit, I do find this thinking somewhat puzzling.

Sen. DeMint strongly opposes this treaty, as the United States is already the world leader in addressing the needs of the disabled and it’s foolish to think Americans need to sign away our sovereignty to exert our influence around the world.

So let me get this straight ... because the US is the world leader in addressing the needs of the disabled (I wonder what their own people have to say in that regard?) and they can/will continue to exert their influence around the world (now, here is where I get lost ... are they referring to their influence with regard to recognizing the rights of persons with disabilities?) because naturally they will have so much more moral clout around the issue given that they refuse to sign the Convention?

I must say that I find it particularly strange that the HSLDA is such a vocal opponent. Perhaps they are concerned that constitutionally enshrining "the right of persons with disabilities to education" [Art. 24] will somehow interfere with a parent's right to "direct the education of their children and to protect family freedoms."

Oh, wait, now I get it.

There is no doubt that the Obama administration is waiting to see how they do on this convention to push through an entire package of UN treaties—chiefly the UN Convention on the Rights of the Child, CEDAW (the women’s treaty), and the small arms treaty.

The poor souls are afraid. Afraid, I tell ya.

"In Need of Services" = "In Need of Protection"?

A very interesting decision out of the US, in which the Indiana Court of Appeals reversed a lower court finding that a mother had neglected her teenage daughter by refusing to pick her up from an emergency shelter.

Wait a minute, that sounds like abandonment, doesn't it?

Maybe but perhaps not if you have a good enough reason. In this case, the mother refused to take the girl home until she received counseling services.

Apparently the teenage daughter had a lot of behavioral issues, which the mother (a single parent) was attempting to address. And apparently it was the policy of the state's Department of Child Services to use a portion of state law that says parents are "unable" to provide necessary care as legal justification to "help" them secure services for their children with mental illness or a developmental disability.

In other words, in plain English, the government's policy was to substantiate neglect findings against a parent if the parent had legitimately been unable to access the services the child needed. Unable to access services because the government had, you know, refused to provide them.

Sound familiar?

The mother had twice called police after her daughter had become physically aggressive. Not surprisingly, police contacted DCS officials, who initiated an assessment and when, after the second incident, the woman refused to bring her daughter (who by that point had been diagnosed with oppositional defiant disorder) home until she received counseling, a petition was filed with the court alleging the girl was a "child in need of services" (which here, in Nova Scotia, we would refer to as a "child in need of protection") due to the mother's failure to provide necessary care.

Even though the mother had taken the child home a few weeks after first being requested and despite the fact that the Department's own investigation showed that the child, not the mother, had been the aggressor in the altercations, the girl was found to be "in need of services". To add insult to injury, the mother was ordered to participate in services and and pay DCS $25 per week for reimbursement of service costs.

'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.