Human Rights in Education - When "Meaningful" is "Good Enough"

We've discussed the issue of human rights in education a fair bit, but what of those students whose behavioral challenges really do create an “unacceptable safety risk" to themselves or others?

In September 2019, the Ontario Human Rights Tribunal dismissed a complaint alleging that a school board had discriminated against a Grade 2 student with Autism Spectrum Disorder (ASD) and a learning disability.

Shortly after starting school in a French Immersion program a behaviour plan was implemented for the young student, which appeared adequate until Grade 2.

Unfortunately, the behavioural problems escalated, resulting in the school developing several strategies, including assigning two educational assistants. Things deteriorated from there; in addition to eloping from the classroom, he repeatedly threatened and attacked staff and other students, resulting in multiple injuries. In October 2018, he repeatedly hit an educational assistant ("EA"), giving her a concussion and resulting in her being off work for an extended period of time, following which some staff invoked their right to refuse unsafe work and other parents complained about safety risk to their children.

The student was suspended pending investigation of the incident with the EA and subsequently expelled from the French Immersion school only, which decision was upheld following an internal review process on the basis that his continued presence at the school created an “unacceptable safety risk".

The school board developed what they referred to as a “Loop of School” plan, involving a gradual re-introduction to the classroom. It provided for the student to be moved from the French Immersion school to his neighbourhood school, but not only was the mother unwilling to have her son change schools*,  she would not accept any plan that did not include the provision of “Tier 3 ABA,” (ABA provided in a clinical setting), arguing this was necessary to allow her son to access education.

The Human Rights Tribunal found that the family had proven prima facie** discrimination (as the student no loner had meaningful access to education owing to his increasing dysregulation), but rejected the argument that that his dysregulation was caused by the school’s failure to provide ABA in the classroom, given that meaningful access to education had been provided during the first part of Grade 2 and during a period of home instruction immediately following the suspension without implementing an ABA program.

Although school boards are required to offer students with ASD special education programs, including programs using ABA methods “where appropriate,” the Tribunal didn't accept that “Tier 3 ABA” services in a regular classroom setting were necessary for the student to access education.

It also found that that, prior to the student’s expulsion, the Board had accommodated him to the point of "undue hardship** and despite taking various steps to deal with his increasing dysregulation, the student ultimately posed an unacceptable safety risk to staff, students and himself.

Gradual re-introduction to school was a necessary and reasonable component of the Board's plan and although "reasonable programming alternatives" (such as home instruction or a special education class at his neighbourhood school) had been offered to the student during the expulsion, these had been rejected by the mother.

Turning to the conduct of the student’s mother, the Tribunal stated:

In rejecting the Loop of School plan, Ms. Kahn failed in her obligation to co-operate in the accommodation process. In so finding, I note that parents do not have the right to dictate the accommodations which their children will be provided with to access education. While parents do have the right to provide input as part of the accommodation process – which Ms. Kahn did in this case – they must accept reasonable accommodations offered by the school board.

Thus, the Tribunal found that “the applicant failed to engage in the accommodation process in any meaningful way…[and] failed to accept reasonable accommodations offered by the respondent”, resulting in the application being dismissed.

Although largely based on its specific facts, the decision does provide some helpful guidance on the types of accommodations that school boards should be expected to provide to ensure "meaningful access" to education and clearly reminds us that a student seeking accommodation is entitled to "reasonable" – as opposed to "preferred" – accommodations.

So, what do you think? Did the Ontario Human Rights Tribunal "get it right"?

* Apparently, there was a little more going on behind the scenes, as the decision indicates that the family also wanted "childcare expenses" to be covered by the school board.

** You can find an explanation of both these terms in a previous post, "The Law on Human Rights and Employment in Nova Scotia: Part II" (just follow the links).

~  ~  ~

The decision is also interesting for a couple of additional issues discussed (whether the Human Rights adjudicator was "biased" due to his previous practice providing legal services to school boards in the areas of special education” and the effect of specific negative interactions between the mother and school personnel); however, these will be discussed in a separate post.

Merry Christmas and Almost Happy New Year

Merry Christmas and almost Happy New Year and all that good stuff ...

My "early" New Year's Resolution (not that I generally make any so you all should all feel "special", if you know what I mean) is to get back to blogging on at least a [ahem] semi-regular basis. And just in case you doubt my bona fides, I am pleased to advise that I have already written (although not yet published) my next substantial blawg post concerning accommodation in special education.

Alas, you will have to wait a few days to see that - hey, I have to at least try to give myself a head start here ... it's only fair, right?

Come back in a couple of days, okay? Promise?

"Where Is This Nova Scotia Legal Representation Kit of Which You Speak?"

No apologies this time for the length of time I've went without posting - I simply don't have the time for apologies. And, yes, I do realize how sad that sounds ...

However, realizing there's something I have been meaning to pass on to you for the past few months, I thought I better do so now.

HEAR YE  HEAR YE

The rumours of the death of the Nova Scotia Legal Representation Kit have been greatly exaggerated. By which I mean I have been making a concerted effort to (as much as possible) work on the Kit every Sunday for the past few months.

Yes, I said "effort", not "have been", but we all know what life is like. I am, however, committed to (if at all possible*) creating a user-friendly self-help Kit for families seeking representation of a loved in Nova Scotia.

Looking back, it literally took me a few years to create the Nova Scotia Legal Guardianship Kit, working on it in my "spare time", so to speak. And that was before I returned to practice. No, I don't expect this revamp make-over Kit to take that long to complete but it's definitely not something that can be quickly or lightly done.

So, yes, it's going to take a while. But I am committed to do all I can when I can.

* "If at all possible", meaning that I am not 100% positive that it is possible to create a useful self-help Kit with respect to applying for legal representation in Nova Scotia. But, if it is possible (given the requirements of the new legislation), it will be done.

Keep Calm and FaceBook On

It has definitely proven a lot more difficult to keep up with blogging since I've returned to practice as a disability lawyer, but do not fear; A Primer on Special Needs and the Law is not going anywhere.

I know this blawg provides a valuable service for the disability community and yes, I actually do enjoy blogging (not that you would know it by the significant decrease in posting over the past few years). It's here to stay.

However, I would like to point people to my FB page, where you will find posts of a somewhat more regular nature. Notice I didn't say you would find daily, weekly or even monthly posts, just somewhat more regular posting.

My FB posts for today and tomorrow, for example, both deal with articles I recently came across in a legal newsletter. Once upon a time, at least one of those articles would have been turned into a blog post. But alas, time is short so I do what I can.

On another note, no, I have most assuredly not forgotten about the much-promised revamped Nova Scotia Adult Representation Kit. It's just that I've been spending more time actually applying for representation on behalf of my clients than reworking the product, which, depending on your point of view could be a very good/bad thing.

And, should you require more, you can always contact me through the MMC Legal Services site. I am always happy to chat.

* Yeah, I know, my apologies for the post's title. It was either that or "When in Doubt, FaceBook". 
The lesser greater of two evils, perhaps?

All Hail the New Leader: Disability Support Program

I stumbled across this by accident on the Disability Support Program website. Very, very interesting. Of course, whether it will actually mean anything for the disability community's point of view remains to be seen.

I can tell you, however, that I recently met with Maria Medioli, who has taken over Joe Rudderham's position as Executive Director of the Disability Support Program. And I must say that I was positively impressed - which is not an easy feat with this long-term cynical parent/ disability lawyer.

You might remember that it was Ms. Mediolia that recently commented to the effect that parents and caregivers should contact staff at the DCS, who will "will bend over backwards to support families as best they can."

I must admit that when I first read that, I rolled my eyes, shook my head and wondered why the more things change, the more they stay the same. And that, as they say, was that.

Or at least it was until I actually spoke with Ms. Medioli in person (as part of a small group of families). The conversation lasted close to two hours and she seemed very open and honest in her answers/comments. To say it was a pleasant surprise would be a very large understatement.

So, let's put it this way, Mr. Rudderham and I never really hit it off from the first day we met but I got a very different, very positive feeling from Ms. Medioli.*

Never fear, though; I remain somewhat cynical. After all, does anyone remember the story of the former Student Services Coordinator for the Annapolis Valley Regional School Board who sounded like God's gift to parents whenever she spoke in public but was pretty much the polar opposite when a family actually had to advocate on behalf of their child?

Whether some people start from the right place but quickly get sucked up and corrupted by the system or  are simply very good at "playing the game" (generally to the detriment of individuals with special needs and their family members), I take very little at face value.

But I will give Ms. Medioli a chance to show that she not only talks the talk, but actually walks the walk. Maybe you should, too.

* Ironically, some might say, at the end of our meeting, Ms. Medioli commented that it had went much better than she feared though it would. Skeptic meet Skeptic.

Canada's Record on the UN Convention on the Rights of Persons with Disabilities

Last month, Canada hosted the United Nations Special Rapporteur [an independent expert who reports to the United Nations Human Rights Council and the General Assembly, and advises on progress, opportunities and challenges encountered in the implementation of the rights of persons with disabilities worldwide] on the rights of persons with disabilities. And she had lots of interest to say.

I'm going to highlight a few areas in this post, those of particular interest to me. However I strongly encourage you to read the entire document. Yes, it's lengthy but definitely worth the time.

GENERAL CONSIDERATIONS
Nevertheless during my visit I have noticed that discussions about the rights of persons with disabilities are still framed in terms of social assistance, rather than from a human rights-based approach. ... Therefore, more proactive governmental responses are needed to ensure systemic change and take away from individuals the burden of initiating lengthy and onerous legal procedures to achieve the recognition and enjoyment of their rights.

EDUCATION
I also noted a disconnection between the State’s commitment to inclusion in legislation and policies, and everyday implementation in practice, reflected in long waiting time and lack of services for students with disabilities and their families, putting them under significant emotional and financial pressure. ...

ACCESS TO JUSTICE
I would like to remind the federal, provincial and territorial governments that the obligation to provide procedural accommodation to persons with disabilities in all legal proceeding, as established in article 13 of the CRPD, is distinct from the obligation to provide reasonable accommodation, as the first is not subjected to the test of undue hardship.

In addition, I am very concerned about the overrepresentation of persons with disabilities, particularly those belonging to indigenous or other minority communities, in both prisons and the juvenile justice system. I have also received alarming information that persons with psychosocial disabilities are diverted to mental health courts for minor offences where they are subjected to higher penalties and stricter regimes.

LIVING INDEPENDENTLY in the COMMUNITY
I am extremely concerned about the lack of comprehensive responses to guarantee the access of persons with disabilities to the support they need to live independently in their communities. Whereas legislation, services and programmes vary across provinces and territories, generally access to support is not considered as a right, but rather as a social assistance programme dependent on the availability of services.

... persons with disabilities have limited access to different forms of support (including income support, home support, and respite centers), experiencing long waiting time up to several years. While some pilot projects have shown their potential to transform service provision (e.g., the initiatives to provide personalized direct funding), the overall identification, systematization and scaling-up of such initiatives remain a challenge.

RIGHT to LIFE
I am extremely concerned about the implementation of the legislation on medical assistance in dying from a disability perspective.... I have further received worrisome claims about persons with disabilities in institutions being pressured to seek medical assistance in dying, and practitioners not formally reporting cases involving persons with disabilities. I urge the federal government to investigate these complaints and put into place adequate safeguards to ensure that persons with disabilities do not request assistive dying simply because of the absence of community-based alternatives and palliative care.

Now go read the rest. Trust me.

NS Family Fights for Future of Son with Disabilities

This video is making its way around FB with good reason.

It is heartbreaking and a true rendition of what is happening in Nova Scotia right now, particularly to those with more severe challenges, such as Brendon.

Representation: Vulnerability Just Ahead?

The following is an excerpt from a recent email to a doctor explaining why Representation can be so crucial for higher-functioning individuals. Please pay particular attention to the last paragraph:

The legislation defines “capacity” as “the ability, with or without support, to

• understand information relevant to making a decision; and

• appreciate the reasonably foreseeable consequences of making or not making a decision including, for greater certainty, the reasonably foreseeable consequences of the decision to be made.

In my experience, it is often the second component that is the real sticking point. The simplest example is, perhaps, a child’s ball rolling across the road. Although the child can show his want/need to retrieve the ball at any cost, none of us would allow him to simply run into the road because we understand what the child cannot; namely, the very real risk (and potentially severe consequences) of being hit by a vehicle.

A more apropos example might be a challenged young adult meeting (and perhaps developing a form of relationship with) an individual in the community or elsewhere, who then asks our young adult to go somewhere or do something with them. Given that executive functioning deficits cut through every aspect of a person’s life, the issue becomes the young adult’s ability to think through the potential consequences of the decision he must now make. If, for example, the other individual is a stranger or you and I would see that what that person is proposing is illegal or potentially unwise or even dangerous, [unless a legal Representative has been appointed], no one would have the ability to intervene.

I see it much less as us imposing our value judgement as to what might constitute a “good" decision in the circumstances as recognizing that, whatever any one of us might ultimately decide, we at least have the ability to (if we choose) think forward as to potential consequences; whereas, adults in [this] situation simply do not (and likely will never) have this same ability.

Legal Representation in Nova Scotia: A Treatise [Part i

We ended last year by taking a look at the history of adult guardianship in Nova Scotia and a very quick overview of the new legislation. You will recall that in October of 2017, I also gave an interview to CBC as to my thoughts on the (then) proposed legislation. We will now take a closer look at the Adult Capacity and Decision-Making Act, its requirements and what it all means for families.

By the end of this month, I will have (hopefully successfully) completed my first application for legal representation under the Adult Capacity and Decision-Making Act. And I must tell you that the paperwork required is definitely more complex  then before.

As many of you know my plan was is to modify the Nova Scotia Legal Guardianship Kit so that it complies with the new legislation in order to ensure families continue to have access to a cost-effective way to apply for guardianship representation.

If, by chance, you feel that you picked up on some ambiguity in that last sentence, you are correct.

First, a confession of sorts. I have learned three things over the past year:

• it will take more than a few (or even several) tweaks to turn the Nova Scotia Legal Guardianship Kit into the Nova Scotia Adult Representation Kit; 
• a completely new self-help Kit is required to comply with the new legislation; and
• I honestly don't know how long  it will take to create and test-drive (or if it is even possible to create, for that matter) a new useful Kit.

Although it pains me to say this, I remain committed to helping families approach the legal representation process without incurring the cost of a lawyer if at all possible (or, at the very least, in a way that costs can be minimized).

But let's put that issue aside for now and look at some of the changes made to the process of obtaining guardianship representation in Nova Scotia.

________________________________________________________

As an aside, just in case you were wondering, a treatise 
is defined as:

a systematic exposition or argument in writing including a methodical discussion of the facts and principles involved and conclusions reached

______________________________________________________

Shall we begin?

Community Living Month ... Who Knew?

FROM NSACL:

October is Community Living Month!

For 64 years the family voice has guided the work of NSACL, and we are committed to ensuring that individuals with intellectual disabilities and their families have the support they require to live full and inclusive lives in their community. Having access to all that our communities offer means every citizen, regardless of their disability, can choose how they live their life. Community living can mean having the ability to choose your school, where you work, where you live, and where you hang out with your friends. The opportunity for every person to engage in a full and inclusive life impacts us all and shapes our community. We are celebrating Community Living Month by asking people:

“What does community living mean to you?”

People from Nova Scotia and several other provinces have shared their responses to this question. We have heard from first voices, students, families and other Nova Scotians such as, MP Andy Fillmore, MLA Claudia Chender, and Mayor Mike Savage, make sure to check them out on Facebook and Twitter.

The month is almost over but there is still time to participate, help us spread the word by taking a photo of yourself or someone holding the #InclusionNS sign or take a photo of what you think community living is. Post your photos using #InclusionNS or send it to us and we will share it on our social media!

Mea Very Culpa ... Estate Planning

You know it's bad when ...

Even I can't believe that I have only posted once since February. And this after promising to post on Nova Scotia's new guardianship representation legislation for the past seven months.

Hence: Mea Very Culpa

When it comes to the promised post(s) about the new Adult Capacity and Decision-Making Act, in my defence, there's a fair bit to digest there and the fact that takes time is somewhat problematic, especially when you have actual client files demanding your attention. That being said, I am working on a representation application at the moment and once I have walked through the process myself, I will be in a much better position to pass on what you need to know.

I'm happy to say that I have done a fair bit of work on the new Nova Scotia  Legal Representation Kit, but that, too, will benefit from having actual practical experience with the new legislation to work from.

In the interim, to appease the masses and remind you that proper "estate planning" involves more than just a Will, I offer you this quick reference estate planning chart courtesy of the Legal Information Society of Nova Scotia (a highly-recommended resource lovingly known as LISNS).

"You Have the Right to Remain Silent ..."

A quick follow-up from this 2009 post regarding challenged youth and the criminal justice system.

The 2009 case involved a Nova Scotia youth with a learning who disability, who made a statement to
police after having purportedly "waived" his right to (among other things) not make such a statement, consult a lawyer and have a lawyer or other adult (usually a parent) present if he made a statement. Although the boy’s mother had told the police of his learning disability,  the officer read the youth his rights in a rapid monotone, not making eye contact, asking only if the boy understood – to which he answered "yes" – but without attempting to gauge the level of that understanding. 

The officer’s rapid pace in navigating the waiver form, monotone voice and lack of eye contact or effort to establish the youth's level of understanding; along with the lack of any real evidence that the youth actually understood his rights left the court unsure whether the youth really understood the importance of the questions and the answers he was giving.

The Supreme Court of Canada held that police must not only advise a young person of their legal rights, but ascertain that he or she actually understands those rights and make an effort to become aware of complicating factors (such as a learning disability or any previous experiences with the criminal justice system).

The police must make an individualized inquiry, so that they can explain the person's rights in a language and at a level that the youth will be able to understand.

"An individualized, objective approach must take into account the level of sophistication of the young detainee and other personal characteristics relevant to the young person’s understanding. Police officers, in determining the appropriate language to use in explaining a young person’s rights, must therefore make a reasonable effort to become aware of significant factors of this sort, such as learning disabilities and previous experience with the criminal justice system.

As a result of this decision, Canadian police have had to work harder to ensure that the youth they deal with actually understand their rights and what it means to give up such rights.  They are required to ask questions about the youth's individual circumstances and tailor their speaking so as to meet that youth's level of understanding if they hope to have any statement made by the youth admitted as evidence in court.

There is much more of interest in this case, so you might want to review that 2009 post in more detail. However, for our purposes today, I found it interesting that school police in Baltimore have now been asked to adopt a "youth-friendly" Miranda warning.

The Baltimore Sun reports the Baltimore school board is currently accepting feedback on new school police policies under consideration before a vote next month.

Juvenile public defender Jenny Egan asked the school board to formulate a Miranda warning that includes developmentally appropriate language. Egan says the typical recitation heard in many a television procedural features clunky language that's difficult for children to understand. Juvenile public defender Neeta Pal read commissioners a "youth-friendly" warning adopted in Seattle's King County that simplifies the language.
[Emphasis added]

If such a move is necessary for typically developing youth, how much more important is it for our youth?

Human Rights & Housing in Nova Scotia

You might recall that in 2015, a Human Rights Complaint was brought against the Disability Support program on behalf of three long-term residents of Emerald Hall. Three years later, this complaint is finally being heard by the Nova Scotia Human Rights Commission.

If successful, this complaint has the potential to shake up the Disability Support program for all of us, in a very positive way. Why do we need a shake up?

For me, this headline says it all.