"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Saturday, January 16, 2016

Let's Talk Landon Webb Guardianship ~ Part III

Does Nova Scotia's guardianship legislation needs a MAJOR overhaul? Absolutely.

Is it appropriate to throw out the baby with the bathwater and remove the option of guardianship completely from provincial law? While some in the disability community might respond in the affirmative to that question, you will find me on the side of those strongly shaking their heads, NO.

I'm not naive. I realize that many take the view that guardianship should never be a legal option because it “discriminates”against challenged individuals and takes away their right to make choices
for themselves.

In fact, the Canadian Association of Community Living (CACL) has characterized guardianship as "an ancient mechanism that was constructed without consulting people with disabilities" and takes the position that "supported decision-making" is not only preferable to guardianship, but given that "guardianship laws assume that some people do not have the capacity to make legally binding decisions" has invited us to "adopt a paradigm shift in which everyone has an equal legal capacity, without distinction based on disability."


What is Supported Decision Making (SDM)?
SDM means that a person can accept help in making decisions without relinquishing the right to make those decisions. With SDM, freedom of choice is never violated. The wisdom of a person’s choices is not challenged, allowing everyone the dignity of risk.

In theory, SDM helps a person to understand information and make decisions based on his or her own preferences. The feeling is that while guardianship laws theoretically protect people with disabilities from abuse, in practice they open the door to abuse. Some believe that guardianship facilitates institutionalization; the guardian can easily give consent even when the person opposes being institutionalized. One decision by the authorities and a person loses the right to decide where to live, loses the right to vote, the right to choose who to marry, the right to start a business. This results in living in a humiliating and degrading way.

We are told that the fact that others might view a decision as foolish or ill-advised doesn't mean a person in incompetent. The courts speak of the right to be KNOWINGLY foolish and the right to VOLUNTARILY assume risks; some case law speaks of the right to live life on the edge. Which is all well and good.

Let me say that I agree with a lot of the concerns set out above. In fact, speaking only as a parent, I love the concept of SDM in the abstract. My adult child being given that the information she needs to make responsible adult decisions.

What's not to love?




In Part IV, I will explain my concerns with SDM in the real world.

Thursday, January 7, 2016

Let's Talk Landon Webb Guardianship ~ Part II

I must admit that this was most definitely not what I had in mind for Part II of this series, as I had have no intention of making any further comment on Landon Webb's personal situation, However, comments such as the below from the editorial in yesterday's Chronicle Herald simply cannot go unanswered.
We are hopeful that the courts will rule that, no matter what Mr. Webb’s disability, he wants to live in society and should have the right to do so. No one should be locked up because he or she is disabled or needs appropriate support in order to live successfully in the community.
Really?

No one should be locked up because he or she is disabled or needs appropriate support in order to live successfully in the community?

I can see thousands of individuals with disabilities and their family members across the province shaking their heads in disbelief ... wondering why in the world this thought had not occurred to them, too.

At any rate, I sincerely hope both the Nova Scotia Human Rights Commission and Joe Q. Public can keep that concept in firmly in mind when the human rights complaint brought by three residents of Emerald Hall is heard later this year.

Yes, this is the very same human rights complaint where individuals had been forced to live in a psychiatric hospital for up to 13 years (with no end in sight) for the simple reason that the Department of Community Services either couldn't or wouldn't provide them with placement in the community.

The very same complaint where the investigation conducted on behalf of the Human Rights Commission found that “the existence of discrimination cannot be denied", yet, incredulously  the investigator recommended that the complaint be dismissed. That would have been the end of the matter had the complainants' lawyers not fought on and brought the matter before the Commission for a review, arguing successfully that it should go forward to a hearing.

News Flash #1: Individuals with disabilities who cannot live in the community without support need someone to provide them that support.

News Flash #2: Caregivers don't work for free - someone has to pay them a living wage.

And just who would that "someone" be? For the uninitiated, it would be the provincial government in the form of the Department of Community Service's Disability Support Program.

But what happens if you are forced to rely on a system where the wait list for residential placement currently sits at over 1000 people?

What are individuals with disabilities and their families to do when they want nothing more than to live in the community but simply can't move out of their family home, Emerald Hall or an institution because the Dept of Community Services won't provide the funding for the type of support the person
requires to be successful in the community?

Could there be anything the public could possibly do to help?

Oh, wait. I know. One really helpful move would be to bash an individual's family members for the continuation of institutions in Nova Scotia.
I have yet to meet anyone in the disability community who wants to see their family member housed in an institution. Have you?

* You might have noticed that the sarcasm was a bit thick in this post. That's something I generally work very hard to avoid, but sometimes a person simply has to use whatever tools are at their disposal to make people see that a spade really is a spade.

**
 Part III will, as promised, will examine take a look at the alternative being presented to guardianship at the moment - supported decision-making.

Wednesday, January 6, 2016

A New Day

Some might recall me occasionally mentioning that the reason A Primer on Special Needs and the Law has never had a blog roll is because I have never come across any Canadian legal blogs that I
felt would be relevant to my readers.

Well, today that changes. May I introduce:

Mr. J.P. Boyd and his blawg, 


Mr. Boyd presently serves as the executive director of the Canadian Research Institute for Law and the Family, prior to which he practiced family law in Vancouver, British Columbia as a litigator, mediator, arbitrator and parenting coordinator.

To quote Mr. Boyd, "The information provided in this blog relates to the laws and dispute resolution processes of Canada."

Although not directed to legal issues faced by persons with disabilities, per se, the blawg appears to have a nice mix of material oriented to helping self-represented litigants and information on initiatives underway across the country to increase access to justice.

* For anyone wondering, no, I have not forgotten my promise to continue our discussion in the "Let's Talk Landon Webb Guardianship" posts. All things come to those that wait.