The decision this week by the New Brunswick Court of Appeal, reported in the Telegraph Journal, dismissing a discrimination complaint against the Province of New Brunswick for essentially "banishing" a severely autistic New Brunswick man to the US (Maine) to obtain appropriate care covers a range of legal issues and emphasize again the challenges faced in advocating for provision of autism services in the court system. The decision, New Brunswick Human Rights Commission v. Province of New Brunswick (Department of Social Development), 2010 NBCA 40 (CanLII), touches on a number of legal issues relevant to a legal analysis of discrimination complaints and includes commentary on the Supreme Court of Canada decision in the Auton autism case. (Justice Robertson, who delivered the Court's decision, was also one of my first year law professors at the University of New Brunswick.). In the disposition the Court concluded that the province was under no obligation to provide the service sought.
The British Columbia Supreme Court and Court of Appeal decisions in the Auton case were huge factors in energizing Canadian autism advocates. The expert evidence in the cases summarized authoritatively the strong evidence basis for ABA in helping autistic children overcome serious deficits and improve their quality of life. The British Columbia trial and appeal decisions provided autism advocates across Canada with powerful tools to use in discussions with government autism service providers.
Many autism advocates in Canada, including me, concluded after those decisions were reversed by a unanimous decision of the Supreme Court of Canada in Auton that Canadian courts would be of little assistance to parents and others advocating for decent education, health and residential care services for autistic children and adults. The Ontario Court of Appeal decision in Wynberg reversed a decision which held that the exclusion of autistic children aged 6 and over from a government funded early intervention program discriminated against the children on the basis of age and disability. Yesterday's decision by the New Brunswick Court of Appeal reaffirmed that Courts will be of little assistance in advancing the interests of autistic children even if Justice Robertson did offer a nuanced decision which rejected many of the Province's arguments but in the end dismissed the case. The Auton and Wynberg reversals helped focus Canadian autism advocates by making it clear that redress must be found in legislative change. It was truly time to "get political". Here in New Brunswick the Court of Appeal decision again emphasizes the need for advocates seeking improvements to New Brunswick's adult autism care services to "get political".
The Appeal Court decision highlights once again the need for a New Brunswick based residential care and treatment facility for autistic adults; one that would provide residential care and treatment for the more severely autistic who can not live in a group home setting. The psychiatric hospitals, Centracare in Saint John and the Regional hospital in Campbellton, have been the only option for severely autistic adults who remained in New Brunswick. The facts of the case indicate that a complaint was filed on behalf of the individual involved in 2002. It is now 2010, eight years later, and despite further high profile incidents like the housing of an autistic youth on the grounds of the Miramichi youth correctional facility pending an opening at Spurwink, the Province of New Brunswick has made no identifiable steps toward either establishing a secure, modernized residential care and treatment facility for the most severely autistic or toward enhancing a private run group home system that currently has no autism specific training requirements for staffers.
Presentations have been made by advocates and experts here in New Brunswick to the New Brunswick government asking for a modernized residential care and treatment facility in Fredericton. Fredericton was requested because of proximity to the autism expertise at the Stan Cassidy Center, the UNB-CEL Autism Intervention Training program and the UNB Department of Psychology and the geographically central location of Fredericton with many recreational and other opportunities available for prospective residents of such a facility. I have been involved in several such meetings and assisted in compilation of a provincial survey several years ago which sought feedback for government discussions concerning adult autism residential care.
In a very recent letter from the current Minister of Social Development, Kelly Lamrock, I was informed that his department is working on these issues. The Province's previous track record on adult autism care suggests that such words are just part of an "official" response with no specific commitment and no realistic chance that positive changes would follow. It is only the genuine respect I hold for Mr. Lamrock, a person I have met on many occasions in the course of my autism advocacy in his former role as Education Minister, that makes me think that maybe now, finally, something will be done.
In a very recent letter from the current Minister of Social Development, Kelly Lamrock, I was informed that his department is working on these issues. The Province's previous track record on adult autism care suggests that such words are just part of an "official" response with no specific commitment and no realistic chance that positive changes would follow. It is only the genuine respect I hold for Mr. Lamrock, a person I have met on many occasions in the course of my autism advocacy in his former role as Education Minister, that makes me think that maybe now, finally, something will be done.
For now though, eight years after the discrimination complaint filed which led to this week's Court of Appeal decision, an examination of the record shows that we have done nothing to improve care for autistic adults here at home in New Brunswick.
Nothing, not a darn thing.
4 comments:
Q's??
1. In Ontario if a hospital wished to raise money for a piece of equipment the Province pays to maintain and staff it. If an independant group of interested people in NB decided to build a facility and raised the monies to do so.... would the NB gov't maintain and staff it. If so, can the board of Dir's that built it say on to direct policy?
2. Is there enough interest, does the legislation allow for a private facility to be built? Therefore the interested parties would fundraise to build one themselves.
I do not have enough knowledge about either this case or the Auton/Wynberg cases to take a position (didn't Michelle Dawson intervene in Auton?), but it is very sad that access to appropriate services has to be sought through non-discrimination legislation. It would be, in my opinion, a province's job to provide a framework in which such appropriate services could be established. As a leftist I would even argue for public services, but at the very least the govt ought not work against a private initiative.
Yes Michelle Dawson intervened as "an autistic" to oppose ABA therapy for the autistic children whose parents sought government funded ABA interventions for them:
As stated by the Supreme Court of Canada in Auton, page 10, paragraph 5:
"While increasingly accepted, Applied Behavioural Analysis (“ABA”) or Intensive
Behavioural Intervention (“IBI”) therapy is not uncontroversial. Objections range from its reliance in its early years on crude and arguably painful stimuli, to its goal of changing the child’s mind and personality. Indeed one of the interveners in this appeal, herself an autistic person, argues against the therapy."
http://www.canlii.org/en/ca/scc/doc/2004/2004scc78/2004scc78.pdf
FW2
Thank you for your questions.
If you read the article or the case that I have linked to you will see that the PNB has paid $500,00 per year for one person to reside in the Spurwink facility in Maine.
I have been been to two psychiatric facilities in NB where autistic adults have resided who are too severely autistic for group homes. I have been contacted by a person whose autistic son was living on a regular hospital ward in Saint John NB at the time.
The existing public system while better than nothing does not provide a decent standard of living for severely autistic adults.
I wish you and your child well. I assume from the content of your questions that he will have access to wonderful privately funded facilities in Ontario for residential care and treatment if needed as you and he age and as you, as we all do, inevitably, depart. If so he is fortunate.
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