Nova Scotia’s confinement of people with disabilities a ‘lawsuit waiting to happen’

Archie Kaiser, a law professor at Dalhousie University, is seen at the school in Halifax on Friday, Feb. 16, 2018. Andrew Vaughan/The Canadian Press

An independent report that warned people with disabilities were being unjustly confined in a Nova Scotia psychiatric hospital is being described as “startling and disturbing” by a law professor at Dalhousie University.

Archie Kaiser, who teaches at the Schulich School of Law, said the province should have found housing in the community with supports for the residents, after the review was delivered to senior health officials almost 13 years ago.

“Nova Scotia should apologize for its failure,” Kaiser wrote in an email.

“Responsible ministers should take responsibility for the inaction of successive governments following the review. This has been a shameful and deplorable situation for citizens who deserve our support to live with us in the community.”

READ MORE: Abuse alleged at Nova Scotia Hospital’s Emerald Hall

The April 2006 review by Dorothy Griffiths and Dr. Chrissoula Stavrakaki – experts on the care and treatment of people with both intellectual disabilities and a major mental illness – emerged last week at a human rights inquiry.

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The inquiry is looking at whether 45-year-old Joseph Delaney and 46-year-old Beth MacLean should be permitted to move from the hospital-like settings into small homes where assistance is provided for meals, mental health and other care.

Delaney is still at the Nova Scotia Hospital’s Emerald Hall, while MacLean, who spent almost 15 years in the locked psychiatric ward, was moved to a transition unit two years ago, after she launched the complaint.

A third complainant, Sheila Livingstone, died as the case wound its way through various delays, but her story will be told by family members and the complainants’ lawyer.

The report by Griffiths and Stavrakaki said at least half of the 19 patients were staying in the locked-door facility – and “some were being held against their wishes” – because the province wasn’t providing a community home with support.

“The situation is clearly confinement without justification … A non-disabled person in the province of Nova Scotia who experienced an acute mental illness and recovered would not likely be held in a locked psychiatric ward for up to 10 or more years post recovery,” the consultants wrote at the time, just months after former Tory premier Rodney MacDonald came into power.

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The authors said there was “a feeling of hopelessness for the individuals who live in the unit” and added that dedicated and committed staff were “feeling demoralized regarding the rules and outcomes.”

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“This failure to return these individuals to a less restrictive environment is inhumane and a class action lawsuit waiting to happen.”

WATCH: Disability advocates say housing for those with intellectual disabilities is in crisis

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Disability advocates say housing for those with intellectual disabilities is in crisis

Jo-Anne Pushie, a former clinical social worker who helped launch the human rights complaint in 2014, testified last week at the inquiry that when she came to the facility in 2011 many of the same residents remained on the ward, which prompted her decision to seek legal help.

A spokeswoman for the Nova Scotia Health Authority provided a statement from Rachel Boehm, a director of mental health and addictions, saying the 2006 report remains “relevant today and continues to guide administrators and clinical leads at the Nova Scotia Hospital.”

“Our work on the clinical transformation of Emerald Hall to address many of the recommendations in the report is ongoing.”

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Boehm also wrote “many” patients have been able to move on to placements in the community, but she did not provide a figure on how many.

Her statement says an outreach team works “tirelessly in the community to ensure that many individuals can be supported to stay at home or in their community setting.”

However, she said the hospital acknowledges there are “challenges experienced by individuals in accessing community supports,” and says Emerald Hall cannot discharge vulnerable patients unless safe placements are available.

There are currently nine patients at Emerald Hall, according to the health authority.

As of December 30 per cent, or 82 people, out of 270 people in mental health facilities “no longer required hospital admission” across Nova Scotia, and were awaiting placement in community-based care. Details on their diagnoses were not available.

Still, Sheila Wildeman, an associate professor at the Schulich School of Law who specializes in human rights, said the emergence of the Griffiths and Stavrakaki report strengthens the human rights case.

READ MORE: Directives in report on abuse at Emerald Hall not a guarantee, mother says

The teacher of administrative law also said the comments by the authors clearly put the government “on notice” of the risks of a human rights violation and of possible remedies.

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“In human rights law, failure of a respondent to make efforts to alleviate discrimination where it has been reasonably alleged increases the likelihood of liability, as well,” she wrote in an email.

In Ontario, a widely publicized ombudsman’s report – titled Nowhere to Turn – that looked at the issue of inappropriate confinements has prompted notable change since its publication in 2016.

The ministry of Community and Social Services accepted all of its recommendations, committed to 375 additional placements in community residences in its last budget, and has added $677 million over four years to relevant budgets.

“The ministry has told its service providers and Developmental Services Ontario offices that no individual with a developmental disability should be left in a hospital where there is no medical need,” a spokesperson wrote.

WATCH: Calls for help are increasing drastically in the province says Autism Nova Scotia

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Calls for help are increasing drastically in the province says Autism Nova Scotia

The Ontario ministry says it is making progress in finding appropriate homes.

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As of last summer, there were 83 people with intellectual disabilities living in Ontario hospitals who were requesting residential supports, compared to 154 in March 2017.

A spokeswoman for the Nova Scotia Health Authority said she could not be sure if the 2006 report was ever released to the public.

The human rights inquiry continues Tuesday with more testimony from Pushie, the social worker who helped launch the complaint.

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