N.S. fined for housing people with intellectual disabilities in hospital

A human rights ruling is requiring Nova Scotia's government to find suitable community homes for two people with intellectual disabilities who were confined to a hospital ward for years.

Wednesday's decision also levies fines on the province for the time Beth MacLean, Joseph Delaney and the late Sheila Livingstone — who died before the hearing was completed — were held at the Emerald Hall ward in Halifax.

Attorney Walter Thompson, who led the commission's inquiry, writes in his decision that the care and housing of Delaney, MacLean and Livingstone wasn't an act of targeted malice, but rather one of general neglect by successive governments.

Thompson found earlier this year that the applicants had been discriminated against under provincial human rights legislation, after a series of hearings that were closely observed by advocates for people with disabilities.

In his ruling, Thompson says he will maintain jurisdiction to "monitor the placement" of Delaney and MacLean. The lawyer says that as of November this year, Delaney and MacLean were still awaiting a community placement.

'They are not home yet'

He also ordered the province to pay $140,000 in trust for both Delaney and MacLean, including legal fees.

The province is further ordered to pay $60,000 in respect to the claim of the Livingstone, with $40,000 going to her lawyers and $10,000 each to her sister Olga Cain and her niece Jackie McCabe-Sieliakus.

"The placement of Joey Delaney and Beth MacLean in small options homes must be done to achieve full compliance of the act," Thompson wrote, referring to community homes that house three to four people with disabilities.

"They are not home yet. There are still, it is apparent from the remedy hearings, obstacles to be overcome. It would be unjust of me now to simply fade away and not see the remedy through."

Thompson originally found the province discriminated against the three complainants based on their mental and physical disabilities.

He found that confining them at the Nova Scotia Hospital had an "adverse impact" on their lives.

"Each was confined, against almost all medical advice, for long periods of time in an acute-care unit of a psychiatric clinic awaiting a placement in some other care facility," he wrote.

Thompson distinguished the case of Livingstone from the other two complainants, accepting that the aging, ailing woman was eventually placed in a suitable facility in Yarmouth, N.S.

Still, he noted that in Livingstone's case, her sister had to travel 350 kilometres to visit her. Thompson said that amounted to "a denial of meaningful access."

Each person must be assessed individually

He rejected the province's argument that it had no options for the three, saying there was evidence from multiple government officials and experts that suitable housing and care could have been provided.

Thompson did not find the province discriminated against persons with disabilities who reside in institutions generally, or who are on a waiting list for placement in a small options home.

He concluded that each disabled person's circumstances must be assessed individually and a decision made as to whether they have meaningful access to services.

He also rejected the argument that timely placement in small options homes is a human right.

In setting the monetary penalty, Thompson acknowledged the complainants had asked for a much larger amount but said the case was not the same as an instance of person who was wrongfully imprisoned in a jail.

"The plight of disabled people awaiting placement is very common, ordinary. Regrettably, it is a fact of life that governments generally have not provided the services to the disabled that the disabled and their families need," he wrote.

"One should also be mindful, I think, that the province has, at considerable cost, provided care to the complainants throughout their lives."

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