Liberals push ahead with new intellectual capacity law, despite objections

Despite a chorus of objections to a proposed law governing when guardians can take over decision-making from intellectually disabled Nova Scotians, Liberal members have used their majority on a legislature committee to move Bill 16 along without change.

The vote on Monday took place just minutes after the last of seven presenters called for changes to the Adult Capacity and Decision-making Act. 

PC MLA Karla MacFarlane, who tried unsuccessfully to pass a motion to send the bill back to Justice Department lawyers to consider the changes being proposed, said she was taken aback by the move.

"I was really surprised", she said. "Most people would say they're not, but I was surprised because I think that it's very clear from the presenters today that anyone's astute observation today is that clearly the bill is not conforming even to the charter of rights."

Bill 16 is designed to replace a previous law, the Incompetent Persons Act, which was struck down by a Nova Scotia Supreme Court judge.

The judge found the old law violated the basic rights of Landon Webb, a young man whose parents were granted guardianship over him when he was declared medically incompetent.

Michael Bach, managing director of the Institute for Research and Development on Inclusion in Society, traveled from Toronto to offer his assessment Monday of the proposed law. He called it an improvement over the Incompetent Persons Act, but said there are still issues with Bill 16.

He said the new legislation acknowledges there are instances when intellectually impaired people can make decisions for themselves if they have "support," a "really important" step forward.

"For the first time, it acknowledges that even though a person may have an impairment, that that can be accommodated with support," he said.

The issue, he said, is Bill 16 doesn't specify what that support would be.

"That leaves a wide scope for arbitrary application of the definition of capacity," Bach said.

He suggested the definition of mental capacity be changed to include examples of those supports, and he called on the provincial government to take more time to consider the proposals he and others were making.

Former federal MP Wendy Lill, who is the mother of an intellectually disabled adult son, also called on the government to carefully consider what critics were advising because the law will be used in conjunction with others that govern the lives of people with intellectual disabilities.

"It's like laying the foundation for a house," she said. "Each piece needs to be fit together.

"You can't have a solid house if there are flaws in the foundation."

Dave Kent, who described himself as having an intellectual disability and is president of People First, an advocacy group, told the committee that what the province has come up with to replace the old law is, in many ways, just as bad.

"We are very disappointed that it seems more like the old, outdated act than anything else," he told committee members.

Justice Minister Mark Furey defended the proposed law and the decision to move it forward unamended.

"What's contained in the bill is really the foundation that allows us to address the issues of the court," he said. "We believe in some way addresses the issues of both those with diminished capacity as well as family representatives."

Furey said he is confident the new law is constitutionally sound.

"One of the things I've learned over my working career is that on any issue there are different legal opinions. We believe based on the legal advice and academic advice that we've received that the bill is, in fact, constitutional."

Furey said the bill would next be debated on the floor of the legislature where amendments could be proposed and possibly accepted.