Archive for December, 2018

Samantha Martin vs Alberta

December 21, 2018


CANLII Samantha Martin vs. Alberta for Costs of Counsel:
Home › Alberta › Court of Queen’s Bench › 2011 ABQB 634 (CanLII)

Martin Estate (Samantha) v Alberta, 2011 ABQB 634 (CanLII)

Docket:1103 08609
Citation:Martin Estate v Alberta, 2011 ABQB 634 (CanLII)

Legislation cited
Canada Evidence Act, RSC 1985, c C-5 — 5
Fatality Inquiries Act, RSA 2000, c F-9 — 35; 48; 50; 53; 53(2)

Decisions cited
Alberta (Minister of Justice) v. Bjorgan, 2005 ABCA 309 (CanLII)
British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 SCR 371, 2003 SCC 71 (CanLII)
Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), [2007] 1 SCR 38, 2007 SCC 2 (CanLII)
R. v. Caron, [2011] 1 SCR 78, 2011 SCC 5 (CanLII)
R. v. Rain, 1998 ABCA 315 (CanLII)
R. v. Rowbotham, 1988 CanLII 147 (ON CA)

Court of Queen’s Bench of Alberta

Citation: Martin Estate v Alberta, 2011 ABQB 634

Date: 20111017
Docket: 1103 08609
Registry: Edmonton


Estate of Samantha Martin and Velvet Martin

– and –

Her Majesty the Queen In Right of Alberta



Memorandum of Decision
of the
Honourable Mr. Justice John J. Gill

I. Introduction

[1] The application raises the issue of a superior court’s authority to order public interest fundingin respect of proceedings taking place before an inferior tribunal.

[2] The Applicants apply for an Order requiring the Respondent, Her Majesty the Queen in Right of Alberta (Alberta), to pay the legal fees of Velvet Martin or the legal fees of her daughter Samantha Martin’s estate to assist the Applicants in participating in a fatality inquiry before a judge of the Provincial Court.

II. The Factual Background

[3] Much of the factual background was set out in the brief filed by Alberta. The relevant facts are as follows.

[4] A fatality inquiry (the Fatality Inquiry) was directed in respect of the death of Samantha Martin pursuant to the Fatality Inquiries Act, R.S.A. 2000, c. F-9 (the Act). The Fatality Inquiry is being conducted by a judge of the Provincial Court of Alberta. The Minister of Justice and Attorney General appointed external counsel, David Syme, as inquiry counsel for the Fatality Inquiry.

[5] The Applicant, Velvet Martin, was granted status as an interested party at the Fatality Inquiry as the mother of Samantha Martin. The foster parents of Samantha Martin were also granted status as interested parties at the Fatality Inquiry. The foster parents retained legal counsel (Tom Engel) to represent them, as did the department of Children, Youth and Family Services (Cherisse Killick-Dzenick).

[6] The Fatality Inquiry commenced on January 17, 2011 and continued through January 21, 2011. It was adjourned on January 21, 2011 to January 27, 2011. On January 27, 2011, counsel for the foster parents sought an adjournment of the inquiry to February 7, 2011 which was granted. The Fatality Inquiry continued on February 7, 2011 through February 11, 2011.

[7] The Applicant, Velvet Martin, has appeared at the Fatality Inquiry every day since it commenced. She has participated by raising objections, objecting to adjournment requests, and communicating with inquiry counsel about evidence.

[8] On February 11, 2011, Velvet Martin appeared at the Fatality Inquiry accompanied by legal counsel (Robert Lee). Legal counsel applied for an adjournment for the purpose of bringing an application before the inquiry judge to appoint counsel for the estate of Samantha Martin and to pay fees of that counsel. The inquiry judge granted the adjournment to March 18, 2011, at which time that application could be heard. Velvet Martin acknowledges that her counsel has also been able to provide her pro bono advice previously during the course of the Fatality Inquiry.

[9] On March 18, 2011, counsel for Velvet Martin advised the Fatality Inquiry judge that he was now bringing the application for funding of legal counsel for the Applicants for the remainder of the fatality inquiry to the Court of Queen’s Bench. The Fatality Inquiry was adjourned to November 2-4, 2011.

[10] While public funding of the Applicants’ legal fees was at times discussed during the Fatality Inquiry, Velvet Martin did not bring an application before the Fatality Inquiry Provincial Court judge seeking a recommendation from the judge that Alberta fund legal counsel to represent her or her daughter’s estate at the Fatality Inquiry.

< *Correct: I did raise the issue of Samantha requiring professional counsel with the Fatality Court Judge; Samantha Martin is the individual whom the Inquiry is about and the purpose of a PFI is to discover conditions that will assist in prevention of future fatalities. The foster people acquired counsel, the Government had a team of lawyers, Samantha had only me to represent her interests. I am not a professional educated in law, I am a mommy dealing with the death of my only daughter; thus, all I knew to do was to verbally request assistance from the Judge and trust the Judicial System to act ethically. No member of the Court made me aware that formal application was needed in order to try and secure professional counsel for Samantha. >

[11] On May 27, 2011, an originating application was filed in the Court of Queen’s Bench seeking an Okanagan order that Alberta fund legal counsel for Velvet Martin, or for the estate of Samantha Martin, for the remainder of the Fatality Inquiry. This type of order is referred to in the case law as an interim or advance costs order or an order for public interest funding.

III. Issue

Should Alberta be ordered to pay Velvet Martin’s legal fees or the legal fees of her daughter Samantha Martin’s estate to assist the Applicants in participating in the remainder of the Fatality Inquiry?
IV. The Law

[12] This application is governed by the principles outlined in R v Caron, 2011 SCC 5 (CanLII), [2011] 1 S.C.R. 78, a case in which the Supreme Court of Canada determined that the inherent jurisdiction of the Alberta Court of Queen’s Bench can extend to ordering public funding in respect of proceedings in the Provincial Court. At para. 6, the Court provided an overview:

As a general rule, of course, it is for Parliament and the provincial legislatures to determine if and how public monies will be used to fund litigation against the Crown, but it has sometimes fallen to the courts to make such determinations. To promote trial fairness in criminal prosecutions, for instance, the courts have in narrow circumstances been prepared to order a stay of proceedings unless the Crown funded an accused in whole or in part: R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.); R. v. Rain (1998), 1998 ABCA 315 (CanLII), 223 A.R. 359 (C.A.). In the civil context, British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (CanLII), [2003] 3 S.C.R. 371, extended the class of civil cases for which public funding on an interim basis could be ordered to include “special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate” (para. 36). Okanagan was based on the strong public interest in obtaining a ruling on a legal issue of exceptional importance that not only transcended the interest of the parties but also would, in the absence of public funding, have failed to proceed to a resolution, creating an injustice. In Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2 (CanLII), [2007] 1 S.C.R. 38 (“Little Sisters (No. 2)”), the majority affirmed that

the injustice that would arise if the application is not granted must relate both to the individual applicant and to the public at large. This means that a litigant whose case, however compelling it may be, is of interest only to the litigant will be denied an advance costs award. It does not mean, however, that every case of interest to the public will satisfy the test. [para. 39]

Neither Okanagan norLittle Sisters (No. 2) concerned an interim funding order made in respect of matters proceeding in a lower court. Nevertheless, the Alberta courts were faced here with a constitutional challenge of great importance.

And at para. 30:

Of course the very plenitude of this inherent jurisdiction requires that it be exercised sparingly and with caution. In the case of inferior tribunals, the superior court may render “assistance” (not meddle), but only in circumstances where the inferior tribunals are powerless to act and it is essential to avoid an injustice that action be taken. This requirement is consistent with the “sufficiently special” circumstances required for interim costs orders by Little Sisters (No. 2), at para. 37, as will be discussed. [Emphasis added]

[13] The Supreme Court of Canada went on to consider the concern of avoiding an injustice, at paras. 38 and 39:

Clearly, this case is not Okanagan where the Court viewed the funding issue from the perspective of a proposed civil trial not yet commenced. We are presented with the issue of public interest funding in a different context. Nevertheless, Okanagan/Little Sisters (No. 2) provide important guidance to the general paradigm of public interest funding. In those cases, as earlier emphasized in the discussion of inherent jurisdiction, the fundamental purpose (and limit) on judicial intervention is to do only what is essential to avoid an injustice.

The Okanagan criteria governing the discretionary award of interim (or “advanced”) costs are three in number, as formulated by LeBel J., at para. 40:

1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial – in short, the litigation would be unable to proceed if the order were not made.

2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.

3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

Even where these criteria are met there is no “right” to a funding order. As stated by Bastarache and LeBel JJ. for the majority in Little Sisters (No. 2):

In analysing these requirements, the court must decide, with a view to all the circumstances, whether the case is sufficiently special that it would be contrary to the interests of justice to deny the advance costs application, or whether it should consider other methods to facilitate the hearing of the case. The discretion enjoyed by the court affords it an opportunity to consider all relevant factors that arise on the facts.

While these criteria were formulated in the very different circumstances of Okanagan and Little Sisters (No. 2), in my opinion they apply as well to help determine whether the costs intervention of the Court of Queen’s Bench was essential to enable the provincial court to “administer justice fully and effectively”, and may therefore be said to fall within the superior court’s inherent jurisdiction. [Emphasis added]

[14] In summary, while the Court of Queen’s Bench has authority to order the public funding sought in this case, this authority is to be exercised sparingly and with caution. Specifically, this Court can render such assistance “only in circumstances where the inferior tribunals are powerless to act and it is essential to avoid an injustice that action be taken”: Caron at para. 30.

V. Analysis

[15] It is commendable how involved the Applicant Ms. Martin has been in the Fatality Inquiry. Apparently she has been present at the inquiry everyday and has taken an active role in the proceedings. It is also understandable why she would want to have her own legal counsel to assist her.

[16] To determine the issue, this Court has to apply the test from Caron:

1) Are the circumstances in this case such that the inferior tribunal, the Fatality Inquiry judge, is powerless to act?

2) Is it essential to avoid an injustice that this Court take action?

1) Is the Fatality Inquiry judge powerless to act?

[17] The Alberta Court of Appeal, in Alberta (Minister of Justice) v Bjorgan, 2005 ABCA 309 (CanLII), 417 A.R. 245, reviewed the power of a judge at a fatality inquiry to order the payment of an interested party’s legal fees. At para. 11:

“We therefore conclude that the duty of procedural fairness cannot provide a fatality inquiry judge with the authority to mandate that funded legal counsel be provided to a target of the inquiry. While it may be desirable to provide this authority to public inquiry commissioners in light of social policy considerations, such authority would have to be specifically provided for in the governing legislation. As it currently stands, a fatality inquiry judge has the authority only to: (1) recommend that an individual obtain legal counsel; (2) recommend that an individual apply for legal aid if unable to afford counsel; (3) recommend that the Crown pay an individual’s legal costs in those circumstances where it is considered necessary.”

[18] The Applicants submit that the Fatality Inquiry judge is powerless to act because all she can do is recommend that the Crown pay an individual’s legal costs in those circumstances where it is considered necessary.

[19] In this case, the Applicants did not request that the Fatality Inquiry judge make such a recommendation. We do not know whether or not the Fatality Inquiry judge would have made such a recommendation if asked, nor do we know whether or not the Crown would pay the fees if the Fatality Inquiry judge were to make such a recommendation.

< *As expressed, a plead for assistance certainly was posed to the Fatality Court Judge, Marilena Carminati. It was the Judge, herself, that indicated unfamiliarity whether or not she had jurisdiction to do so and this is why a higher Court was consulted for its expertise. Rendering next points 20 – 23 moot. >

[20] What is important at this stage of the analysis, however, is to assess whether or not the Fatality Inquiry judge is powerless to act. Clearly, that is not the case. The Fatality Inquiry judge can make a recommendation to the Crown. Making recommendations is an essential component of a fatality inquiry judge’s statutory jurisdiction under the Act: s. 53(2).

[21] The Act also gives a fatality inquiry judge broad powers over procedural matters. For example, s. 37.1 states:

37.1(1) A judge who conducts a public fatality inquiry

(a) shall, before receiving any evidence at the inquiry, and
(b) may, at any time during the inquiry

hold a conference under this section.

(2) At a conference referred to in subsection (1) the judge may give directions respecting

(a) the issues that will be or are under consideration at the public fatality inquiry,
(b) procedural matters and matters of fairness related to the public fatality inquiry, and
(c) any other issues that the judge considers have arisen or will arise in connection with the public fatality inquiry.

[22] The Provincial Court judge conducting a fatality inquiry is in the best position to determine the scope of the inquiry and whether or not a participant requires the assistance of legal counsel. In light of this fact and a fatality inquiry judge’s broad powers over procedural matters, it is reasonable to assume that a fatality inquiry judge would recommend that the Crown pay an individual’s legal costs if that judge thought it was necessary in the circumstances. Additionally, it is reasonable to assume that any such recommendation would carry some weight and be considered seriously by the Crown given the judge’s unique position. If the Crown accepted the recommendation, funding would be provided.

[23] I conclude, therefore, that the Fatality Inquiry judge is not powerless to act and can assist participants who seek publicly funded legal counsel by making recommendations to the Crown where it is considered necessary. The power to make a recommendation is of significance. A participant who requires the assistance of legal counsel should formally request assistance from the fatality inquiry judge. The Applicants failed to do so in this case.

2) Is it essential to avoid an injustice that this Court take action?

[24] This case presents the issue of public interest funding in the context of a public fatality inquiry. This is a different context from both the Okanagan case, where the Court viewed the funding issue from the perspective of a proposed civil trial not yet commenced, and the Caron case, where an accused was defending a regulatory prosecution in the provincial court and significant constitutional issues had been raised.

[25] The nature and purpose of a public fatality inquiry is as a fact-finding process as opposed to an adversarial litigation process resulting in findings of legal liability. It is, therefore, difficult to strictly apply the three criteria from Okanagan/Little Sisters (No.2), which were formulated in a context of public interest funding for litigation.

[26] Of significance is that, in Caron, the Supreme Court of Canada reiterated that the discretionary exercise of the superior court’s inherent jurisdiction permits the Court to consider any relevant factors that arise on the facts, and to decline to make a public interest funding order even where all three criteria are satisfied: at para. 39. Above all, the test is whether or not the superior court is required to take action to avoid an injustice in derogation of the public interest. The satisfaction of all three criteria is, therefore, necessary but not sufficient for the making of a discretionary order for public interest funding: Okanagan at para. 41.

[27] Nevertheless, in Caron at paras. 38-39, the Supreme Court of Canada suggested that Okanagan and Little Sister No. 2 provide guidance to the general paradigm of public interest funding, and the three criteria are useful in deciding whether public funding should be ordered in a particular case. Those criteria are:

1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial – in short, the litigation would be unable to proceed if the order were not made.

2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.

3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

[28] I am not satisfied that the Applicants have met any of these criteria and that an order that Alberta fund the Applicants’ legal fees is necessary to avoid an injustice.

[29] With respect to the first Okanagan criterion, impecuniosity, I agree with the Respondent that the Applicants’ evidence in relation to financial inability is ambiguous and inconclusive. It appears to relate to attempts to retain counsel to pursue civil litigation against the Crown not the Fatality Inquiry.

[30] In Little Sisters (No. 2), the Court stated that the question is “whether the applicant has made the effort that is required to satisfy a court that all other funding options have been exhausted”: at para. 68. Although Velvet Martin provides evidence of a broad network of support, there is little if any evidence to show attempts at fundraising or obtaining financing to hire counsel.

< *a/ Extensive supportive evidence was submitted to the Court demonstrating that no Counsel was available to assist. Primarily, the reason cited by various Counsel is the fact that it is uneconomical to challenge Government. The Court concluded that Counsel would alter its stance in regards to a PFI vs. civil litigation scenario, however, that was not true in my experience trying to secure Counsel. In addition, being forced to take on the role of a professional, my time was consumed with preparations for the PFI, rendering ability to re-seek Counsel and fund-raise full-time endeavors in conflict with the position.
b/ None-the-less, attempts were made to achieve financial assistance and shown the Court: Online fundraisers were initiated and friends also made attempts to assist . i.e. A Martial Arts Studio held an event where patrons could participate in challenges to raise money. While intent was grand, funds achieved, however, were minimal and insufficient to pay the costs of hiring professional Counsel. >

[31] Moreover, this criterion requires that no other realistic option exists for bringing the issues to trial such that the litigation would be unable to proceed without the order sought.In the circumstances of the Fatality Inquiry, it is not clear that counsel is necessary to avoid an injustice. The Fatality Inquiry will continue whether or not the order sought by the Applicants is granted.

[32] While it is understandable why the Applicants would want to have the assistance of legal counsel, she has actively participated in the Fatality Inquiry on a daily basis to date. Inquiry counsel has been appointed, and he has broad powers over the presentation of evidence, arguments, and submissions: Act, s. 35. There appears to be no restriction on the ability of inquiry counsel to assist or advise the Applicant, Velvet Martin, or other participants in bringing issues to the Fatality Inquiry.

[33] With respect to the second Okanagan criterion, a meritorious claim, the Applicants cannot be said to be asserting or defending a “claim” in the context of a fatality inquiry. Rather, the Applicant, Velvet Martin, has chosen to participate in a fact-finding inquiry which shall not contain findings of legal responsibility or conclusions of law.

[34] The Applicants’ position is that publicly-funded counsel is necessary at the Fatality Inquiry to protect and represent the interests of the deceased and of all children in the care of the government of Alberta in order to achieve the objective of the Fatality Inquiry. Yet, the fundamental and statutorily-mandated purpose of the Fatality Inquiry is to provide a written report in relation to the death of Samantha Martin.

[35] Section 53 of the Act sets out the result of the inquiry:

53(1) At the conclusion of the public fatality inquiry, the judge shall make a written report to the Minister that shall contain findings as to the following:

(a) the identity of the deceased;
(b) the date, time and place of death;
(c) the circumstances under which the death occurred;
(d) the cause of death;
(e) the manner of death.

(2) A report under subsection (1) may contain recommendations as to the prevention of similar deaths.

(3) The findings of the judge shall not contain any findings of legal responsibility or any conclusion of law.

[36] The focus of the Fatality Inquiry is on making factual findings on the identity of the deceased, the date, time and place of death, and the circumstances, cause and manner of death. The focus may also be on making recommendations as to the prevention of similar deaths if such recommendations are appropriate in the particular case. Although, the decision as to whether or not to make such recommendations in this particular case will be determined by the Fatality Inquiry judge, it is clear that the Fatality Inquiry process already recognizes the interests sought to be protected by the Applicants through publicly-funded legal counsel.

[37] With respect to the third Okanagan criterion, the Fatality Inquiry is clearly of public importance. However, the Applicants have not demonstrated “special circumstances sufficient to satisfy the court that this case fall within the narrow class of cases where this extraordinary exercise of its powers is appropriate”: Okanagan at para. 36; Caron at para. 6. The Fatality Inquiry will continue and conclude with the report of the inquiry judge, even without the order sought. The Applicant, Velvet Martin, will able to continue to participate as an interested party. I am not satisfied that a failure to grant the order sought will deny the Applicants the opportunity of having issues of public interest resolved by the fatality inquiry process.

[38] As the Applicants have not satisfied any of the Okanagan criteria, this is not an appropriate case in which this Court should exercise its narrow discretion to make an order for publicly-funded legal counsel for the Applicants.It is not essential to avoid an injustice in derogation of the public interest that this Court grant the order sought by the Applicants.

[39] Finally, in the context of a fatality inquiry, it is relevant to the issue of injustice that Applicants are not at risk of any incrimination by participating in the inquiry. The Act prevents the use of evidence given at the inquiry against the witness in any trial while the proceeding (other than for perjury) and obligates the inquiry judge to inform a witness that is about to give incriminating evidence of his or her rights under s. 5 of the Canada Evidence Act: Act, ss. 48,50. This further supports my conclusion that no injustice will be suffered if the Applicants are not granted an order for publicly-funded legal counsel.

VI. Conclusion

[40] In conclusion, I am not satisfied that the Applicants have demonstrated either that the tribunal is powerless to act or that it is essential to avoid an injustice that action be taken.

[41] The application for an Order requiring Alberta be ordered to pay the legal fees of Velvet Martin or the legal fees of her daughter Samantha Martin’s estate to assist Velvet Martin in participating in the Fatality Inquiry is, therefore, dismissed.

< * In other terms, Justice dismissed. Demonstrating sentiments of an Officer who confided, “Canada is a Legal System, not a Judicial System.” >

Heard on the 21st day of September, 2011.
Dated at the City of Edmonton, Alberta this 17th day of October, 2011.

John J. Gill


Robert P. Lee
Robert P. Lee Professional Corp.
for the Applicants

Doreen Mueller
Alberta Justice
for the Respondent

Young, Autistic and Locked Away

December 12, 2018

Young, Autistic and Locked Away

Eden Norris gets a kiss from his mother, Deborah Evans, during a brief visit in December 2017. Norris, who has autism and learning disabilities, has spent the last three years in a locked institution nearly 200 miles from the family’s West London home. (Perry Collins)

Truthdig is proud to present this article as part of its Global Voices: Truthdig Women Reporting, a series from a network of female correspondents around the world who are dedicated to pursuing truth within their countries and elsewhere.

“Eden has been locked away and left to rot,” says Perry Collins, a London cab driver. Collins is speaking of Eden Norris, his 26-year-old stepson, who has autism and learning disabilities and lives in a locked, privately owned facility nearly 200 miles from the family’s West London home.

Norris has spent nearly nine years in institutions, with only brief periods of living outside. His mother, Deborah Evans, is also disabled, due to incapacitating anxiety and panic attacks. The family is only able to visit Norris every two weeks because it’s a 13-hour round trip to his facility in Norwich.

“He’s entitled to have a family life,” Collins says. “It’s his human right, but instead he’s lost his life, and we miss him.”

Norris was voluntarily institutionalized when he experienced a crisis at the age of 17, which was worsened by lack of adequate professional support. He became extremely anxious, needing care his family could not provide at the time. This is not unusual—many young people falter when they transition from child-centered support in the formal education system into a patchier and cash-strapped system of support for disabled adults.

This transition period is when many—like Norris—are most at risk of being institutionalized. Inside poorly managed and underfunded facilities, many residents become distressed and act in challenging ways. The staff, who may be poorly paid and trained, often lack the skills to help them. Instead of receiving the support they need, patients are routinely restrained, overmedicated and segregated in cells, which they cannot leave for days, even months.

Although patients may have entered institutions voluntarily, they’re often not able to leave voluntarily. In Norris’ case, he was kept in long-term segregation in his first institution, where he had what his mother describes as “some meltdowns.” The staff, in reaction, pressed charges and applied successfully for a section 37 of the Mental Health Act, which “sections” a person, or allows involuntary institutionalization for an undefined period of time.

Norris has spent the past three years at the Assessment and Treatment Unit (ATU) at Cawston Park Hospital in Norwich. His parents say he is often kept sedated and that when he arrived, he was isolated and fed through a hatch. They also say that because of the medication he is given, he has chest pains and usually sleeps about 14 hours a day. Since entering institutions, his weight has soared from 210 to more than 300 pounds. (Andrew Gordon, director of communications at Cawston Park Hospital, says he cannot comment on individual cases.)

After an intense effort by his family, Norris was released briefly in December 2017 to live in a supported-living residence in London. Norris’ parents feel he didn’t receive adequate support and continuity of care in that residence, and although they provided support themselves, the placement broke down when Norris’ anxiety returned. He was returned to the hospital after a few weeks.

If their children have been sectioned, parents aren’t allowed to remove them from institutions without the approval of a psychiatrist or other responsible clinician. If patients do manage to leave, many are so traumatized by their experiences in a facility that they have more crises outside, and they end up back in inpatient settings. Some parents who have expressed concern about institutional conditions have been threatened with court orders.

Jeremy (whose full name is being withheld for privacy and family reasons) has highlighted the case of his daughter Beth on social media and the BBC. Beth, who has autism, has been held in seclusion in a facility for 23 months. The staff deemed her such a risk that, despite a lack of corroborative evidence, she was fed through a hatch. She is currently sectioned under the Mental Health Act. Jeremy’s local council, or governing authority, threatened him with a gag order when he tried to publicize her plight, but the council later backed down.

After a public outcry, Jeremy met with Matt Hancock, the U.K. health secretary. Beth’s case is being reviewed, and the family is campaigning to move her nearer to home and out of seclusion permanently.

Critics, including disabled people and their families, warn that while things may change for individuals whose cases reach the media, the system remains the same. Hancock has asked for a review of the seclusion system for people with disabilities, but many Britons—partly because previous initiatives have failed—are pessimistic that conditions will change radically.

Failure to Transform Care

The situation wasn’t supposed to be this way for patients and their families. After an outcry following a BBC investigation of abuse at the privately run Winterbourne View care home in 2011, the government promised to move people out of expensive ATUs where some people had been held for years. The cost of each placement was heavy then—more than $200,000 per year. It’s now even more expensive.

British citizens can access health care free of charge through the National Health Service (NHS). It runs and pays for ATUs, but local councils pay for care in the community. Critics say this payment system is one reason people spend so long in institutions. These critics feel that local councils, which are often strapped for money, hesitate to pay for community-based care when they can shift the costs to the NHS instead.

As the government slowly developed its ATU closure policy, other abuse scandals and tragedies followed, including the preventable death of 18-year-old Connor Sparrowhawk (known as LB), who drowned in a bath at an NHS facility in Oxfordshire in 2013. The Justice for LB campaign fueled demands for action and accountability regarding the treatment of people with disabilities in institutions.

In October 2015, the NHS and local government leaders published a $58 million plan, known as Building the Right Support. Under the plan, March 2019 was to be the closure date of England’s last NHS hospital for people with learning disabilities. It was also the date nearly half the 2,600 beds in ATUs would be eliminated. The government pledged to invest more money into community living instead.

The community living model covers a range of options including supported  environments in which disabled people live together with professional help; independent living in which disabled people can choose their own care providers such as personal assistants; and living without support in any kind of accommodation. This model tends to be less expensive than institutionalization, and it promotes inclusion in the community.

But the ATU closure process has stalled. Throughout the U.K., an estimated 3,000 disabled children and adults still are housed in ATUs and similar inpatient settings. The facilities are designed for short emergency stays, but many people remain for long periods. NHS data shows that people with a learning disability or autism who are sent to such units stay for an average of 5½ years.

A recent news investigation found that 40 disabled patients have died in ATUs in just 2½ years. Nine were under 35 years old. The institutions in which they died were scheduled for closure years ago.

A significant worry is caused by the fact that the number of children and young people in the system is increasing. A study by the Challenging Behaviour Foundation shows the number of children with a learning disability or autism in inpatient units grew from 110 in March 2015 to 230 in April 2018.

Steve Broach is a lawyer who works with U.K. families to challenge poor treatment of their loved ones. “We are going backward toward institutionalization,” he says. “The role of services is to get people to live a full life, but that isn’t happening.”

Families and specialists say the system is failing from childhood on. Younger children are also at risk of restraints, seclusion and physical harm in both special and mainstream educational settings. Elly Chapple, whose daughter was restrained and injured in an educational setting, is in touch with families experiencing similar issues. Many of those families believe the situation is at a crisis point in schools and ATUs. “There are hundreds of cases like Beth,” Chapple says. “She is the tip of the iceberg.”

Chapple is determined to see change happen. “Disability is the last taboo to break, and we are fighting for our place, and our children are still suffering,” she says. “Why else, in 2018, would we have children in cells?”

Lancaster University professor Chris Hatton charts the pathway that disabled young people follow into closed institutions. “So you have children who have had little support, getting shunted out of mainstream education and out of sight of society, despite the policy noise about early intervention,” says Hatton, who specializes in public health and disability. “And then these invisible kids have a crisis … (and then there is) a panic response, which is when the institutions appear on the scene, and you get a huge rise in young people entering inpatient facilities.”

Simone Aspis, who has learning disabilities, is a “self-advocate” who challenges the institutional role and supports patients who want to leave locked facilities. “The route into these institutions for young people with autism and learning disabilities is too easy,” Aspis says. She explains that the proof used to section patients is often based on behavior that is different and deviates from the norm, rather than on aggressive behavior. “A lot of young people … don’t get the support they need, their behavior gets difficult—and then they get sectioned,” she says.

Policy Versus Reality in the U.K. and Europe

As in the U.K., the concept of independent living for disabled people has become embedded in policy in the European Union and farther afield, but the reality of institutionalization remains dire. In the U.K., community living initiatives have freed many disabled people, leaving those with learning disabilities and autism at risk of being locked away. However, in many EU countries, people with a range of conditions, including sensory and physical disabilities, remain in institutions.

More than a decade ago, the EU committed member countries to a deinstitutionalizationinitiative based on “shared European values of human dignity, equality and the respect for human rights.” The goal of the initiative was to transition disabled individuals from residential institutions to community-based care.

In 2014, the EU limited European Structural and Investment Funds to some member states, unless those states moved more residents into community living. Those member states—mainly in Eastern Europe but also including Greece—were forbidden from using two key EU funding pots to build or renovate institutions. Billions of euroswere spent on the initiative, but success was limited.

Human Rights Watch recently reported that, in the name of care and treatment, children with disabilities remain locked away, neglected and abused, restrained and malnourished throughout Europe. Central and Eastern Europe have the largest proportion of children in institutions in the world.

The rate of placement in formal care in these regions is alarming. In Hungary, large facilities with poor human rights records are scheduled for closure, but the government plans to build smaller facilities rather than move residents into the community. Human rights groups have protested this, but the European Commission has thus far refused to suspend funding.

In Greece, the children’s charity Lumosreports that children, many of whom have disabilities, are still being physically restrained and abused in institutions, with some even being caged in beds.

In Belgium, more than 5,000 disabled adults and children are being warehoused in poor conditions on behalf of the French state. French parents complain that their children are sent to Belgium and they are not offered alternative placements.

Even the policy of transitioning institutional residents to community-based care is in danger. As EU budget negotiations currently take place, proposed rules no longer make it a priority to promote the transition for people with disabilities. This means that building or renovating institutional care facilities could once again be eligible for funding, which would work against community placements for disabled people.

Organizations that campaign for the end to institutions in Europe are pushing back before the budget is set. European Structural and Investment Funds play a pivotal role in motivating and supporting the transition from institutional care to community-based living. Advocates of community living are horrified that the clock may be turned back and money earmarked for social inclusion may be used to segregate people with disabilities.

Profit Motive

In the U.K., an additional factor contributes to keeping institutions open: the profit motive.

While the British government runs many institutions via the National Health Service, some large corporations—including two U.S. health care companies—also run private-sector institutions in the U.K., and those facilities need clients.

It isn’t in the interest of those companies to promote community living, according to Alicia Wood, head of public affairs for Dimensions, a nonprofit that advocates community living for people with learning disabilities, autism and complex needs. “Every time there is a tragedy in a long-stay hospital, everyone wrings their hands,” Wood says. “Tackling the profit motive is an essential part of the changes that must happen to fix our broken system.”

Experts believe the U.K. government’s target to reduce the numbers of disabled people in inpatient settings by March of 2019 will almost certainly not be met. “Things may well change for individuals, but I don’t know if it has any bigger effect; instead there is an attempt to manage away the story,” Hatton says. “Bigger forces are swamping any attempt to do anything but tweak. Brexit has consumed everything at the moment. There is interest in scandal reduction, but not policy change.”

Aspis questions why Britain is using its resources on segregation rather than inclusion. “We are (one of the richest countries) in the world,” she says. “We can choose whether or not to lock people up.”

Eden Norris, for his part, has spent more than one-third of his life in locked institutions, despite having committed no crime. Perry Collins says the family has been told Norris may be able to leave soon to live in a homier setting nearer his parents. But that would be on a trial basis; because he has been sectioned, he can be recalled and locked away again.

Collins just wants his stepson to be reunited with the family in West London in time for Christmas. Collins says: “Every time we visit, he says ‘Mummy, I just want to come home. But they don’t listen to me.’ ”

(2011) BRA father’s right to love

December 12, 2018


BRA father’s right to love

Man reunited with son after epic secret court battle to win his liberty

By Andy McSmith and Jerome Taylor

Friday 10 June 2011 00:00 

The Independent


Mark Neary, the quietly spoken father who challenged the might of his local council, has won the final battle to secure the liberty of his autistic son.

In emotional scenes at the High Court, Hillingdon Council offered Mr Neary a public apology after a stinging ruling that it had breached a basic principle, when for almost a year it deprived 21-year-old Steven Neary of his liberty.

All social services departments across the country were warned by the judge not to abuse the power they have under the 2005 Mental Capacity Act to lock up people who are judged unable to make decisions for themselves.

It should only be used under “stringent conditions”, Mr Justice Peter Jackson said. “It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person’s best interests to be in the place at all.”

The Neary case is unique in British legal history because it is the first time that a judge has permitted almost every detail of a private hearing before the previously closed Court of Protection to be made public. The decision to open up the hearings was made after The Independent, backed by other newspapers, argued that the case threw up issues of genuine public concern about the treatment of people said to be “lacking mental capacity”. The judgment was accompanied by an order that prohibits publication of only a small numbers of details of the court proceedings.

Standing on the steps of the Royal Courts of Justice after yesterday’s hearing, Mr Neary said he could never have won the battle to get his son home again without support from the mass media. “We wouldn’t have been here today if it hadn’t been for the press involvement,” he said. He added that Steven had not been harmed or upset by the publicity.

He also praised the courts, which had been “absolutely brilliant”, from the first hearing last December when an order was made allowing Steven to go home, to yesterday’s “fantastic” judgment. “Hopefully other people will read this judgment and fight for what’s right for their kids,” he said.

Specialists in this field of law hailed the judgment as a breakthrough for family rights. “It’s a strong judgment and comes as a stiff warning to local authorities,” said Paul Ridge of the law firm Bindmans. “It’s a call to councils to wake up to the serious implications of detaining disabled people and splitting families.”

John Wadham, of the Equality and Human Rights Commission said: “This is a significant victory for the human rights of disabled people and their carers. [Steven] like everyone else, has a right to personal freedom and a family life.”

Mr Neary has won widespread respect for the persistence with which he fought for his son’s freedom. Yesterday, he was close to breaking down as he listened to the praise he received from the judge, who said: “Mark Neary is an unusual man and he can be proud of the way in which he has stood up for his son’s interests.”

For almost the whole of 2010, Steven Neary was denied the right to live with his father, who had looked after him for almost the whole of his 21 years, because the council’s social services department had decided that it would be in his best interests to be in council care.

On 30 December 2009, feeling ill and exhausted, he asked the council to look after his son, expecting that they would be reunited after “a couple of weeks”. Four days later, he was shocked to learn that social workers proposed to keep Steven in care while they decided what would be in his long-term interests. Looking at the record of a meeting of professionals on 15 January, Mr Justice Jackson concluded: “Hillingdon had by now decided that it would not let Steven go home, but had not revealed this to Mr Neary. Its approach was rather to manage his opposition.”

In February, a social worker sent an email to the support unit where Steven was being held, complaining about the father’s persistence. The email said: “There is always going to be something or other that Mr Neary will bring up and more often than not we are having to appease his needs rather than Steven’s.” Mr Justice Jackson said that Mr Neary “had done nothing to deserve this disrespect”.

In April, after Steven had wandered out of the unit where he was held, seized the glasses off a passer-by and thrown them on to the pavement, breaking them, the professionals decided to take out a Deprivation of Liberty Order. But they kept his father in the dark for three months, until Mr Neary was shocked to receive a letter in July telling him that Steven was to be kept in care permanently.

The judge said that by keeping Steven in a home against his family’s wishes, the council breached ancient rights that were written into the Magna Carta in 1215.

After the hearing, Linda Sanders, director of social care at Hillingdon Council, said: “I would like to apologise to Steven and his father. It is clear that there have been times when we have let both of them down.”

Liberty and open justice: A landmark case

June 2009 The Independent applies to attend proceedings at the Court of Protection, which until now have been kept secret.

30 December 2009 Mark Neary asks Hillingdon Council to take care of his son, Steven, for what he thought would be merely a few days while he recovered from an illness.

4 January 2010 A professionals’ meeting considers keeping Steven in care longer in order to assess his condition.

22 February 2010 A social worker complains about Steven’s father in an email, saying: “There is always going to be something or other that Mr Neary will bring up” – a comment which the judge said Mark Neary had “done nothing to deserve”.

11 April 2010 Steven escapes from care.

15 April 2010 An order is signed depriving Steven of his liberty, while his father is kept in the dark.

13 May 2010 A judge makes a landmark ruling in favour of The Independent’s legal challenge to attend a separate Court of Protection case.

8 July 2010 Hillingdon Council writes to Mr Neary telling him that his son will not be returning home. He decides to go public on the case.

23 December 2010 Steven’s case goes to court for the first time, where an interim order that he be allowed to go home is subsequently granted.

28 February 2011 A judge rules that the Neary case can be reported by the media for the first time, as Mr Neary describes in court how he felt “powerless” after the council prevented his son’s return home.

9 June 2011 Hillingdon Council apologises to Mark Neary after the court rules that Steven had been illegally detained.

Parents with disability live in fear of losing their children (2015)

December 6, 2018


(2015) Parents With Disabilities: These Moms Live In Fear Of Losing Their Kids

05/10/2015 10:11 EDT | Updated 05/11/2015 01:59 EDT

Parents With Disabilities: These Moms Live In Fear Of Losing Their Kids

“My kids were fully cared for. There was no danger to them. I did the right thing, but I got screwed.”

Patricia Tomasi  The Huffington Post Canada



Nicole Reid has been battling postpartum anxiety since the birth of her daughter five years ago. The symptoms include panic attacks, heart palpitations, worrying thoughts and insomnia. Her treatment plan includes medication and regular visits to a psychiatrist. Sometimes it takes a few tries to find the right med combinations, but Reid has remained committed to the maintenance of her mental health.

In April 2014, on the third day of starting a new prescription, she began experiencing a depression that left her emotionally and physically unwell. “I was throwing up, sleeping for hours and I’d start crying at the drop of a hat,” she says. “It was scary.”

The stay-at-home mom called her doctor, who told her she was likely experiencing side effects from the new meds. Since he couldn’t fit her in to his schedule immediately to change them, he advised her to go to the emergency room. So Reid and her husband went to their local hospital in Newmarket, Ont., leaving their two children with her brother-in-law.

A hospital crisis worker asked Reid about her medical history and the different kinds of medication she’d taken. She asked the 27-year-old mom about her plan for the care of her children while she dealt with her current situation. Reid told the crisis worker that her husband would care for them, and that she didn’t feel she was a danger to herself or anyone else.

After 10 minutes, the crisis worker ordered Reid to spend 72 hours in the mental health wing of the hospital for further evaluation, and the Children’s Aid Society (CAS) was notified.

“I was distraught,” remembers Reid. “I felt like she rushed to judgment. I felt like the depression and anxiety was clearly my fault because usually CAS only comes when there’s an issue with the family. But there was no issue.”

Reid spent the night at the hospital alone and afraid.

The next day a psychiatrist assessed her, deemed her not to be a threat to her children, changed her medication and Reid was allowed to return home.

When she walked in the door, her husband said CAS had called and would be coming to their home to interview them and their children.

Reid felt horrible. During the first visit, the CAS worker asked if she could speak with her 11-year-old stepson privately. “I wanted to say no,” Reid says, “But the CAS is kind of like the police. What am I going to say?”

Her stepson later told her the CAS worker asked him what Mommy does when she’s sad, whether Reid spent a lot of her time sleeping, if he was happy and if he wanted anything to change.

The worker also asked Reid to sign paperwork allowing CAS to speak with her psychiatrist. “I signed it because I was scared,” says Reid. “I didn’t know my rights.”

Three weeks later, the worker came back to do a follow-up interview. A month after that, Reid received a letter in the mail informing her that the investigation and case had been closed.

Reid isn’t alone in her experience. Disability advocates say mothers with mental and physical disabilities face greater scrutiny and are at higher risk of losing custody of their children than able-bodied mothers. And that possibility instills tremendous fear.

Fighting Stereotypes

Historically, society has been worried about people with disabilities becoming parents. Up until the 1970s, Alberta and B.C. had Sexual Sterilization Acts, under which the provincial governments had the power to force sterilization on targeted groups of people, including those with disabilities.

Even today, disabled mothers are often told that having children will “worsen their conditions, that their disabilities will be passed on to their children, and that they won’t be competent mothers,” says Bonnie Brayton, the executive director of Disabled Women’s Network of Canada (DAWN).

“When I was pregnant, I got a really strong message from my doctor and gynecologist that they didn’t think I should have another child,” recalls Brayton, who has post-polio syndrome.

“In reality, I could have. There was a lot of anxiety that they projected on me that I don’t know in retrospect was appropriate. I terminated the pregnancy.”

When they do have children, “the majority of parents with disabilities have a fear of their children being apprehended, because you know you are being watched — right, wrong or otherwise,” says Melanie Moore, who works with disabled parents at Toronto’s Centre for Independent Living. “Because you have a disability, you are at a greater risk of having CAS called.”

Moore is visually impaired and has a son. When he accidentally burned his hand on the stove (not an uncommon occurrence among kids), she rehearsed what she would say to the doctors and nurses in the taxi on the way to the hospital. She wanted to avoid a potential CAS investigation.

“The attitudinal barriers come from the larger community that think people with disabilities can’t parent,” says Moore. “We can.”

Parenting just looks a little different for those with disabilities. While Moore gets her son ready for school just like everyone else, “the aids that I may use to travel while taking him to school or daycare include: a guide dog or a cane,” she explains. “For myself, in preparing for work, I use a colour detector, which says what colour my clothes are. Some parents however, may need more supports if they have multiple disabilities.”

Story continues below slideshow:

Parenting With Disabilities


Rate Of Removal

The federal government doesn’t have a “single, official definition of disability,” but DAWN says a disability includes “mobility, sensory and intellectual or mental impairments, as well as chronic illness, mental health challenges or physical differences that limit functioning.”

According to Statistics Canada, approximately one million Canadians are parents living with mental or physical disabilities, and more than half are moms.

A 2012 report released by the National Council on Disability in the U.S. found that “removal rates” for parents with a psychiatric or intellectual disability were as high as 80 per cent, and parents who are deaf or blind report very high rates of child removal or loss of parenting rights.

“If you find those numbers astounding, I would suggest it’s higher in Canada,” Moore says.

One of the only Canadian reports on the subject was released last fall. It documented the experiences of 25 moms with disabilities, and was published by the West Coast Women’s Legal Education and Action Fund (LEAF).

The report concluded that mothers with a mental health diagnosis in Canada were three times more likely to have been involved with child protection services than mothers without a diagnosis.

Story continues below infographic:

parents disabilities

LEAF launched its investigation following the 2012 case of Maricyl Palisoc and Charles Wilton, an Ontario couple with cerebral palsy. Late in Palisoc’s pregnancy, CAS threatened to remove their baby unless they provided 24-hour care by an “able-bodied attendant.”

Cerebral palsy affects motor skills and speech and CAS workers were concerned over how the parents would physically care for their baby. Friends stepped in to help pay the cost of a full-time caregiver and their son, William, was allowed to stay.

A year later, in 2013, the Toronto Star followed up with the family in their home in an assisted-living facility. They have personal care workers on site around the clock and the couple is able to deal with much of William’s needs on their own.

“We both will help…William deal with whatever comes along as a family,” Palisoc told The Star. “We are not worried.”

The Power Of Fear

Although support services like the ones used by Palisoc and Wilton can help provide relief, the fear of scrutiny can prevent moms with disabilities from accessing the help they need.

“This happens to a lot of disabled mothers,” says Jewelles Smith, a project co-ordinator for DAWN who is based in B.C. “Even if they are struggling, they are afraid to ask for help, because you’re seen as a bad parent failing to meet all the needs of your children and it must be because of your disability.”

Smith, who is now collecting stories of moms with disabilities for her PhD, has post-traumatic stress disorder and spina bifida. When she was working on her master’s degree, stress caused her physical symptoms to flare up, and she was worried about what might happen if she reached out for help. Her sons were eight and 10 at the time.

“When the ministry becomes involved in any way, that’s when a high loss of custody occurs. And regaining custody is almost impossible if you are a disabled mother in Canada,” she says.

Risk Of Custody Loss

Toronto child protection lawyer Tammy Law is currently helping a client fight for custody of her seven-month-old baby. CAS apprehended the baby minutes after she was born in a Toronto hospital last fall.

Law’s client can’t read as a result of a severe cognitive disability. The court decided that places the baby in danger, so Law is working to get CAS and the courts to understand that despite her client’s disability, she is capable of parental care.

“We are getting her in touch with the appropriate support workers, getting the appropriate resources,” says Law, who wonders why CAS didn’t help with this before the baby was born.

Caroline Newton, communications director at the Ontario Association of Children’s Aid Societies, says all parents are asked the same questions during an investigation — regardless of whether they have a disability or not.

“About 90 per cent of the work we do with families and kids involve the child staying in the home. So it could be that as the system or the Children’s Aid Society works through that, they may have questions. They want to connect the mom or dad with local community resources, which might be able to support them in their parenting.

“But, in essence, it’s the same process that we use for all families. It’s based on parental capacity and there is this specific process that is in the eligibility spectrum. We don’t see it as a category of concern.”

Support And Solutions

Advocates disagree. Child protection workers and front-line health care staff must be better educated on how disabilities affect parenting, according to the LEAF report, and the government needs to provide better support services to make sure children can remain with parents with disabilities when its in the best interest of the child.

“Social workers across Canada are not really trained to understand what disabled mothering looks like,” says Smith. “They may not have experienced disability at all.”

Smith believes lawyers and judges also need to be educated on disabled parenting. “Those sorts of people in official positions need a reality check,” she says.

Bonnie Brayton, who heads DAWN, suggests improving support in the early stages as well. “Mothers with disabilities have unique parenting needs, including adapted cribs and change tables for mothers with physical limitations and flashing baby monitors for mothers with hearing impairments,” she says.

Research has shown adaptive baby equipment helps parent-child interaction, but Brayton says it’s not currently funded by the Canadian government. And accessing funded assistance is a separate hurdle. Personal care attendants are barred from helping disabled parents with their childcare tasks, so parents in need must apply for these services separately.

“Instead of a system supporting the most vulnerable mother who needs the additional support, she’s instead being made to constantly try to prove she can be a mother,” says Brayton.

Reid thought she was being a responsible parent by going to the emergency room. Six months after she filed a complaint with the hospital that called CAS, she received an apology. “The hospital would not issue anything in writing, which was frustrating,” says Reid. “All I got was: ‘I’m sorry this happened, but that’s our job.'”

“All I wanted was a fix to my meds. My kids were fully cared for. There was no danger to them. I did the right thing, but I got screwed.”

Patricia Tomasi  The Huffington Post Canada