These are the years and the walls of the ward,
the winds and clouds of the sea of board
sailed by the sailor
wearing the watch
that tells the time
of the cranky man
that lies in the house of Bedlam.
Elizabeth Bishop
Visits to St. Elizabeths
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I've been trying to make sense of the recent Human Rights decision in the case of three people cruelly confined in Nova Scotia institutions. It's long (108 pages), sometimes exasperating, puzzling, revealing, inappropriate. For now, I think it's a setback for disabled Nova Scotians and does, like Parker Donham says, abandon hundreds to a veritable Gulag.
It would be impossible to address every issue and keep your attention, so I plead guilty in advance to cherry-picking sections that struck me as particularly wrongheaded.
I don't know anything about Walter Thompson except that he writes well and at length and is the spitting image of the doctor who delivered me 70 years ago. I think the way to go about this is to pick out some quotes that strike me one way or another. Starting with the decision in blue and my response in dark.
I.
I am satisfied that the Province of Nova Scotia, on the facts and law as presented to me, withheld or limited access to benefits the Province provides to disabled people and prima facie has discriminated against Beth MacLean, Sheila Livingstone and Joey Delaney in the provision of or access to services or facilities on account of mental and physical disability contrary to section 5(1)(a) of the Nova Scotia Human Rights Act.
I am not persuaded, however, that the Province has prima facie discriminated against disabled people who reside in “institutions” generally or who are on a waitlist for placement in a community living service such as “Independent Living Support” or a small options home. No general rule may be applied to what, depending on the circumstances, may be an “advantage” or a “disadvantage”. (page 1)I'm puzzled that Thompson only compares the three complainants to others receiving benefits the Province provides to disabled people. That's like only comparing women's salaries to the salaries of other women, or the hiring of an African Nova Scotian to the hiring of other African Nova Scotians. "She is paid less, but not less than other women who are paid less". Isn't the correct comparison to all Nova Scotians? Since other Nova Scotians are never confronted with "institutionalization" as a government service, I think the point is fantasy and the Province has prima facie discriminated against disabled people who reside in “institutions” generally.
The Disability Rights Coalition made the argument well: "The provision of social services to “persons in need” discriminates between the disabled and the non-disabled by enabling the latter, but frequently not the former, to live in the community. "
II.
I expect that the Province might then argue that the Province should be excepted from a full finding of discrimination because of the multiple responsibilities of government to all its people, because of its rights to set priorities and dispense the public purse, because of the fiscal realities of a relatively poor province and because of the progress the Province is making to better take care of the disabled. (page 2)Don't get me started! Thompson posits that the best defense to a charge of discrimination is the necessity to discriminate. The Province is not a person, it has obligations, not rights.
III.
I do, however, feel obliged to resist Dr. Frazee’s evidence of an “ableist” systemic prejudice analogous to racism or sexism. If I am speaking from a position of privilege and am “un-woke”, then so be it. (page 60)No better example of ableism exists than the sainted Dean Richard Weldon of Dalhousie Law School who said of James McGregor Stewart "Serious physical defects should be considered as rendering a candidate ineligible for the Rhodes Scholarship." Unless it's Donald J. Trump making fun of a reporter with a movement disorder or students in Cape Breton making their classmate lie down in a brook. Or the Restaurant Association of Nova Scotia saying in a Human Rights submission "In our sector when we refer to the term “public” we are speaking about the general good for the largest number of people. This unfortunately does not include all people. There are many that we can’t serve for a variety of reasons, including; certain disabilities, people with various allergies, and some because there is an older building structure that can’t be renovated without substantial investment."
Or the government of Nova Scotia selectively enforcing regulations when they would be inconvenient when applied to wheelchair users. And on and on and on and on and on.
IV.
Much of Mr. Delaney’s distress relates to his bowels. He is chronically constipated and afflicted with gas. Staff have to deal with his need to defecate, to assist him with the process and to clean him afterwards. (page 22)There's way too much detail about the physical health of the complainants. Is this relevant? Page after page, as if it was the justification for locking people away. This would never be revealed in a FOIPOP. Perhaps there is some exception for Human Rights decisions, but it falls within the category of de-humanizing people with disabilities. We're talking about institutional failure, not the particularities of personal health.
V.
Ms Lill says disabled people and their families developed a huge amount of distrust and cynicism because of the difficulties faced in care and the difficulties in obtaining supports. She was asked whether cost was a consideration in placing people. She said that it was the unacknowledged elephant in the room in the Roadmap discussions. All were aware that any change in the paradigm would require money. There were also issues around bringing families to accept change and around the loss of the jobs involved in operating institutions. (page 29)
I am personally familiar with this argument. A change in the paradigm would require money. The Roadmap sets out principles and goals. It has some sensible suggestions for cost containment and additional revenues (like employing people instead of warehousing them) As far as I know. the finance gurus have never worked through any alternatives. They raise the specter of mass loss of jobs, implying that people with disabilities would be at fault. Blame the victim.
The following is a breakdown of the various service options and numbers of people using each service in fiscal 2016 — 2017: (page 70)
I've been asking for ten years but I've never seen these numbers. The cost column was added by me. As you can see, the $333 million program has 7,243 participants. The average annual cost is $46,021 per individual. I think this does NOT include administrative overhead. In the budget detail, the $333 million appears to be a pot of money paid directly to third parties. Thinking outside the box, there are opportunities for wealth accumulation (RDSP), independence (self administration), property ownership (co-ops, CEDEFs) and economic participation. Taxpayers support individuals with disabilities at $46,021/year and the government can't bother to be creative.
VII
Staff hear of general waitlists of five or even 10 years. (page 47)
The Complainants’ submission boils down to the argument that waitlists are prima facie discriminatory. I disagree. Some services can be rolled out as a matter of routine to people in general. Others will be more complex and will require a work up. Each disabled person will have to be assessed individually and a placement worked out with them for a placement that best suits their needs. I accept that finding an appropriate place for a disabled person may take time. (page 97)
In any event, and more importantly, the relationship between waitlists and discrimination is, in my view, to be determined individually on the basis of meaningful access as prescribed by Moore. The rule is meaningful access and meaningful access can only be determined in the individual case. (page 98)
there are some 1,100 people living in large, congregate care facilities and nearly 1,000 people are on waitlists for services as offered by the SPD program. (page 71)
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| From The New Yorker |
Thompson mentions waitlists 44 times. A waitlist of 1,000 names, growing, a half-decade cycle is merely a device to give the appearance of activity. It isn't real, people certainly die while waiting, yet Thompson considers it legitimate. It's used as a convenient way to kick the can down the road.
My impression is that the situation of people with disabilities has been set back. Thompson is not unsympathetic to the three complainants but his concern did not extend to awarding compensation. The two-stage process Thompson proposes may be based on some legal nicety, but it is a distinction without a difference. Thompson is unwilling or unable to imagine that another approach is achievable and concludes, as the un-woke always do, with a reference to cost.
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