Court Finds Disabled Adults Can’t Count on Needed Provincial Support

The services that British Columbia provides to adults with disabilities are unreliable and inconsistent, a B.C. Supreme Court judge has found.

Justice David Crerar’s reasons for judgment released Dec. 24 noted recent problems with Community Living BC’s current services and detailed uncertainty about what would be available in the future.

“The plaintiff’s concerns about being forced to rely upon the CLBC program are not hypothetical, idiosyncratic, or unreasonable,” Crerar found.

The plaintiff in the case is a 17-year-old, referred to in the judgment as H.D., who six weeks after birth “suffered a deliberately inflicted brain injury.”

She had been born prematurely to a 15-year-old mother “in a household marked by multigenerational illegal drug use, commercial sexual exploitation, mental illness, and verbal and physical violence.”

Despite the risk, the Ministry of Children and Family Development failed to intervene early enough to protect H.D. and conceded in court that it was liable as it had fallen below the standard of care. The Public Guardian and Trustee of BC acted on H.D.’s behalf.

As a result of the brain injury, H.D. has intellectual and learning deficits, extremely low inhibition, extremely low academic performance, trouble communicating, social impairment, anxiety and other significant disabilities.

Since infancy she had been looked after through foster care that MCFD funded.

At the age of 19, however, H.D. would transition out of the ministry’s care and into services provided by Community Living BC, the Crown corporation that provides services to adults with disabilities.

MCFD and the public guardian agreed on the amounts that H.D. should be paid for various damages, including future care and her loss of earning capacity.

But the province argued in court that the value of the benefits to be provided through CLBC should be deducted from the settlement. Doing so would drop the damages award from as much as $13 million down to $2 million.

The public guardian argued H.D. should be able to opt out of CLBC programs and use the entire amount to fund her own care.

Drawing heavily on a 2009 precedent from the United Kingdom, Peters v. East Midlands Strategic Health Authority, the decision rested largely on legal arguments supporting the plaintiff’s right to choose care that would allow her to live in a manner that was as similar as possible to what her life would have been like if she had not been injured.

Crerar also ruled on what model of 24-hour care was appropriate, supporting H.D.’s proposal over the province’s.

“As a matter of personal autonomy and dignity, the plaintiff, through the PGT, may well be in a better position to ensure attentive and appropriate care on the free market than to rely upon governmental delivery of such services,” Crerar found. “Her stated preference for this approach cannot be criticized as unreasonable.”

Since H.D. was six weeks old, she had lived with a foster family on a remote rural farm near the Alberta border. She could have some independence on the farm, riding horses or doing chores under general supervision, but “cannot be left alone on the farm for any sizable period of time.”

She would never be employable or be able to drive, the judgment said. “She cannot structure her life: she cannot make appointments for herself, take herself to appointments, or co-ordinate any activity of daily living without prompting and assistance.”

There was agreement among the parties that H.D. would need 24-hour care for the rest of her life, which the judgment said could be another 65 years since there was no evidence that her life expectancy would be any less than the Canadian female average of 81 years.

The parties disagreed, however, on whether CLBC should, or could, be counted on to deliver that care into the future.

While the government publicly funds care for people in situations like H.D.’s through CLBC, that doesn’t mean she can’t opt out and fund her own care, the judgment said.

“The fact that she may be entitled to receive those benefits, at least under their present definition, does not indicate that she is required to rely upon the government for such benefits for the rest of her likely long life.”

The situation had changed since 2011 when the court considered a similar case and concluded it was likely there would be ongoing assistance through CLBC or similar programs, Crerar’s judgment said.

“With increasing strains on the public purse, there is no guarantee that those benefit programs will continue in their present form or otherwise, over the likely 65 or so years left in her life,” it said.

“I am satisfied that the present evidence before this Court indicates that CLBC is more tenuous and discretionary than whatever evidence was presented in 2011 to reassure [the court] of its likely perpetual availability as a universal benefit.”

The judge also cited a 2021 report from B.C.’s auditor general that found CLBC had failed to implement a sufficient monitoring framework for home sharing providers and the case of Florence Girard, a 55-year-old woman who died from severe malnutrition “while ostensibly receiving care through a CLBC shared living program in her personal home.”

In 2022 Girard’s caregiver was found guilty of failing to provide the necessaries of life, and a coroner’s inquest into the death is scheduled to start today.

The evidence included details from CLBC service plans and other documents that the lawyer for H.D., Robert Gibbens, cited in court. The agency is expecting demand for its services to grow much faster than the province’s population. “This demographic bulge, with reflective pressure on CLBC resources, is driven by advances in health care, increases in life expectancy, and increased youth and Indigenous referral rates.”

Despite the growing demand for services, there is a limited number of people “with the necessary skill, patience, training, and integrity, who are willing to make the personal sacrifice of taking a person with significant disabilities into their care or residence,” it said.

“The CLBC representative confirmed that recruitment was an active challenge for the organization, and that this challenge would worsen with the demographic bulge,” the judgment said. “In order to attract such care providers, it may be necessary to pay them more in the short-term and long-term future, again, from a limited budget strained by increased user demand.”

There was no guarantee that CLBC services would grow to meet what will be needed, especially considering the requirement that the agency balance its budget, or that policies that help it recruit and retain service providers would continue.

The care available to individuals depends on CLBC policy decisions and provincial funding choices, the court found.

“Even if those programs continue to exist in some form, the CLBC has considerable discretion as to what care assistance a given individual will receive in any given year, leading to further uncertainty,” the reasons for judgment said.

“There is no guarantee that the plaintiff will be categorized at a specific level of care, or receive certain care and services: that will depend on CLBC (or other) officials, as well as governmental funding and policies, and delivery limitations.”

A CLBC representative acknowledged in court that there is no guarantee that an individual will receive a particular level of care, or any support at all, even if they are assessed as requiring it. “The documents and the testimony reiterated the principle that eligibility does not mean entitlement.”

Crerar summarized, “There are many moving parts beyond the control of the plaintiff and the PGT that may well affect the availability and level of the care assistance, generally, and specifically to the plaintiff. Further, her eligibility and level of care may vary from year to year.”

In cross-examination, the CLBC representative agreed that it was fair to say people needing services are on wait-lists.

“Some of the services offered through CLBC are wait-listed due to funding limitations and, in some remote communities, a lack of service provider availability,” the judgment summarized.

Due to funding and policy differences between MCFD and CLBC, families making the transition “are sometimes startled that they're not getting the same level of attention and care they did under MCFD,” the representative acknowledged.

Self-funding instead of relying on CLBC would give H.D. more ability to change caregivers or the care arrangement if needed, Crerar found. It would also mean she could move to another province, he said, noting that CLBC services are available only in B.C. and that there is a lot of cross-border migration with Alberta in the region where she lives.

Other court decisions had recognized CLBC’s limitations, the reasons for judgment said.

“These decisions illustrate that an entitlement to a notional standard of care is limited in reality by government funding, CLBC financial restraints, and ultimately, broad CLBC discretion, which is not always exercised reasonably, fairly, or consistently.”

Crerar ruled that H.D. was entitled to choose a lump sum award so that she could self-fund her care as long as she promised not to in future seek CLBC benefits or other disability benefits funded by the province. The lump sum would be instead of the government benefits, not on top of them.

“This option will best provide autonomy and security for the plaintiff,” wrote Crerar. “It will best accomplish the impossible compensatory task of placing her in the position she would be in but for the defendant’s tortious neglect. She should not be forced to place herself at the discretion of the less desirable, secure, or certain mode of government programs for the 65 or so years remaining in her life.”

A spokesperson for the Ministry of Children and Family Development took questions on behalf of the government, including about CLBC’s role.

“Unfortunately, as this is still an active litigation, the Ministry cannot comment,” she said.

She did not respond to followup questions about the possibility that the province will appeal the decision.

CLBC declined to respond to detailed questions about H.D. because it is “active litigation” until the appeal period ends, and about Girard’s death because it would be “inappropriate” to say anything publicly that might be seen as influencing the inquest.