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Nova Scotia human-rights case seeks to establish right to supported housing for people with disabilities

Tammy Delaney at Emerald Hall in 2015 with her brother, Joseph Delaney, one of the complaints in a landmark human rights case. Emerald Hall is an in-patient ward of the Nova Scotia Hospital, which is the province’s largest psychiatric-care facility.

Courtesy of Vince Calderhead

A Nova Scotia human-rights case set to begin Monday will shine a light on the province's long-standing policy of housing people who have disabilities, and require social assistance, in locked psychiatric facilities instead of providing community-based options.

Years in the making, the case was first brought to provincial legal aid by desperate residents who had spent years in institutions they could not freely leave. Now before the Nova Scotia Human Rights Board of Inquiry, the case could transform the lives of hundreds of people with disabilities who require support but want to live in home-like settings.

It could also set a national precedent for other human-rights actions where people with disabilities believe that being forced to live in institutions in order to receive publicly funded care is discriminatory.

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"This is the first case in Canada in which people with disabilities are claiming their right not just to live in communities but to receive public assistance," said Vince Calderhead, a Halifax-based lawyer representing three of the four complainants, in an interview with The Globe and Mail.

"It squarely raises the question of when governments provide assistance, supports and services for low-income people, generally, do those with disabilities also have the right to receive those supports and services in the community?"

Mr. Calderhead, a nationally renowned poverty-rights lawyer, will argue that discrimination on the basis of physical or mental disability in providing government "services or facilities" is a violation of provincial human-rights legislation.

The complaint, filed in 2014, names Nova Scotia's Attorney-General, the Minister of Community Services and the Minister of Health and Wellness as respondents. The complainants are two residents who have lived for years at Emerald Hall, an in-patient ward of the Nova Scotia Hospital, which is the province's largest psychiatric-care facility. A third resident, Sheila Livingstone, is listed on the original complaint but died in 2016. The Disability Rights Coalition (DRC), an advocacy group, is listed as the fourth complainant.

"Our clients have waited a very long time for this opportunity to tell their story – this group is largely segregated and isolated, put in a place where people are not free to go," said Claire McNeil, who represents the DRC, in an interview. "People here are shocked. They are not aware these institutions exist or the number of people who live there."

Last Thursday, a provincial spokesperson told The Canadian Press that the province is working to improve the Disability Support Program and to create more small-home options. More than 1,000 disabled people are awaiting a transfer to a different housing option or location.

Beth MacLean, 46, is one of them. She has been institutionalized since 1986 and lived at Emerald Hall for more than 15 years. According to the complaint, Ms. MacLean suffers from "mild mental retardation and mood disorder."

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"I don't want to live at Emerald Hall. I want to live in a home, on a street in a neighbourhood and to live a normal life," her complaint reads. "I can't leave the hospital when I want to. None of the patients, including me, are free to come and go."

Without financial resources, Ms. MacLean is "completely dependent on the province for whatever residential settings the province makes available." Most of her life has been spent in locked institutions.

Her living conditions have deprived her of a chance to work and participate in her community, Ms. MacLean's claim argues. It goes on to say that her only barrier to living in the community has been her ability to pay for it – and the province's failure to make up the gap.

"As I a result, I continue to languish in a locked psychiatric ward that I neither want nor need and which is actually harmful to my health and full development."

Joseph Delaney, who will be represented at the hearings by his sister Tammy Delaney, lived in small group homes until 2010, when he was admitted to Emerald Hall due to some temporary health complications. While he was in hospital, Mr. Delaney's group-home placement was removed. He remains at Emerald Hall today.

An external review of the facility conducted in 2006 estimated that half of Emerald Hall's 19 or so residents at the time were in the institution in a more restrictive setting than necessary.

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"A non-disabled person in the province … who experienced an acute mental illness and recovered would not likely be held in a locked psychiatric ward for up to ten years or more years post recovery," the report read. It called the practice "inhumane."

David Baker, a Toronto lawyer who specializes in disability litigation, said in an interview that Canada is trailing behind the United States in this area. A 1999 U.S. Supreme Court case affirmed the right of Americans with disabilities to receive state-funded supports in the community rather than institutions.

Mr. Baker forged some progress on the issue in Ontario when, in 2016, he won a settlement from the province after challenging the its caps on community-based funding for people with complex care needs. But thousands of disabled people who could live in community-based settings remain in long-term care facilities across the country, Mr. Baker said.

"Your whole life is built around the schedule of the institution. You don't have access to the world outside," he said. "It takes away your personhood, your ability to make life choices that are important."

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