CHARLOTTETOWN — A Supreme Court judge in Prince Edward Island has admonished the office of the provincial health minister, saying the minister treated the family of a woman with autism in a "deplorable" manner and repeatedly failed to live up to his legislative duties while the woman's father faced accusations of sexual assault.
Justice Nancy Key has awarded the woman's mother more than $61,000 in costs for months of legal wrangling while she fought for legal guardianship of her daughter, who was cut off from visits with her family.
"The Minister of Health refused to carry out his statutorily mandated obligations to the detriment and great expense, both emotional and financial, of the...family," states the decision. "The Minister of Health and its designate must be held accountable."
'A vulnerable child in an adult body'
The decision, dated March 9, also cites failures by Queen's County Residential Services Inc., which operates eight residential care homes in P.E.I., in its treatment of the parents and their 35 year-old daughter.
The Canadian Press has decided not to identify the woman and her family.
The 34-page decision describes the daughter as "a vulnerable child in an adult body" who was diagnosed years ago with severe autism and is "virtually non-verbal" with developmental issues. It says the daughter, who requires full-time care, lived in various group homes operated by Queen's County Residential Services starting at the age of 21.
Trouble began in January 2015 when officials with Adult Protection, a program operated by the Health Department, followed up on allegations that her father had sexually assaulted his daughter over a 22-year period. Though the father was never charged, he was prohibited from having any contact with his daughter on Feb. 7, 2015.
Justice Key's decision says the daughter allegedly communicated the accusations against her father to several of her caregivers through a widely discredited technique known as facilitated communication, which involves a facilitator using physical support and other means to help a person point to pictures, objects, words or a keyboard.
"Had (the daughter's) caregivers, but more particularly the minister of health, followed its own legislation and conducted an investigation ... it would have become clear very early on in the course of the files (that the daughter's) communications were not the 'communications' of (her) but were the communications of the facilitators," says the decision.
Experts say the method should be used with "extreme caution."
It adds that the health minister, through Adult Protection, ignored concerns raised by the lawyer of the girl's father about the validity of facilitated communication, which has been around since the 1970s. Experts say the method should be used with "extreme caution" and that "a high number of sexual abuse allegations" have been associated with it.
Samantha Hughes, a spokeswoman for the Health Department, said the province's health authority was reviewing the decision but offered no further comment. Doug Currie was minister of health at the time of the case but was succeeded in January by Robert Henderson.
Efforts to speak with Currie, who is now minister of education, were unsuccessful. Government communications staff just pointed to the Health Department's statement that the decision was being reviewed.
As valid as 'data gathered via a Ouija Board'
In her decision, Justice Key quotes excerpts from various reports on similar cases involving facilitated communication, including one that said, "the data presented here lend no more support to the validity of the alleged sex abuse incidents than data gathered via a Ouija Board."
The decision says the minister failed in his obligation to properly investigate the allegations by not providing any other evidence supporting the daughter's ability to communicate apart from affidavits of her caregivers. It also says the minister failed by appointing a lawyer for the daughter, despite the fact that she could not consent.
Requests by the mother to have her daughter examined by experts she hired were repeatedly ignored. Eventually, two experts — including Adrienne Perry, an Ontario-based clinical development psychologist and Howard Shane, the director of the Autism Language Program at the Boston Children's Hospital — eventually performed assessments at the request of the mother's lawyers.
In their reports, the experts stated "the allegations could not have been made by (the daughter) but rather were the allegations of the facilitators, (the daughter's) caregivers," says the decision.
The minister issued an order prohibiting all of her family members from visiting her, "without providing any rationale whatsoever."
The decision also says caregivers claimed the daughter had communicated that she did not wish to have visits with her mother outside of the group home. The minister also issued an order under the Adult Protection Act prohibiting all of her family members from visiting her, "without providing any rationale whatsoever and with no grounds for doing so."
"Their intransigence reached a peak on June 25, 2015, when (the father's) brother, (the daughter's) uncle, died," states Justice Key. "No access to (the daughter) was provided to the family, friends or extended family of (the daughter) during what would have been a very emotional time for the family."
The decision says the minister also filed an application seeking leave to intervene in the mother's application for guardianship. That decision was eventually withdrawn.
The parents were jointly appointed as their daughter's guardians on July 30, 2015. She was returned to their care within days.
The decision says the minister of health has 30 days to pay the costs.
"As a general comment, the state, in this instance the minister of health and wellness and the province of Prince Edward Island and its designate, Adult Protection, should not be permitted to trample on the rights of a vulnerable member of society, and, as a result, her family members," says the decision.
By Melanie Patten in Halifax
With files from Kevin Bissett.
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