J.J.: Family Court and the Protection of Vulnerable Adults
In March 2005, the SCC released Nova Scotia (Minister of Health) v. J.J., 2005 1 S.C.R. 177, 2005 SCC 12, an appeal from the Court of Appeal for Nova Scotia. This case deals with the protection of mentally and physically challenged adults and looks at the breadth of the jurisdiction of the Family Court regarding proposed plans by the Minister of Health for the care of vulnerable adults.
Since December of 1998, the appellant, a woman named J.J., lived in institutional care at a Nova Scotia Hospital. On March 23, 1999, Legere J. of the Family Court found that she was an adult in need of protection according to s. 9 of the Adult Protection Act, R.S.N.S. 1989, c. 2. This Act allows for assistance to be provided to adults in need of protection and helps the individual who uses the services to “enhance the ability to care and fend adequately for himself or will protect the person from abuse or neglect”. According to s. 3, the definition of an individual in need of protection is one who “because of physical or mental disabilities, is unable to protect himself or herself from physical, mental, or sexual abuse; or who does not or cannot provide for his or her own adequate care and attention because of physical or mental disabilities.” J.J. was found to fall under this category based on her impulsive, violent behaviour and failure to take her medications. Later in March, a plan of care was developed which allowed J.J. to live in her own apartment with 8 hours of daily supervision for a trial period. She agreed to return to the hospital for care if the plan was breached and she failed to take her medication. A consent order was also signed that authorized the Minister of Health to provide her with supervision in her apartment. J.J. remained in the Nova Scotia hospital, however, as funding was never approved for the in-home supervisors.
In September of 2000, the Minister, who was responsible for the administration of the Act, sought an order removing the plan and implementing a new proposal for J.J. to be placed in a facility outside the Halifax Regional Municipality. Legere J., after reviewing the new order, concluded that the Minister’s new proposition was adverse to J.J’s welfare and failed to enhance her ability to care and provide for herself. While Legere J. authorized the Minister’s services, she ordered that the plan to place J.J. in a facility outside of Halifax would be prohibited. The Minister appealed this finding and the Court of Appeal concluded that Legere J. had gone beyond her jurisdiction by preventing the Minister from placing J.J. in a facility outside of Halifax. In coming to this decision, the Court of Appeal unanimously decided that according to s. 9(3)(c) of the legislation, the court’s role was limited to whether it was in the adult’s best interests for the Minister to provide them with services. Having determined that it was best for J.J.’s welfare to be provided with the Minister’s services, the court was limited to either accept the Minister’s proposal for services, or approve no plan at all.
J.J. appealed this ruling to the SCC, which allowed the appeal and found that Legere J. of the Family Court did not violate her jurisdictional boundaries by imposing terms on the Minister’s proposal for the care of a vulnerable adult. In coming to this conclusion, the SCC explained that the interpretation of s. 9(3)(c) of the Act must be consistent with the Act‘s purpose, that being to “provide adults who cannot protect or care for themselves with access to services which are in their best interests and will enhance their ability to look after or protect themselves”. The primary purpose of this act is consideration for the welfare of the adult and the Family Court is given responsibility for reviewing the state’s decisions regarding the interests of these adults to ensure they are compatible with the purpose of the Act. As Abella J. explained, “This in turn requires the court to be able to indicate to the Minister what aspect of the plan the court, as statutorily designated guardian of the adult’s welfare, finds acceptable or unacceptable based on whether it meets the statutory test”. By giving the Family Court the role to review and oversee the plans proposed by the Minister, they must be able to to amend proposals that are suggested by the Minister, or else the Family Court will be “deprived of its supervisory function”. Abella J. went on to explain at paragraph 23,
The corollary of a judicial determination that an adult is in need of protection is a corresponding limitation on that adult’s autonomous decision making and liberty. It is the function of the court to monitor the scope of that limitation. The legislation must, therefore, be interpreted in a way which acknowledges the intrusiveness of the determination and offers muscular protection from state intervention incompatible with the adult’s welfare.
This decision is particularly important for adults with mental and physical disabilities who may potentially qualify as candidates for care under the Adult Protection Act by providing them with an additional safeguard for their well being. By allowing for the Family Court to review and potentially amend the Minister’s proposed plan of care, individuals under this Act who may otherwise be unable to care or fend for themselves, will have their welfare and interests protected by an impartial adjudicator. Considering the vulnerability of the adults who fall under this Act and the potential for “short-cuts” in providing services by government in an attempt to save money, I believe that the ability of the Family Court to review proposals for care and services is imperative to the success of the Act’s objectives, these being to enhance the ability of the person to care and fend adequately for himself and protect the person from abuse or neglect.