On October 12, 2005, the BC Supreme Court upheld a 2004 decision by the BC Human Rights Tribunal to allow Cheryl Hutchinson to pay her father as a caregiver with funds from the Choices in Support for Independent Living (CSIL) program run by the Ministry of Health. The decision followed a January 2005 hearing, where the government appealed the tribunal decision.
The government has been ordered to change its policy to allow for payment to family members who provide support to a family member with disabilities where that is the most appropriate option. The provincial government declined to appeal the decision further.
The decision found the Ministry's adherence to a policy limiting the scope of funding through the CSIL program discriminated against both Cheryl Hutchison and her father Phillip Hutchinson, who was providing full-time care. The court ordered the Ministry to cease the discrimination against the Hutchinsons, to pay them both compensation, and to modify its policy to create exceptions to the scope of funding. The timeline for implementing this change is anywhere from four to nine months, and the process of revising the policy must be transparent. Minister of Health George Abbott said the ministry would need at least two months.
A tribute is due to Cheryl Hutchinson and her father Phillip for persevering through a long and arduous process to pave the way for a positive social policy change. The full decision by the Hon. Mr. Justice Cullen (HMTQ v Hutchinson et al, 2005 SCBC 1421) is available at: http://www.courts.gov.bc.ca/jdb-txt/sc/05/14/2005bcsc1421err1.htm.
On Friday, November 19, 2004 the Supreme Court of Canada issued its decision on the Auton (Guardian ad litem of) v. British Columbia (Attorney General) case. The Court upheld the BC Government's appeal of a lower court decision ordering the government to fund early intervention therapy for children with Autism and Autism Spectrum Disorder.
BCACL issued a press release November 19 expressing disappointment that the Court did not reinforce access to publicly funded disability related supports that people with disabilities require to exercise their equality rights. The Canadian Association for Community Living, which acted as an intervenor in the case, also issued a press release. While the Court did not rule in favour of families raising children with disabilities in this case, the case succeeded in raising awareness and stimulating public discussion of the need for better disability supports in Canada.
For the Supreme Court of Canada’s full written decision click here.
The B.C. Human Rights Tribunal ruled on June 29, 2004, that a government policy that bans people with severe disabilities from hiring relatives as personal care attendants is discriminatory (C & P Hutchison v. HMTQ). However, the provincial government has filed an appeal of the decision.
Cheryl Hutchison has a serious form of cerebral palsy and requires 24-hour care of an intimate nature. She receives services under the Choices in Supports for Independent Living (CSIL) program, an individualized funding program that allows people with disabilities to arrange their own caregiving according to their needs and hire the caregiver of their choice. The program is designed to maximize dignity and independence for people with severe disabilities who might otherwise be living in chronic care facilities.
However, the CSIL program had a blanket policy that prohibited recipients from hiring a relative. Cheryl Hutchison successfully challenged that policy in a Human Rights Tribunal, represented by Frances Kelly, a disability rights lawyer with the Community Legal Assistance Society in Vancouver.
Though she tried, Ms. Hutchison could not find a reliable caregiver she trusted as much as her father. She says she feels safe and secure with him because he truly understands her needs. Phillip Hutchison raised Cheryl from the age of 13, as a single parent.
The Ministry of Health argued that they could not create exceptions to the rule, as the floodgates would open and it would be too expensive for government. The tribunal rejected that argument, saying that the government had not shown that creating a policy allowing for limited exemptions, on a case by case basis, would prove too costly.
The government was ordered to give Ms. Hutchison the opportunity to hire her father, and to come up with a policy for the CSIL program that allows for exceptions on a principles basis, within nine months of the decision. The government was also ordered to pay Mr. Hutchison $105,000.00 in wage loss for the services he provided.
On Wednesday, July 14, B.C.'s Attorney General indicated the government's intention to appeal this decision by seeking a judicial review. The BC Coalition of People with Disabilities has urged the government to stop the appeal. Click here for news story.