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Bruce v London Health Sciences Centre, 2014 HRTO

How does the Bruce case fit with this Blog’s theme of mothers, care & the law?

Well, in this case, Ontario mother Janet Bruce filed an application at the Ontario Human Rights Tribunal in which she alleged discrimination against her late daughter, Robin Dawn Bruce. Bruce is fundamentally a decision having to do with care and a litigating mother and the issue of disability rights.

Janet Bruce alleged specifically that London Health Sciences Centre discriminated against her daughter because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19.

Ms. Bruce claimed that London Health Sciences Centre provided her daughter Robin with inadequate care because she was an intravenous drug user. According to Ms. Bruce, their alleged discriminatory treatment of her daughter led to her untimely and tragic death on January 29, 2010.

The Claim: That Ms. Bruce’s daughter Robin attended at the ER roughly 20 times between 2005 & December 2009 for the treatment of infections consistent with “CA-MRSA”. According to Ms. Bruce, she & her family sought to provide physicians with information relating to her Robin’s worsening health.

Ms. Bruce alleged that physicians responded with ‘reckless disregard’ for her daughter’s life. She claimed there are strong and compelling reasons to believe that stigma towards her daughter’s drug addiction led the respondent to provide care that fell below standards that typically would be provided to patients who are not addicted to drugs.

The legal (evidentiary) issue as stated by the hearing officer that was at the heart of this case was whether Ms. Bruce can point to evidence, beyond her own assumptions or beliefs, that can establish that her daughter experienced discrimination under the Code.

The Tribunal held that there is no reasonable prospect that evidence Ms. Bruce has or that is reasonably available to her can show a link between the care provided by the respondent and her daughter’s disability.

Why do I share this case?

I share it for a few reasons. One reason is that is shows that mother’s are bringing cases to adjudicative bodies with complaints in the area of the overdose crisis and in so doing exposing problems with care more broadly within it.

I share it because mother’s (and others) are at the vanguard of pushing for immediate change in how we think about and legally regulate substances so that our children can survive or so that other people’s children can survive the toxic street drug supply.

I share it because we need to extend how we think about ‘care’, as being something centered in compassion and as such a something that openly embraces all those ensnared in the crisis wrought by the current situation.

Mothers of stigmatized children have always claimed their children are entitled to nothing less than the best care available. And that the care in question must be delivered at a reasonable standard given the relevant context. Its why we are out there advocating and litigating. Photo below of myself & Deb Watson taken by Lorna Thomas a founding member of Moms Stop The Harm, in Vancouver in 2019. For more on Moms Stop The Harm visit https://www.momsstoptheharm.com/

The File of Kristine Gravel- McKeague & her baby daughter Pénélope Ottawa 2009

I have to say that my “Slow Blog” is beginning to look like a fast one!

This, like my second Blog post were examples of cases that I presented at a talk I gave in 2011 at The School of Nursing at York University https://nursing.info.yorku.ca/ entitled Making the Link: Public Policy and Mothers of Children with Disabilities in Canada (pictured here on the right after I had presented this talk (with Dr. Nazilla Khanlou).

Truth be told I’m purloining my own earlier work!

To provide a bit of background about Kristine whose photo appears above, she’s a married Mum & has a supportive spouse. When Pénelope came along Kristine had a child already. She was therefore an experienced mother.

Also note worthy in the context of this Blog Post, Kristine holds a degree in Sociology and Childhood Studies from Roehampton University in England. She’s a family support worker at a major community service centre. She had studied infant massage.

What more training might you need for motherhood you ask?

And indeed, Kristine believed that with her professional skills, her specialized education & her solid social support system, and her deep love of Pénélope that she could cope with being a complex care mother. She found in her case that was not so however.

When she sought state assistance for care and support for Pénélope she came up against some controversial provincial care policy.

Kristine had asked the province (the then Ontario Ministry of Community and Social Services) for a placement for Penelope in a care centre where she, Kristine, would continue as Pénélope’s Mum, making all decisions for her daughter’s care. This became thorny and the care facility stated they needed custody to be able to make medical decisions for Pénélope since the baby would be in their care. Kristine was advised that she would have to enter into a legal process and relinquish custody of her daughter to the Province in exchange for the care and services they both badly required. Moreover, as Kristine was to learn, this loss of custody would legally be deemed to be available as a result of the legal abandonment of Pénélope by her parents under the child welfare provisions.

Thus, state wardship was offered in lieu of voluntary care. This is a curious situation since state care would not be in the best interests of Penėlopė & accessing it this way surely engages Kristine’s constitutional rights under The Canadian Charter of Rights and Freedoms. It was a lose-lose for mother & child.A bigger conversation than this post allows here.

As well, the state wardship option was not designed to support this mother’s mental health, and in fact this approach to care has had, and continues to have, just the opposite effect on women’s mental health.

Indeed this very thing was claimed in a lawsuit brought against Ontario by another mother, Anne Larcade, in an Ontario Court in 2002. I will Blog about the 2006 Ontario Court of Appeal decision in the Larcade case another day. For now suffice it to say that Anne Larcade, in both a Maclean’s Magazine interview and also in The Star online, where asked Ontario “Where’s The Humanity?” That was many years ago now in solid piece of journalism by Tanya Talaga. It is a questions mother’s in such disputes continue to ask across Canada. See https://www.thestar.com/news/ontario/2009/07/23/wheres_ontarios_humanity_mom_asks.html

Interested in that now? You can look at the article Appeal Court Overturns Disabled Children’s Lawsuit by Karen Howlett in the Globe & Mail from November 26, 2006. https://www.theglobeandmail.com/news/national/appeal-court-overturns-disabled-childrens-suit/article971953/

Anne was a single working mother of two. She was not in a minority as a single caregiving mother in North America. Most children with disabilities are being raised by single mothers, as disability rights scholar Levine showed in 2008).

Moreover, the Literature tells us that among employed married middle aged Anglophone parents of children with disabilities with diverse diagnoses 42% of parents demonstrated symptoms of psychiatric distress (Thurston, et. al, 2011). The solution for mental and emotional distress in Caregiving Mothers is not child loss. It is child support.

I note that both mothers, Anne and Kristine, ultimately obtained care in Ontario, without child loss, after each entered into a dispute with the province and each presumable entered into negotiations for care with them as well. Not all mother’s are capable of that. What about them?

The above photo of Kristine & Pénelopé was featured in Parents of Disabled Kids Face Agonizing Choices by Author & Journalist Tanya Talaga in The Star at https://www.thestar.com/life/health_wellness/2009/06/24/parents_of_disabled_kids_face_agonizing_choices.html

Wood v Ontario (Director of Children with Severe Disabilities) (2009), Decision 0908-07140 (OSBT)

This Blog post concerns a now-ten year old Ontario social benefit case. It concerns a (then) young girl. Grace lives with a rare condition called Di George Syndrome, which is a complex congenital heart condition. Her family received funding at the purportedly maximum amount available under the Assistance for Children with Severe Disability Program (ACSD). This was approximately $410 a month, according to the case.

Grace’s funding was cut off when Grace’s father (John Wood) was informed by the Director of the ACSD Program that he earned too much money to continue to receive ACSD benefits. It was decided that his income exceeded the upper amount one can earn and still access disability support for one’s severely disabled child.

Mr. Wood appealed internally to the Ontario Ministry and he effectively lost his appeal. He was provided with a drug benefit card of $25 value. However he already had comprehensive drug coverage for his daughter Grace under his plan at work.

He then took the matter to the Ontario Social Benefit Tribunal to have a Hearing Officer there examine his case.

John Wood’s income was $91,924. However, it is notable that his family had spent $23,000 the prior year to care for Grace, which included air fare and accommodation for a life saving and rare surgery undertaken in Edmonton that could not be performed at Sick Kids Hospital. Grace’s mother stays home to care for Grace. They have another child. 

Decision: The Ontario Social Benefits Tribunal Hearing Officer held that pursuant to s3(1) of the Act household income was but one factor to be considered by the Director, but so too were other expenses, and that $25 was not consistent with the purpose of the ACSD program.

The ACSD program had what the Tribunal member described as a “self-imposed” guideline and noted that it was not law, but rather, it was discretionary.

Moreover, the Hearing Officer found that the situation warranted the use of discretion so that the flights could be paid for. The Tribunal member further stated that in being bound by the law, the Director must consider all of the issues and she determined that the Wood family ought to receive $430 a month, the maximum amount under the program.

 Comment: It has been a stated priority of that Ministry to support families of children with disabilities of all kinds. The issue is on provincial government radar.  Yet, policy difficulties that speak to support issues persist. For example, based on my information, the last time quanta of support for eligible children and parents for the ACSD Program was adjusted for inflation was in 1998 and it was at 5.4%. That is over 20 years ago now.

For a child with health and care needs such as Grace, $430 is but a drop in the bucket of needed funding. I will continue with this important issue in other case discussions that will appear on my Blog.

More on this Blog post can be found here, where the photo of Grace is also from: Canadian Journalist and Author Tanya Talaga. The Star July 30 2009 https://www.thestar.com/life/health_wellness/2009/07/30/end_of_benefits_for_disabled_girl_perplexes_dad.html

What Would Florence Say? Intensive Care of Medicalized Children At Home

My talk featured in this webinar relates to the topic of this Blog & is entitled Support of Maternally Complex Care in Medicalized Childhood Settings: From the Trenches of Litigation

A Children’s Healthcare Canada Webinar October 15 2019

Speakers: Marcy White M.S.W., M.B.A. @MarcyFWhite Donna Thomson BFA, BEd, DTIE @Thomsod Sheila Jennings M.A., LL.B., PhD. @SheilaKJennings & Samadhi Severino M.A., PhD student @samadhimora

Florence Nightengale was a nurse most famous for raising an alarm socially and politically to relay that wounded soldiers were being being delivered poor care by overworked medical staff in the face of what she saw as official indifference. Today, publicly funded pediatric homecare programming in Ontario is identified as a setting where serious care-related problems are being encountered by mothers with complex care children. In this series of talks and discussions, four mother-advocates who have themselves provided extensive complex care at home, talk about the problems they and others have experienced. They further suggest steps that need to be taken in order to ameliorate the delivery of care at home to highly vulnerable and medically complex children in Ontario. These advocates, from diverse backgrounds, have published and spoken publicly about their concerns.

This webinar is delivered in four parts as follows:

  • What does Success Look like For Us? Should we Place Solutions in Health  Care or Community or Both? (D. Thomson)
  • Support of Maternally Complex Care in Medicalized Childhood Settings: From the Trenches of Litigation (S. Jennings)
  • Lack of Trained Staff in the Community to Nurse Kids Who Live at Home: Impacts on Families of this Health Care Failure. (M. White)
  • Building Capacity Through Policy and Lived Experiences for Children with Medical Complexity and their Families  in Ontario (S. Severino)

Re photo of the child and her mother was taken at a hearing where the mother was dealing with the issue of “whether health regulators were right to insist she get 18 hours each weekday of nursing care for her daughter, and fewer on the weekends, instead of the 24 hours her daughter’s pediatrician says are necessary.” This quotation is from an important article by by Carol Marbin Miller & The Miami Herald entitled “How Florida limits care for its most medically fragile kids” which may be found here: https://www.tampabay.com/news/how-florida-limits-care-for-its-most-medically-fragile-kids/1268935/

To Be Negligent Or Not To Be Negligent? That Is The Question.

Ryan Dobson with his mother Cynthia and his maternal grandmother

This is the very first post on my new blog! Stay tuned for more & subscribe below to get notified when I post new updates.

This wonderfully warm photo was taken by Diane Doiron of the National Post back in 1999. https://www.fact.on.ca/newpaper/np99070m.htm In it we see caregiving mother Cynthia Dobson with her laughing young son Ryan and the maternal grandmother, also interviewed by the National Post.

Cynthia & Ryan were involved in a tort case, along with Cynthia’s father who acted as guardian ad litem for Ryan. Cynthia was situated in an adverse relation to her young son in this case, which you can access at Dobson (Litigation Guardian of) v. Dobson, 1999 CanLII 698 (SCC), [1999] 2 SCR 753, <http://canlii.ca/t/1fqkz>, retrieved on 2019-11-27.

Dobson v Dobson (Litigation guardian of) was heard in the Supreme Court of Canada. In this, my very 1st Blog Post, I provide a Case Brief and Commentary. So, first I provide a basic case brief of Dobson. And then present my commentary which offers a few thoughts on what was going on in this case from the legal perspective of a caregiving mother.

The Dobson case involved a car accident that happened in very bad weather. A pregnant woman, Cynthia Dobson, was driving the car. The accident she was in caused serious physical injury to her fetus and the fetus was subsequently delivered by c-section the day of the accident.

The Maternal grandfather of Ryan, acting as litigation guardian sough to assert that his daughter Cynthia owed a duty of care to her son, Ryan. This raised some thorny legal issues in the area of motherhood. I will speak to that issue after I relay how the court examined this situation.

The primary legal issue identified by the court in this case was whether or not Cynthia Dobson (and pregnant women more generally) can be found liable for injuries caused to a fetus as a result of their own actions.

The Supreme Court of Canada decided that even though the relationship between a women and a fetus met part of the legal test in a duty of care analysis (reasonable foreseeability and proximity for legal negligence) for public policy reasons the court would not impose a duty of care on Cynthia Dobson.

Thus a fetus, when born, could not sue their own mother. The reason the matter was decided this way, was that the court found that imposing liability on a woman when pregnant threatened her bodily integrity, her privacy, and also her autonomy.

The court clarified that a child ‘born alive’ could sue a third party for injuries caused to them before their birth, but they cannot sue their own mother in a like way.

The reasoning of the court was that if a duty of care was found to exist between a mother and her ‘unborn child’, then mothers more generally would find themselves legally liable whenever engaging in activities that could potentially cause injury to a fetus were she pregnant. This would then impact all pregnant women as well as those who may become pregnant one day.

Moreover, the prospect of conducting a trial against one’s own mother could have significant emotional ramifications and harm the relationship, opined the Supreme Court of Canada. Ultimately, the court determined that this was a policy issue for the legislature to tackle and no duty of care was imposed on Cynthia Dobbson.

Justice Major did not agree with the majority of the other judges. He found that while a mother had no duty of care to a fetus, she does have a duty of care to a child (born alive), so long as she knew or should have reasonably known that she was expecting at the time the incident took place. He found there to be no legal nor public policy reason to decide against a pregnant woman being liable in this manner on the basis that it would restrict the mother’s freedom.

His opinion was that this pregnant woman did not have a right to be a negligent driver, and therefore the ‘born child’s’ claim does not impede on any legal right of the pregnant woman. To summarize his view, to grant a pregnant woman immunity from the consequences of her conduct would set up a legal conundrum since it would give an advantage to a defendant that no other defendant in tort law would have.

Law’s Mum Case Commentary

Graeme Hamilton (see link above) wrote that this “landmark” case “rallied forces on both sides of the abortion debate and led Supreme Court justices to muse over the rights of a foetus.”

First – the National Post wrote that Cynthia Dobson was driving her car toward Moncton from the family home & was following her husband’s vehicle along with other drivers on a windswept highway. Her car hit a pile of slush & she swerved into the other lane, crashing into a moving truck.

So, what was and is the Dobson really about? What was it that they sought and why did they need to attempt this legally drastic action?

As stated when interviewed by The National Post the family stated the law suit was “about looking after Ryan.” It was about care. It was about support. Of a child with a significant medical condition.

“It’s being done for Ryan’s benefit and Ryan’s benefit alone,” said Ann MacAulay, half of the wife-and-husband legal team representing Ryan. Bev Price, Ryan’s maternal grandmother stated in the same interview that “It’s suing the insurance company for Ryan’s sake,” added . “That’s what it has always been.”

The “problem” was, that to be able request that the insurance company pay out, Ryan — represented by his maternal grandfather, Gerald Price, as litigation guardian — needed to be able to sue his own mother in tort, for legal negligence. As the National Post writer noted, no child in Canada had sued their own mother for injuries sustained while she was pregnant.

I address this case to make one point only.

It is that mothers with severely disabled children frequently agree to socially & legally risky things in order access support & care for their medically disabled children. Dobson is nothing new in this particular regard.

In this case, had the Supreme Court of Canada found that young Ryan could sue his own mother in negligence, and had he been able to show that she had breached a duty of care that caused his condition, then that would effectively have operated as nasty precedent in the life of his mother. Such a finding would ‘legally colour’ how she was perceived outside of tort law. And even socially. And as the court noted, there could be harmful emotional aspects as well.

Were child welfare authorities to investigate the family, as is too often the case where there are grossly under-supported mothers with medically complex kiddos & youth, their investigation would uncover that Cynthia Dobbs had already been found legally negligent by a court.

Although the test for negligence under child welfare legislation is not the same as it is in tort law, contrary to the children’s song sticks and stones, names (like “negligent mother”) can cause legal damage down the road.

Dobbs was prepared to assume all of that risk, for Ryan. For his future care. So that his needs could be met. She would not have appreciated that it may also have made him more legally vulnerable.

All of which means that Dobson v Dobson was not at all what it was framed as at the time. It was about disability care & support in the context of #complexmothering. And it was about the extraordinary lengths a caregiving mother would go to to access it.

How was that missed you may wonder? It was missed because complex care of infants and children is way off the radar in law. Not only in tort law but in many areas of law where mothers seek support. It was missed because it was not the issue that went before the court. The practice of finding ways and means to access support for severely disabled children is much the same now, as it was in 1999, when this cases was decided. Mothers try this way and they try that way, and as in Dobson often times they do not prevail.

Sheila Kathleen Jennings

I was inspired to create Law’s Mum by two insightful Canadian Bloggers. One of them is known simply and mysteriously as ‘Claire,’ <http://severedisabilitykid.blogspot.ca/&gt;, (link sadly down) while the other is Donna Thomson, whose Blog “The Caregiver’s Living Room” is well known, as is she.

Law’s Mum aims to fill a gap in the Blog-Sphere. I Blog about complex care, supports, mothers, law & policy. I do this in a factual manner & I also provide critical commentaries. These have to do with of how law deals with mothers & their claims for support & recognition.

This Blog joins the other Blogs where status recognition is being fought for.

It’s my hope that Law’s Mum will be interesting to those who are curious about some of the legalities in this area of care and support law. And also to those who support the status recognition of caregivers more broadly.

I also hope Law’s Mum will be relevant to the lives & hearts of women & health care providers who do the lion’s share of medical care for medically fragile children, children with medical complexity or children who otherwise have severe disabilities or rare conditions.

A bit about myself. I’m the mother of three amazing young adults. I enjoy spending time with them & their partners. I like to read, especially autobiography & biography. I’m a Francophile who enjoys reading romantic historical fiction in French. I write poetry & I’m passionate about walking with the various dogs in my wider family. My partner & I are self-proclaimed film buffs & we both like to cook.

I am a non-practicing member of the Law Society of Ontario. I hold a Canadian and a US law degree. I have an MA in Critical Disability Studies from York University, undertaken in my 40’s. The area of my research was pediatric home care in the context of human rights & provincial experiences (with a focus on Ontario). I have a PhD from Osgoode Hall Law School with my dissertation entitled “The Right To Support: Severely Disabled Children & Their Mothers.”

I’m presently involved in several projects across Canada & I’m continually learning through projects which aim to improve the lives of mothers who provide complex care and of course of their children and families as well.

Last, but not least, I’m an advocate with and in the national leadership of Moms Stop The Harm (MSTH). MSTH is a network of Canadian Families whose loved ones have died from drug related harms or who have struggles with substance use. https://www.momsstoptheharm.com/

Photos not referenced to specific media links are my own photos and they are subject to copyright (c)