Proposed N.S. law aims to give adults with intellectual disabilities more independence

The provincial government has rewritten a law struck down last year by the Supreme Court of Nova Scotia for infringing on the rights of those with intellectual disabilities.

The Adult Capacity and Decision-Making Act was introduced in the House of Assembly on Monday afternoon.

In 2016, the province's Supreme Court declared the Incompetent Persons Act invalid during a challenge brought by then-25-year-old Landon Webb. The young man had been fighting to overturn his "mentally incompetent" status, saying it infringed on his right to liberty and security of the person.

At the time, Webb's parents were his legal guardians.

Brenda and Darrell Webb had their son declared "mentally incompetent" in 2010, saying they felt he needed to be protected as he functioned at the level of a 10- to 12-year-old. Webb had been diagnosed with autism spectrum disorder and obsessive compulsive disorder.

The couple gave up their guardianship on the same day the Supreme Court ruling came down.

The province was given until the end of this year to bring forth a new law that would conform with the Charter of Rights and Freedoms.

'Autonomy and self-determination'

On Monday, Justice Minister Mark Furey said the Webb family was consulted on the new law. Landon Webb was sent a copy of the proposed law through his lawyer, Furey said, but never contacted the province with feedback.

The new law is comprised of a number of new provisions including a presumption of capacity and an affirmation of the rights of all adults "to autonomy and self-determination." It also replaces the "all or nothing" aspect of the previous law that the Supreme Court found objectionable.

Those deemed to be incompetent will also no longer have every aspect of their lives controlled by someone else. Instead, court orders will specify which activities a person needs assistance with.

Someone declared incompetent when it comes to handling their own financial affairs, for example, could still be allowed to choose where they live or what to do with their free time.

Striking a balance

Furey called the new bill a balance of rights and obligations.

"The proposed act makes clear that any action taken or decision made for the adult should be taken in the least restrictive and least intrusive manner possible," he said.

"The act will do two things," he told reporters during a bill briefing. "It will promote people's right to dignity and autonomy and it will work to protect their physical well-being and financial interests when that is needed."

The proposed legislation was designed to preserve an adult's autonomy as much as possible, Furey said.

The act also places limits on the power of the court decisions, including a possible time limit on guardianship orders, the right of the adult in question to ask for a review of their case, and a complaints process if someone deems the guardian to be overstepping the bounds of an order.

Guardians will also have a duty to keep the adults in their care informed of "significant decisions" regarding control over their lives. They will have to consider that person's prior instructions, wishes, values and beliefs when making decisions on the person's behalf.

'Falls short'

But a professor at Dalhousie University is taking issue with some aspects of the new law. Archie Kaiser says while it's an obvious improvement, it also "dramatically falls short" when it comes to promoting inclusion and equality.

His chief concern is the lack of concrete supports for adults. 

"I don't understand why supports have been so, on the one hand ... tantalizingly mentioned, but never really endorsed within the legislation. So that's a big problem with it," said Kaiser, who teaches law and psychiatry.

Kaiser is also concerned about orders that were under the old law that are being grandfathered in, "which I don't understand at all," he said.

He wants all orders to be reopened to determine whether they comply with the new legislation.