2021 NLSC 147, 2021 NLSC 147

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : C.R. (Re) , 2021 NLSC 147 Date : November 9, 2021 Docket : 202101G6307 IN THE MATTER OF an application by the Labrador-Grenfell Regional Integrated Health Authority for an Order of Guardianship of the Person of C.R. Restriction on Publication: The proceedings in this case, including these reasons, are subject to a non-publication order made by the Honorable Justice Daniel M. Boone on the 4th day of November, 2021. Further details of the Order may be obtained from the Registry of the Court at 309 Duckworth Street, St.

John, NL. Before: Justice Daniel M. Boone Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 5, 2021 Date of Oral Judgment: November 5, 2021

Summary: A Health Authority applied for an Order for guardianship of the person of a woman with cognitive disability. The court applied the decisions of the Court of Appeal in A.A. and Z.B. and granted the application. The court rejected the request to apply a temporal limit to the guardianship based on a time certain or a scheduled application under the Adult Protection Act . Appearances:

Koren Thomson and Sarah A. Pinsent Appearing on behalf of the Applicant Mackenzie Hughes Appearing on behalf of the Respondent Jackie Pelletier, Q.C. Appearing on behalf of Her Majesty in Right of the Province of Newfoundland and Labrador Janie Bussey, Q.C. Appearing on behalf of Eastern Health Judith F. Rae Appearing for Mushuau Innu First Nation Authorities Cited: CASES CONSIDERED: A.A. (Re) , 2019 NLCA 7 ; Z.B. v. Provincial Director of Adults in Need of Protective Intervention , 2020 NLCA 17 STATUTES CONSIDERED: Adult Protection Act , S.N.L. 2011, c.

A-4.01 ; Mental Health Care and Treatment Act , S.N.L. 2006, c. M-9.1 ; Advance Health Care Directives Act , S.N.L. 1995, c. A-4.1 REASONS FOR JUDGMENT Boone, J. : INTRODUCTION [ 1 ] C.R. is 24 years old. She has a medical history of schizoaffective disorder and substance abuse disorder. She is intellectually disabled. She has been assessed by several health care professionals as being an adult in need of protection within the meaning of the Adult Protection Act , S.N.L. 2011, c. A-4.01 (the “ APA ” ).

A hearing to determine if she should be declared an adult in need of protection is set to be heard by a Provincial Court judge on November 16 through 18. Labrador-Grenfell Health is in the process of developing a service plan that will provide for the medical, social, and housing needs of C.R. [ 2 ] C.R. currently is admitted as a voluntary in-patient at the Waterford Hospital. However, as her psychiatric condition is stable, she does not meet the criteria under the Mental Health Care and Treatment Act , S.N.L. 2006, c. M-9.1 for certification and treatment as an involuntary patient.

However, her treating professionals are concerned that if she leaves the Waterford then she is at considerable risk of harm from self-neglect, and, due to her particular vulnerabilities, from others. [ 3 ] Therefore, Labrador-Grenfell Health asks this Court to appoint a temporary guardian of the person of C.R., to make decisions for her until the Provincial Court decides whether she is an adult in need of protection. [ 4 ] C.R. is Innu and a member of the Mushuau Innu First Nation Band. She has resided in Natuashish most of her life.

The Mushuau Innu First Nation supports the application for the temporary appointment of a guardian, so long as the order provides that the guardian will collaborate and consult with the Mushuau Innu First Nation regarding a service plan for C.R. [ 5 ] I have decided for the reasons that follow that a guardian of the person of C.R. should be appointed and that Sandy Penney should be appointed as guardian.

ISSUES [ 6 ] The Court of Appeal in A.A. (Re) , 2019 NLCA 7 , held that this Court has the jurisdiction derived from the parens patriae jurisdiction of the Court and from statute, to appoint a guardian of the person of someone who, due to mental disability, is unable to properly care for themselves or to make decisions relating to that care. The Court of Appeal set out the principles that the Court should consider and apply when deciding whether to exercise that jurisdiction. From that statement of principles I derive the following issues that I must resolve before deciding whether to appoint the guardian: 1.

Is C.R. unable to adequately protect or care for herself?

2. Is there another means than a guardianship order to provide for the care and protection of C.R.? 3. Has C.R. been given notice of and an opportunity to respond to this Application or is there reason to dispense with notice? 4. If a guardianship order is necessary, then what is the least intrusive scope of order required? 5. If a guardianship order is necessary, then how many guardians should be appointed and who should they be? 6. If a guardianship order is necessary, should the guardian be required to post security?

ANALYSIS Is C.R. unable to adequately protect or care for herself? [ 7 ] The Court of Appeal in A.A . refined the test of this principle as follows: 76…in order to justify an order appointing a guardian of the person related to general care, the applicants must establish on a balance of probabilities that the person in question: (

i) is unable to understand the information that is relevant or necessary to make a decision about his or her personal care; or (ii) is unable to appreciate, or reason in respect of, the reasonably foreseeable consequences of those decisions or of failure to make those decisions. 77 The areas of personal care to which the Court should direct its attention are the basic ones related to functional living such as matters of feeding and nutrition, shelter, clothing, health, travel, hygiene and safety. [ 8 ] The Court noted two further considerations that inform the approach of the Court to this question: first, the Court ought to avoid setting too low a standard for the capacity to make decisions; and second, the applicant must establish its position through specific, reasoned, professional opinion rather than affidavits using boilerplate or standardized language. [ 9 ] Labrador-Grenfell Health (LGH) has filed three Affidavits in support of the Application.

These are all detailed, and provide support for their conclusions based on their professional credentials and their knowledge of C.R.’s history. [ 10 ] The Affidavit of Dr. Christine Mikail swore to the following material facts: • Dr.

Mikail is a practicing psychiatrist and is employed as a Regional Consultant Psychiatrist with LGH; • She has personally, as a psychiatry resident and as a psychiatrist, worked with C.R. since December 2019 and has met in that capacity with C.R. while she was both an outpatient and inpatient more than 10 times; • Her Affidavit is based on her own knowledge of C.R. but also on review of medical records and assessments of other health care providers; • C.R. has been diagnosed with Schizophrenia, Intellectual Disability, PTSD and Polysubstance Use Disorder; • Because of her disability, C.R. lacks the cognitive ability to make decisions regarding where she will live, or her medical care, or her finances; • C.R. has a long-standing history of homelessness and is barred from shelters in each of Natuashish, Sheshatshiu, and Happy Valley-Goose Bay due to past conduct; • C.R. has a history of personal trauma and has reported that she has been sexually assaulted during previous periods of homelessness and is vulnerable to further sexual assaults as she is not aware of alternatives to consent; • C.R. became pregnant while living in the community but was not aware of that until receiving medical care; • On previous occasions, C.R. has been certified under the Mental Health Care and Treatment Act but is currently not certifiable because her psychiatric condition is stable and she does not need to be admitted as an involuntary patient for treatment purposes; • C.R. does not have the ability to understand or decide even simple financial matters;

• Dr. Mikail is concerned that if C.R. returns to the community on her own, she is vulnerable to physical, sexual, and emotional abuse; and to psychiatric deterioration because she won’t take prescribed medications, leading potentially to prolonged periods of psychoses. [ 11 ] The Affidavit of Loretta Toope swore to these material facts: • Ms.

Toope is a social worker employed with LGH; • She has worked with C.R. since July 2021; • She has met with C.R. on several occasions; • Her Affidavit is based on her interactions with C.R. and also on information learned from meeting with, and reviewing the reports of, other members of C.R.’s support team; • C.R. was admitted to an LGH facility in July 2021 as a social admission because she did not have anywhere to live, and with the exception of a brief period stayed at the hospital until October 18, 2021; • During her admission, C.R. participated in an Adult Needs Assessment, a Speech-Language Pathology Assessment, an Occupational Therapy Assessment and a Psychological Assessment; • The Psychological Assessment concluded that although C.R. does not require 24-hour supervision, she needs a supported living arrangement because she requires intensive support for any decision-making related to healthcare, physical, emotional, psychological, financial, and legal needs; • The Psychological Assessment also noted that C.R. has an extensive history of trauma, but that her cognitive deficits limit her ability to appropriately manage her emotions and impulses, which in turn has led to police intervention but most importantly to eviction from housing; • The Adult Needs Assessment noted that C.R. has a history of homelessness punctuated by periods of imprisonment and hospital admission, that she has been evicted from homeless shelters in Labrador and that she has no family members with whom she can stay; • C.R.’s mother told Ms.

Toope that C.R. could not live with her, and she was not able to care for her; • C.R. wishes to leave the Waterford Hospital and return to Natuashish, but there is nowhere in Natuashish for her to live; and • She has made an Application to Provincial Court for an order that C.R. is an adult in need of protection and that application is pending; [ 12 ] The Affidavit of Kelly Miller says: • She is a social worker employed by LGH as a Mental Health Case Manager; • She has personally interacted with C.R. since February 2021 and has met with her four times per week since June 2021; • Her Affidavit is based on her personal interactions with C.R., meeting with other members of the support team for C.R., and review of her medical records; • A colleague of hers met with C.R.’s mother who told her that C.R. required assistance with all aspects of daily living; • C.R. lacks the capacity to live in the community independently because she does not have the ability to make financial, medical, housing, and personal-care decisions; • C.R. is unable to understand reproduction and self-care during menstruation, had a recent pregnancy medically terminated but cannot remember that and was not aware that she was pregnant until told at the hospital; • LGH is taking steps to create a suitable independent living arrangement but that arrangement is not ready yet. [ 13 ] Sherry George filed an Affidavit in support of the Application for guardianship, which said as follows: • Ms.

George is employed by the Mushuau Innu First Nation Health Commission as Senior Health Manager/Administrator; • She has been involved with planning efforts to assist C.R. since June 2021; • Based on the information and assessments, which also informed the other affiants, she believes that C.R. is extremely vulnerable and that her health and safety would be at serious risk if she is not provided with support; • Mushuau Innu First Nation does not have the ability to provide the complex specialized care that C.R. requires; C.R. does not have a home in Natuashish and that there is no location within Natuashish able to safely house her; • She is in contact with C.R.’s family and there is no family member in a position to provide the kind of care and support that C.R. needs; • Chief Nui Mushuau Innu First Nation supports the application by LGH for an order for guardianship, but on condition that the Court add a term to the order requiring that the guardian consult and collaborate with Mushuau Innu First Nation as to service planning

and implementation; • Mushuau Innu First Nation intends to remain involved with C.R. and to work with LGH toward creating an independent living plan. [ 14 ] The Affidavit evidence filed in support of the Application is anything but boilerplate.

The Affidavits were sworn by professionals who each have had significant contact and interactions with C.R. and include information specifically related to her history, her deficits, and her needs. [ 15 ] The Affidavit evidence demonstrates on a balance of probabilities that C.R. is unable to understand the information needed to make decisions about her personal care, and is unable to appreciate the reasonably foreseeable consequences of her decisions, or her failure to make those decisions.

I am satisfied that if left on her own, C.R. is at considerable risk for self-neglect and is extraordinarily vulnerable to harm from others. Is there another means than a guardianship order to provide for the care and protection of CR? [ 16 ] The Court of Appeal in A.A. noted that an order for guardianship should be made only when less restrictive means are not available. [ 17 ] In this case, the only possible other processes for consideration are the warrant process under the APA and the substitute decision-maker process under the Advance Health Care Directives Act , S.N.L. 1995, c. A-4.1 .

The emergency warrant process under the APA Emergency intervention 23(1) Where a director or social worker believes (

a) that an adult is in need of protective intervention; and (

b) a less intrusive course of action that would adequately protect the adult is not available, the director or social worker shall file an application with the court for a warrant to remove that adult. 23(3) Notwithstanding subsection (1), where a director or social worker has reasonable grounds to believe there would be an immediate risk to the adult's health and safety if no action were taken during the time required to obtain a warrant, the director or social worker may enter a premises or vehicle or board a vessel or aircraft, by force if necessary, to remove the adult without a warrant . 23(11) The provincial director shall, within 2 clear days of an adult being removed (

a) under the authority of a warrant issued under subsection (2); or (

b) under the authority of subsection (3) make an application to a court under

section 21 and a court shall hear that application within 2 clear days of the making of the application. [ 18 ] The Court of Appeal recently considered in detail questions related to the

interpretation of the APA . In Z.B. v. Provincial Director of Adults in Need of Protective Intervention , 2020 NLCA 17 . In that case, Z.B. was under the care of the Manager of Child Protection and was about to turn 18 on a weekend, at which time he would have “timed out” of the care of child protection. Therefore, the Director made an application for and was granted an order under the APA for the detention of Z.B. for a period of six months during which an investigation could be completed as to whether Z.B. was an adult in need of protective intervention. [ 19 ] The Court of Appeal engaged in a process of statutory

interpretation and concluded at paragraphs. 94-95 that the warrant powers under the APA did not support long-term detention. [ 20 ] The Court did not delineate the line between short-term and long-term detention under an APA warrant. However, at paragraph 40 of the decision, Butler, J.A. noted that s. 23 of the APA would have provided for detention of Z.B. “over the weekend.” Although she did not refer explicitly to subs. 23(11), restricting the definition of short-term detention to two days is consistent with that provision,

which requires that a person detained pursuant to s. 23 be the subject of an application for a declaration under the Act within two clear days. [ 21 ] A narrow

interpretation of the APA does not support a decision that detention following a warrant under s. 23 could last for the time between now and the date scheduled for the hearing before Provincial Court. [ 22 ] The Court of Appeal in Z.B. did note that under s. 23(1) (

b) of the APA , a s. 23 warrant would only be available if “a less intrusive course of action that would adequately protect the adult is not available.” The decision of the Court that s. 23 did not give authority to detain beyond the short term, but that the jurisdiction of the Court to make a guardianship order did, is a clear indication that the guardianship process should be considered a “less intrusive course of action” than a guardianship order. [ 23 ] Therefore, even if the warrant process under the APA would be available to make an Order for the temporary detention of a person for a period as long as 10 days, the availability of that process would not preclude the Court from making a guardianship order. [ 24 ] Moreover, the Court of Appeal in AA , noted that the adult protection regime does not overlap exactly with the scope of a guardianship order: 18 The Adult Protection Act does not therefore cover the whole field with respect to representative decision-making for adults, any more than the Children and Youth Care and Protection Act covers the whole field with respect to control, protection, custody and care of children.

There is still room for custody orders in favour of individuals with respect to children and for general guardianship orders with respect to adults outside of any protective scheme based on state intervention. The mere existence and potential application of such schemes does not preclude the Court's jurisdiction in other circumstances.

The Advance Health Care Directives Act [ 25 ] In a case where the only decisions that need to be made are truly healthcare decisions, the substitute decision-making process under the Advance Health Care Directives Act would most certainly provide for decision making with less restrictive impact on C.R.’s rights than would the appointment of a guardian. [ 26 ] However, the evidence before me demonstrates that the decisions that must be made regarding C.R.’s life extend beyond healthcare matters even if the ultimate result of those decisions would affect C.R.’s health.

The appointment of a guardian is necessary to deal with the full scope of decisions that must be made. Has C.R. been given notice of and an opportunity to respond to this Application or is there reason to dispense with notice? [ 27 ] C.R. has been given notice of this Application and she appeared at the hearing by phone. [ 28 ] More importantly given the evidence as to C.R.’s cognitive capacity, she has been represented by counsel on this hearing. [ 29 ] Counsel for C.R. advised the Court that C.R. was agreeable to a guardian being appointed on her behalf.

If a guardianship order is necessary, then what is the least intrusive scope of order required? [ 30 ] The Application asks for an Order for guardianship on a temporary basis, either limited to a specified date or limited to the time before the Provincial Court makes a decision on the APA Application. [ 31 ] However, I am not convinced that the Court ought to make an Order with temporal scope. The Affidavit evidence filed in this matter has persuaded me that a guardian of C.R.’s person should be appointed.

A determination by the Provincial Court that C.R. is also an adult in need of protective intervention, and the intervention that would follow, would not necessarily supplant the need for a guardian. [ 32 ] Once the Provincial Court makes its determination, then the guardian may feel it appropriate to apply to this Court for a discharge.

At that time, the Court can determine whether the appointment of the director obviates the need for a guardian. [ 33 ] The intended guardian notes that she would prefer not to make healthcare decisions for C.R. and that currently healthcare decisions are made by C.R.’s healthcare professionals under the Advance Health Care Directives Act , s. 10 (j). I am satisfied to restrict the scope of guardianship accordingly.

If a guardianship order is necessary, then how many guardians should be appointed and who should they be? [ 34 ] The Applicant asks that Sandy Penney, Director of Mental Health and Addictions with LGH, be appointed as guardian. [ 35 ] The Mushuau Innu First Nation intends to work with Labrador-Grenfell Health to develop a service plan that will provide for C.R., with supports, and that includes steps to restore her connections with Innu culture and people. However, I enquired of Ms.

George whether anyone from the administration of the Mushuau Innu First Nation would be prepared to act as guardian for C.R., and she advised that the Mushuau Innu First Nation does not have the capacity to so act. [ 36 ] Therefore, although I would have preferred for someone from the Mushuau Innu First Nation to be appointed as co-guardian, as that is not possible I am satisfied to appoint Ms. Penney as sole guardian.

If a guardianship order is necessary, should the guardian be required to post security? [ 37 ] Given the involvement of the provincial government and the healthcare authorities in this matter, I do not find that security is required. Those institutions have the financial resources to answer for issues that arise during this guardianship.

CONCLUSION and DISPOSITION [ 38 ] The application for an order appointing a guardian of the person of C.R. is granted, and Sandy Penney is appointed as guardian. Healthcare decisions as defined in the Advance Health Care Directives Act , s. 2 (

b) are to be excluded from the scope of the guardianship order. _____________________________ Daniel M. Boone Justice