Fraser Health Authority v. A.K.H. et al. Date:, 2017 BCPC 355

Citation: Fraser Health Authority v. A.K.H. et al. Date: 20170922 2017 BCPC 355 File No: F40272 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA UNDER

PART 3 OF THE ADULT GUARDIANSHIP ACT AND IN THE MATTER OF A.K.H. REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R. HAMILTON Counsel for Fraser Health Authority and Community Living British Columbia : M. Perry Counsel for The Public Guardian and Trustee and

Timber Creek Tertiary Care Facility : S. Watson Counsel for A.H. : L. Johnston Place of Hearing: Surrey , B.C. Date of Hearing: September 19, 2017 Date of Judgment: September 22, 2017 INTRODUCTION [ 1 ] A.H. is a 37-year-old mother of two boys who has lived her life on the (omitted for privacy) First Nation.

A.H. suffers from a number of significant health conditions including Fetal Alcohol Spectrum Disorder; depression; schizophrenia paranoid type; posttraumatic stress disorder; polysubstance abuse; drug-induced psychosis; borderline intellectual abilities, her IQ is somewhere between 59 and 71; and borderline personality disorder. [ 2 ] She was reportedly physically, emotionally and sexually abused as a child. At age seven she was placed in foster care for three years and was sexually abused by a foster parent. She has reportedly attempted suicide on a number of occasions.

She has had a life filled with tragedy and victimization from a time before she was even born. She has lived her life being harmed by those around her because of her vulnerability. [ 3 ] In October 2016, authorities on the (omitted for privacy) First Nation reported to authorities within the Fraser Health Authority that A.H.'s mother, A.J. (“Ms. J.”), with whom A.H. was then living, was abusing her daughter. Specifically, the report was that Ms. J. was using her daughter to perform sexual acts with men in exchange for drugs to feed Ms. J.'s drug addiction.

The report went further to include that if A.H. resisted performing the sexual acts, her mother would force A.H. to consume drugs to ensure her compliance. A.H. was quite clearly being abused by her mother and nobody on the (omitted for privacy) First Nation was able to intervene to protect A.H. and stop this profoundly disturbing victimization of a vulnerable adult. [ 4 ] When the Fraser Health Authority learned of what was happening to A.H., they responded immediately and took A.H. out of her mother's home. A.H. was placed at the Delta Hospital, with her consent, for her safety.

That happened on October 6, 2016. This is now nearly twelve months after that protective intervention. [ 5 ] Since shortly after her placement at the Delta Hospital, A.H. has wanted to return home to live with her mother. That is obviously a bad idea and certainly unsafe for A.H., but the result has been that A.H. has been held in either the Delta Hospital, Surrey Memorial Hospital's secure psychiatric ward, or her present placement at the Timber Creek Tertiary Care Centre for nearly twelve months against her wishes.

She has been deprived of her basic fundamental liberty in order to ensure her ongoing safety by keeping her off the (omitted for privacy) First Nation and away from her mother. [ 6 ] The application before me is filed jointly by the Fraser Health Authority and Community Living B.C., and it is brought under the provisions of the Adult Guardianship Act (the "Act" ). In this application, the applicants seek a court order pursuant to s. 56 of the Act , for the provision of support and assistance to A.H. without her consent. [ 7 ] The applicants have filed two support and assistance plans for my consideration.

The first support and assistance plan was prepared by the Fraser Health Authority; the second was prepared by Community Living B.C. The first support and assistance plan would cover the period from now until September 30th and the second support and assistance plan would cover the period from September 30th forward. The applicants want the support and assistance plans to remain in effect for one year. [ 8 ] A.H. agrees with virtually every aspect of the proposed support and assistance plans but she strongly opposes the plan for where she must live over the next year.

The second support and assistance plan, if implemented by me, would require A.H. to live in a shared living home in Abbotsford. A.H. argues that forcing her to live that far away from the (omitted for privacy) First Nation, the only community she knows, is not the most effective and least restrictive and intrusive way of providing her with support and assistance. Accordingly, A.H. argues that I should dismiss the joint application, allow her to return to the (omitted for privacy) First Nation and move in to live with her partner.

She says she will voluntarily participate in all of the other services the Fraser Health Authority and Community Living B.C. have proposed in their support and assistance plans. [ 9 ] The parties filed a vast amount of paperwork on this application, along with comprehensive written submissions. I heard the application on Tuesday, and it lasted most of the day. Given that A.H. has been held against her will for nearly a year with no court oversight, as set out in the Act , I considered this decision to be a priority. It is now Friday morning.

I have only had the evenings since Tuesday to review these materials and prepare this decision. One of the six affidavits I have reviewed for this application is 1,500 pages long including all of the exhibits. I did not review all of the contents of the exhibits of that affidavit. The result is this rather hastily prepared decision after taking the time to review the evidence, the written arguments, and legislation that I am dealing with for the first time. Accordingly, if any party orders a transcript of this decision, I will edit that transcript but I will not change my decision.

BACKGROUND [ 10 ] I have already outlined some of A.H.'s relevant background in terms of her history of diagnoses, her cognitive and mental disabilities, as well as her victimization by those responsible for caring for her as well as strangers. [ 11 ] In April 2013, A.H. came to the attention of the Fraser Health Authority out of concerns following her hospitalization in January of that year for treatment of a medical condition, Miller-Fischer Syndrome.

The reports were that A.H.'s mother was withholding A.H.'s medication and there were concerns that she was being physically abused and was trying to escape from her mother's home. The Fraser

Health Authority took A.H. out of her home in much the same way as they did in October 2016. [ 12 ] Following her removal from her mother's home, A.H. was referred to Community Living B.C. for an assessment to determine if she qualified for the services offered by Community Living B.C. Unfortunately, Community Living B.C. did not have funding available to conduct A.H.'s eligibility assessment so that did not happen. [ 13 ] The Fraser Health Authority then prepared its first support and assistance plan which was dated May 6, 2014.

That plan contemplated A.H. returning to the (omitted for privacy) First Nation to live with her mother. Over the year that A.H. was under the care of the Fraser Health Authority (that is, between April, 2013 and May, 2014) she was placed at the Delta Hospital, the Peace Arch Hospital psychiatric unit and the Timber Creek Tertiary Care unit where she is now residing. Throughout her admission to those care facilities, A.H. consistently voiced her wish to return home to live with her mother. [ 14 ] Ultimately, A.H. returned to live with her mother on May 8, 2014.

A number of services were put in place to ensure A.H. was receiving her medication and regularly scheduled appointments were set up with community health workers: the (omitted for privacy) First Nation Health and Social Service workers. They were engaged to help monitor A.H. and support her living back with her mother. [ 15 ] Fresh reports of A.H. being physically and sexually abused at the hands of, or at the direction of, her mother came to the attention of the Fraser Health Authority on October 6, 2016.

I have summarized those reports above. [ 16 ] The initial report of the abuse amounting to sex for drugs at the direction of her mother was made to the (omitted for privacy) First Nation's social worker, K.T. on October 3, 2016. [ 17 ] On October 4, 2016, the registered nurse contracted to work for the (omitted for privacy) First Nation, W.B., took A.H. to see a doctor. She then returned A.H. to the (omitted for privacy) First Nation and took her to the (omitted for privacy) First Nation Health and Social Services trailer to talk to a counsellor.

After dropping A.H. off, apparently A.H.'s mother forced A.H. to have sexual intercourse with a stranger in her mother's presence. [ 18 ] As a result of this significant and seriously out-of-control victimization of A.H. at the hands of her mother, A.H. was taken out of her mother's home by the registered nurse working on the (omitted for privacy) First Nation and the social worker.

They did so by telling A.H. that they were taking her clothes shopping, which they did because she was badly in need of essential clothing, but after the shopping they told A.H. that they were taking her to the Delta Hospital for her safety.

They eventually persuaded A.H. to agree to the hospital admission because returning to live with her mother was too unsafe. [ 19 ] Following her admission to the Delta Hospital, A.H. was interviewed by hospital personnel, during which she confirmed the abuse she was suffering at the hands of her mother. [ 20 ] In her evidence before me on this application, A.H. denied any forced sexual activity at the direction of her mother in both her affidavit and in her testimony before me on September 19th. I reject her evidence denying the abuse at the hands of and at the direction of her mother.

It is clear to me that she is now denying what she told others in October 2016, because she is desperate to be released from the care and control of the Fraser Health Authority, and I believe she will say whatever she thinks she needs to say to be set free. [ 21 ] In his evidence, C.M., A.H.'s partner, confirmed that A.H.'s mother poses an ongoing threat to A.H.'s safety and that he cannot protect A.H. and keep her safe from her mother if A.H. is living back on the (omitted for privacy) First Nation. [ 22 ] In any event, during her confinement at the Delta Hospital, A.H. left the hospital three times and returned to the (omitted for privacy) First Nation and her mother's home.

On each occasion, the Delta police had to apprehend A.H. and return her to the hospital. Because it was clear that staff at the Delta Hospital could not safely care for A.H., she was moved to the Surrey Memorial Hospital secure psychiatric ward on or about October 18, 2016. She was confined at Surrey Memorial Hospital until June 13, 2017, when she was moved to the Timber Creek Tertiary Care facility which is located on the Surrey Memorial Hospital grounds. She remains at Timber Creek today. [ 23 ] On November 7, 2016, the Public Guardian and Trustee arranged for an assessment of incapability to be prepared by Dr.

Deborah O'Connor. Dr. O'Connor met with A.H. twice and delivered her completed assessment on November 16, 2016. Dr. O'Connor concluded that A.H. was incapable of turning down the second support and assistance plan that had been prepared by the Fraser Health Authority on October 23, 2016. When the Fraser Health Authority reviewed the second support and assistance plan with A.H., she expressed a desire not to return home, but to go and stay at Timber Creek where she had spent time between April, 2013 and May, 2014. In her report, Dr.

O'Connor further concluded that A.H. does not understand why services are being offered to her and that A.H. cannot link the provision of supports to concerns about her safety. [ 24 ] In addition to Dr. O'Connor's incapability assessment, the Fraser Health Authority contacted Community Living B.C. to request further assessments to review A.H.'s eligibility for services from Community Living B.C. Community Living B.C. agreed to complete an assessment on October 14, 2016, and A.H. was referred to the Asante Centre for an assessment as to whether she suffers from Fetal Alcohol Spectrum Disorder.

Between November 16, 2016 and April 19, 2017, A.H. was taken to appointments at the Asante Centre, and on April 19, 2017, the Asante Centre produced its report concluding that A.H. suffers from Fetal Alcohol Spectrum Disorder and as such, she qualified for funding through Community Living B.C. [ 25 ] On May 2, 2017, Community Living B.C. began looking for an appropriate residential resource that could take on the care of A.H. so that she was no longer hospitalized. [ 26 ] On August 22nd, Community Living B.C. secured a residential resource in Abbotsford, British Columbia.

In that home lives a mother and her one child. The proposal is that the mother will be contracted with Community Living B.C. to provide full-time supervision of A.H. 24 hours a day, seven days a week. The Abbotsford home will become available effective, I believe, September 30, 2017. The Fraser Health Authority has prepared an interim support and assistance plan to cover the period from today until September 30th, and Community Living B.C. has prepared a support and assistance plan to commence September 30th. Those two support and

assistance plans set out comprehensive care plans to provide services to A.H. over the course of the next year. [ 27 ] A.H.'s only stated objection to the Community Living B.C. support and assistance plan is that she does not want to live in Abbotsford, so far away from the (omitted for privacy) First Nation and her family and her partner, Mr. M. [ 28 ] On August the 23, 2017, authorities from the Fraser Health Authority and Community Living B.C. met with A.H. to review their support and assistance plans. A.H. clearly did not consent to the plan for her to live in Abbotsford.

ISSUES [ 29 ] I believe there are three issues that I must resolve on this application. [ 30 ] First, has the Fraser Health Authority and Community Living B.C. met their burden to fall within the provisions of the Act such that I am able to make orders pursuant to s. 56 of the Act ? [ 31 ] Second, if the Fraser Health Authority and Community Living B.C. have met their burden on this application, is the proposed support and assistance plan proposed the most effective but least restrictive and intrusive way of providing support and assistance to A.H.? [ 32 ] And third, A.H. raises an issue as to whether she is lawfully detained right now.

More specifically, she asks under what authority does the Fraser Health Authority or Community Living B.C. exercise their dominion over A.H. and keep her confined against her will? [ 33 ] I will address each issue in turn. Issue 1 [ 34 ] First, has the Fraser Health Authority and Community Living B.C. met their burden to fall within the provisions of the Act such that I am able to make orders pursuant to s. 56 of the Act ?

I think it will be helpful to start off by setting out the relevant statutory provisions of the Act that I must consider on this application. [ 35 ] The Act is legislation aimed at empowering designated agencies to care for, support, and assist adults who have been abused or neglected and who are incapable of making safe decisions for themselves.

Section 2 of the Act sets out the guiding principles which are: 2. This Act is to be administered and interpreted in accordance with the following principles: (

a) all adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they do not harm others and they are capable of making decisions about those matters; (

b) all adults should receive the most effective, but the least restrictive and intrusive, form of support, assistance or protection when they are unable to care for themselves or their financial affairs; (

c) the court should not be asked to appoint, and should not appoint, guardians unless alternatives, such as the provision of support and assistance, have been tried or carefully considered. [ 36 ]

Section 3 of the Act creates a rebuttal presumption that all adults are capable of making decisions about their personal care, their healthcare and their financial affairs. [ 37 ]

Part 3 of the Act contains the statutory provisions relevant to this application. I propose to summarize how

Part 3 of the Act operates. [ 38 ]

Part 3 is called "Support and Assistance for Abused and Neglected Adults".

Section 44 sets out the purpose of

Part 3, it says: 44. The purpose of this

Part is to provide for support and assistance for adults who are abused or neglected and who are unable to seek support and assistance because of (

a) physical restraint, (

b) a physical handicap that limits their ability to seek help, or (

c) an illness, disease, injury or other condition that affects their ability to make decisions about the abuse or neglect. [ 39 ]

Section 46 of the Act deals with reporting cases of abuse or neglect of an adult to a designated agency. Both the Fraser Health Authority and Community Living B.C. are designated agencies. [ 40 ]

Section 47 of the Act governs the determination by a designated agency if the adult who is the subject of the s. 46 report needs support and assistance. Of importance, s. 47(3) says: 47(3) If the designated agency determines that the adult needs support and assistance, the designated agency may do one or more of the following: (

d) Investigate to determine if the adult is abused or neglected and is unable for any of the reasons mentioned in

Section 44 to seek support and assistance. [ 41 ] Sections 48, 49 and 50 of the Act set out the designated agency's powers to investigate and their duty to report criminal offences.

[ 42 ]

Section 51 of the Act sets out what the designated agency can do after conducting the investigation provided for in s. 47(3)(d). The relevant subsection for my purposes is Section 51(1) paragraphs (

e) and (g). Paragraph (

e) says: After conducting an investigation described in section 47 (3) (d), the designated agency may do one or more of the following: (

e) apply to the court for an interim order requiring a person... ... and it sets out various other provisions; but basically that is a provision that allows the designated agency to apply for an interim restraining order, restraining other people (ie: the alleged abuser) from having contact with the adult in question. Those interim restraining orders can last up to 90 days. [ 43 ] Subparagraph (

g) says: After conducting an investigation described in section 47 (3) (d), the designated agency may... (

g) prepare a support and assistance plan that specifies any services needed by the adult, including health care, accommodation, social, legal or financial services. [ 44 ]

Section 52 of the Act obliges the designated agency to include the adult in decisions around seeking support and assistance and providing support and assistance to prevent abuse and neglect. [ 45 ]

Section 53 of the Act requires the designated agency to explain the support and assistance plan to the adult. Importantly, s. 53(4) provides: 53(4) If the adult decides not to accept the services proposed in the support and assistance plan, they must not be provided except under section 56 (3). [ 46 ] Section 53(5) says: 53(5) If the adult decides not to accept the services proposed in the support and assistance plan and the adult appears to be incapable of making that decision, the designated agency may ask the Public Guardian and Trustee to arrange for an assessment of whether the adult is incapable. [ 47 ]

Section 54 of the Act authorizes the designated agency to bring a court application for orders authorizing the provision of services to the adult if, as a result of the assessment under s. 53(5), the adult is determined to be incapable of deciding to accept the services in the support and assistance plan. [ 48 ]

Section 55 of the Act governs the hearing of the designated agency's application and s. 56 gives the court the authority to make orders after that hearing. [ 49 ] I am going to review some of the key provisions of s. 56 of the Act . [ 50 ] Section 56(1) says: 56(1) On hearing the application for the provision of services to the adult, the court must consider whether or not the adult (

a) is abused or neglected, (

b) is unable to seek support and assistance because of an illness, disease, injury or other condition that affects his or her ability to make decisions about the abuse or neglect, and (

c) needs and would benefit from the services proposed in the support and assistance plan. [ 51 ] Section 56(3) says: 56(3) If the court is satisfied about the matters set out in subsection (1), the court may (

a) make an order for the provision of support and assistance to the adult without his or her consent. [ 52 ] Subparagraph (

c) sets out the authority to make certain restraining orders restraining other people from having contact with the adult; and subparagraph (

e) says the court may: 56(3)(

e) make any other order the court thinks is appropriate and in the best interests of the adult. [ 53 ] Section 56(4) sets out the content of the orders that the court can make and Section 56(5) says: 56(5) In an order made under this section, the court must choose the most effective, but the least restrictive and intrusive, way of providing support and assistance. [ 54 ] Section 56(7) says: 56(7) An order made under subsection (3) (

a) terminates one year after it is made or on an earlier date specified by the court. [ 55 ] Once the support and assistance order is made, s. 57 of the Act requires the designated agency to review the need for the order if:

57(1)(

a) The designated agency has reason to believe that any of the adult's needs or the adult's ability to make decisions about support and assistance has changed significantly since the order was made, or (

h) The adult, or a spokesperson for the adult, requests a review and has a substantial reason for doing so . [ 56 ]

Section 57 also says that: 57(2) If the review under subsection (1) demonstrates that any of the adult's needs or the adult's ability to make decisions about support and assistance has changed significantly, the designated agency must apply to the court to have the order changed or cancelled. [ 57 ]

Section 59 of the Act is titled "Emergency Assistance".

Section 59 says: Emergency Assistance 59(1) A person from a designated agency may do anything referred to in subsection (2) without the adult's agreement if (

a) the adult is apparently abused or neglected, (

b) it is necessary, in the opinion of the person from the designated agency, to act without delay in order to (

i) preserve the adult's life, (ii) prevent serious physical or mental harm to the adult, or (iii) protect the adult's property from significant damage or loss, and (

c) the adult is apparently incapable of giving or refusing consent. [ 58 ] Section 59(2) says: 59(2) In the circumstances described in subsection (1), the designated agency may do one or more of the following: And it empowers the designated agency to go and apprehend the adult and subparagraph (

e) says: 59(2)(

e) Take any other emergency measure that is necessary to protect the adult from harm. [ 59 ] The application before me at this time is brought pursuant to s. 54 of the Act . It comes to court following the report to the Fraser Health Authority pursuant to

section 46 of the Act, that A.H. was the victim of abuse and neglect at the hands or direction of her mother with whom A.H. was living. The report was investigated. A.H. was taken to the Delta Hospital and interviewed and examined on October 6 and 7, 2016. Following that investigation, the Fraser Health Authority prepared a support and assistance plan pursuant to s. 51(1)(g).

The Fraser Health Authority did not apply for an interim restraining order against A.H.'s mother pursuant to s. 51(1)(e). [ 60 ] When the Fraser Health Authority took A.H. from home they were relying on s. 59, the emergency assistance provision. They took A.H. to the Delta Hospital pursuant to s. 59(2)(b). They had A.H. seen by doctors pursuant to s. 59(2)(

c) and they confined A.H. against her wishes to the Delta Hospital and the Surrey Memorial Hospital on the authority in s. 59(2)(e). [ 61 ] The Fraser Health Authority prepared the October 23rd, 2016 support and assistance plan pursuant to s. 53. They reviewed the support and assistance plan with A.H. pursuant to s. 53. A.H. did not accept the proposed services and wanted to go home, so the Fraser Health Authority and the Public Trustee and Guardian arranged for Dr. O'Connor's incapability assessment pursuant to s. 53(5).

As I have already indicated, that report was produced November 16, 2016. [ 62 ] The Fraser Health Authority and Community Living B.C. also arranged for the Asante Centre Fetal Alcohol Spectrum Disorder assessment which was finalized in April, 2017.

The Fraser Health Authority and Community Living B.C. filed their s. 54 court application in the Provincial Court on August 23, 2017. [ 63 ] The only authority that I am aware of that would authorize the Fraser Health Authority to continue to confine A.H. against her will between October 2016 and today is s. 59, the provision of emergency assistance and specifically, s. 59(2)(e).

It is not clear to me how confining A.H. against her wishes from October 2016 until September 2017 could be viewed as an emergency measure, but I am satisfied that her confinement was necessary to protect A.H. from harm as she repeatedly stated she wanted to return home which was, and is, a perilously dangerous place for A.H. [ 64 ] Significantly, in my view, are the comments from Dr. Hussain, a psychiatrist, who conducted a consultation of A.H. three months ago on June 14, 2017.

The psychiatrist says this, among other things, about A.H.: She still was trying to underestimate the risk that she has been posing for herself by not engaging in productive activities and trying to abscond from the hospital. She was still emphasizing the need to go back to her mother which definitely does not seem to be a good plan at this stage.

Her cognition appears to be reasonable, insight definitely very poor. [ 65 ] In light of those comments, I think that it is fair to say that after eight months in hospital and confined against her will, A.H. did not, and likely could not; appreciate the risk of harm her mother posed to her safety. [ 66 ] In any event, the Fraser Health Authority and Community Living B.C. filed their s. 54 application on August 23, 2017.

I conducted the s. 55 hearing on September 19th and my determination of this application is governed by s. 56 of the Act . [ 67 ] To succeed on this application, the Fraser Health Authority and Community Living B.C. must establish that (

a) A.H. is abused

or neglected; (

b) that A.H. is unable to seek support and assistance because of an illness, disease, injury or other condition that affects her ability to make decisions about the abuse or neglect; and (

c) that A.H. needs and would benefit from the services proposed in the support and assistance plan. [ 68 ] There is no doubt in my mind that on the evidence before me the Fraser Health Authority and Community Living B.C. have met those three preconditions to granting the orders set out in s. 56(3) of the Act . However, A.H. argues that the Fraser Health Authority and Community Living B.C. have failed to comply with s. 53(5) and s. 54(1) because Dr. O'Connor's incapability assessment relates to the October 23, 2016 support and assistance plan.

A.H. argues, and rightly so, that there is no incapability assessment with respect to the Fraser Health Authority and Community Living B.C.'s support and assistance plans, dated August 23, 2017. The applicants argue that Dr. O'Connor's opinion of incapability is based upon permanent, immutable conditions or deficits A.H. has that made her incapable in November 2016 and still render her incapable nine months later. [ 69 ] In my view, Dr.

O'Connor's conclusions or findings of her assessment bear repeating: Based on these criteria it is my opinion that A.H. is incapable of turning down the support and assistance plan, specifically, at some level and with considerable effort she is able to understand the content of the support and assistance plan although her understanding is fluid and requires repetition. However, even with considerable explanation and discussion she does not understand why services are being offered. Even at the simplest level she cannot link the provision of support to concerns about her safety.

More specifically, she does not know why others might say she is at risk, let alone be concerned about her and her safety. At no point did she demonstrate any understanding of potential consequences in turning down the support and assistance plan. [ 70 ] I have already mentioned the psychiatrist's opinion from June 14th of 2017 which echoes much of the findings of Dr. O'Connor. [ 71 ] In my view, given the expert evidence before me on this application, A.H.'s incapability is static and unchanged from Dr.

O'Connor's November 16, 2016 incapability assessment to the present date. [ 72 ] Accordingly, I find that despite the passage of time, despite A.H.'s abstinence from the consumption of drugs and alcohol, and despite the significant stability she has achieved since November, 2016, she remains incapable of deciding not to accept the services proposed in the August 23, 2017 support and assistance plan and accordingly, I find the Fraser Health Authority and Community Living B.C. have met their burden on this application.

Issue 2 [ 73 ] If the Fraser Health Authority and Community Living B.C. have met their burden on this application, is the support and assistance plan proposed the most effective but least restrictive and intrusive way of providing support and assistance to A.H.? [ 74 ] Section 56(5) of the Act says that on an application such as the one before me: 56(5) In an order made under this section, the court must choose the most effective but least restrictive and intrusive way of providing support and assistance. [ 75 ] The support and assistance plan proposed by Community Living B.C. to take effect September 30, 2017 is, in all respects, effective and minimally restrictive and intrusive, save and except the proposal that A.H. will reside in a Community Living B.C. home share in Abbotsford.

The balance of the plan provides for Community Inclusion Support Services, access to A.H.'s family, friends and community by way of telephone contact and visits with her sons, partner and family at the share home and on accompanied visits outside of the home. The Community Living B.C. support and assistance plan provides for counselling, as well as social and recreational activities.

It provides for supervised visits with her mother and it provides for psychiatric and medical care. [ 76 ] The concern I have is that the proposal to have A.H. live in Abbotsford is neither effective nor is it the least restrictive and intrusive way of providing support and assistance.

Community Living B.C. specifically chose the share home in Abbotsford in order to place a significant geographical distance between A.H. and the (omitted for privacy) First Nation in order to place a significant barrier in the way of A.H. leaving the share home and returning to the (omitted for privacy) First Nation where she most certainly will be harmed. [ 77 ] It is my view that while I understand the motive behind such a placement, having A.H. live in Abbotsford will expose her to an unacceptable risk of harm.

When A.H. was placed at the Delta Hospital she escaped three times and was found back on the (omitted for privacy) First Nation with her mother. She was returned to the hospital on each occasion by the police. I find that A.H.'s desire to return to the (omitted for privacy) First Nation is so pressing and so all-consuming that if placed in the share home in Abbotsford she will leave and try to return to the (omitted for privacy) First Nation. The staff at the Delta Hospital were unable to prevent A.H. from leaving the hospital even after she left the first time and they were aware of her intention to leave.

Placing A.H. in the share home in Abbotsford under the supervision of a single mother with a child will be insufficient to ensure A.H.'s safety. She will leave that home. The share home supervisor, with her attention divided between A.H. and her child, will not be able to prevent A.H.'s departure. [ 78 ] How A.H. will travel back to the (omitted for privacy) First Nation is unclear but I can conceive of her hitchhiking. With A.H.'s cognitive and behavioural challenges she will be an easy victim of any stranger who chooses to take advantage of A.H. when she is away from the share home.

Also, once she leaves the Abbotsford share home the authorities with Community Living B.C. will not know where she is. [ 79 ] In addition to being ineffective, the proposed placement in Abbotsford is too restrictive and intrusive. The proposed support and assistance plan will require A.H.'s cooperation to be effective. A.H.'s plan is to fulfil her desire to return to the (omitted for privacy) First Nation to live with her partner, who lives a mere 100 metres from her mother's home.

That plan is so fraught with danger I could never endorse such a plan. [ 80 ] A.H. has said she would cooperate with a placement for her to live in Delta or Richmond so that she would be closer to her family and her partner. A placement in a home community closer to the (omitted for privacy) First Nation would, in my view, be the

most effective and least restrictive and intrusive way of providing support and assistance to A.H. Further, with respect to A.H.'s plan, as I have said, if her plan to return to live on the (omitted for privacy) First Nation with her partner was in place, A.H.'s further victimization is a near certainty. The risk that she falls back into abusing drugs and alcohol looms large. [ 81 ] Her partner, Mr.

M., conceded in his evidence that he could not keep A.H. safe from her mother. [ 82 ] W.B. and K.T. both working on the (omitted for privacy) First Nation say they do not have sufficient resources to keep A.H. safe if she is living on the (omitted for privacy) First Nation. [ 83 ] It is my conclusion that A.H. needs to reside off the (omitted for privacy) First Nation, in a home and in a community with greater proximity to the (omitted for privacy) First Nation than Abbotsford.

Having her reside in a home in Delta or Richmond will create distance between A.H.'s residence and the (omitted for privacy) First Nation.

It will also facilitate A.H.'s cooperation and compliance with the support and assistance plan. [ 84 ] Accordingly, pursuant to s. 56(3)(a), I order that the Fraser Health Authority provide the support and assistance to A.H. as set out in its support and assistance plan, dated August 23rd, to cover the period from today up to September 30th. [ 85 ] Effective September 30th, I order that Community Living B.C. provide the support and assistance to A.H. as set out in the support and assistance plan dated August 23, 2017, except for the plan for A.H. to reside in the share home in Abbotsford. [ 86 ] Pursuant to s. 56(3)(e), I order that Community Living B.C., within the next 60 days, secure an alternate residential placement for A.H. in Richmond, Delta or Surrey and return before me to present the revised support and assistance plan for my review.

In the meantime, A.H. will continue to reside at the Timber Creek Tertiary Care facility. I will assist the parties in securing a date to appear back before me within the next 60 days. [ 87 ] Lastly, I order pursuant to s. 56(3)(

c) that A.J. is not to visit, communicate with, harass, or interfere with A.H. except A.J. may have such supervised contact with A.H. as is approved by Community Living B.C. [ 88 ] I further order pursuant to s. 56(3)(

c) that A.J. is not to be found within 200 metres of A.H.'s residence. [ 89 ] Earlier in these reasons I listed the three issues for my determination and the third issue is the following: Under what authority does the Fraser Health Authority or Community Living B.C. exercise its dominion over A.H.?

I have already addressed this issue but, for clarity, the only legislative provision I can find that gives the Fraser Health Authority or Community Living B.C. authority over A.H. up to today is s. 59, the emergency assistance provision. [ 90 ] I do not believe A.H.'s situation could be fairly considered an emergency at this stage; some eleven months after the real emergency presented itself.

Having said that, with A.H.'s continued and somewhat unrelenting wish to return to the (omitted for privacy) First Nation, I find that the Fraser Health Authority's continued authority over A.H. since October 6th was necessary in order to keep A.H. safe from further abuse and neglect. As of today, the Fraser Health Authority and Community Living B.C.'s authority over A.H. flows from the orders I have made. (REASONS FOR JUDGMENT CONCLUDED)