Why
does the Campbell government insist on picking on the most
vulnerable? Its record on child protection is shameful.
Its treatment of those who need income assistance is awful.
Now it is putting another notch on its club of bad deeds
by appealing a court decision which ruled that IQ levels
cannot be used as a matter of policy to deny access to services
for clients of Community
Living B.C. (CLBC).
More
is at stake in the appeal than the provision of services
to one 19 year old client. If the government wins its appeal,
government and its agencies will be able to deny access
to services on the basis of policies that have no legal
foundation. The court didn't say that IQ couldn't be used;
it said that in order to use it there has to be reference
to it in either a statute or regulation.
In Fahlman
v. Community Living B.C. & Others, 2006 BCSC 900,
after reviewing the facts involved in the case, Justice
Chamberlist ruled: "Therefore, in this case I find
that the CLBC has impermissibly structured its discretion
using its own rigid criteria of IQ below the 70 to
75 range in a manner which precluded it from considering
the merits of Neil's case." (emphasis added) The full
decision is a must read for anyone interested in public
policy and the limits of power.
According
to court documents, in June 2005 CLBC commissioned a psychological
report to determine Neil Fahlman's eligibility for adult
services once he turned 19 years of age. His IQ of 79 slightly
exceeded the level used to determine eligibility, but the
psychological report said: "Without the supports now
in place Neil would be extremely vulnerable to his own aggressiveness
and impulsivity. He could do significant harm to himself
and the community without support." Many who depend
on CLBC celebrated the ruling that Neil's eligibility for
services be reassessed and "that consideration only
be made on the basis of the criteria mandated by the statute
as it presently exists" (not on IQ which has no basis
in statute or regulation).
Child
and Youth Officer, Jane Morley had an article
published in the Vancouver Sun in which she called
on government not to reinstate the IQ requirement for continued
support beyond age 18, as it could do by adopting a cabinet
order (Order in Council).
In his
July 14th column, Vancouver Sun columnist Vaughn
Palmer reported that the Campbell government has launched
an appeal of Justice Chamberlist's decision. The BC
Association of Social Workers promptly issued an open
letter to Minister of Children and Family Development,
Stan Hagen, urging him "to provide leadership by turning
government's attention away from court challenges to the
enacting of legislation that creates a life-long continuum
of services for individuals with IQs higher than 70, but
diagnosed with FASD, or high functioning autism."
In recent
months, since its failed confrontation with BC's teachers
in late 2005, the Campbell government appears to have done
a 180 degree about face in how it handles conflict. It would
be a sad return to the worst days of the "New Era"
if the government continues with its appeal in the Fahlman
case. The BCASW has it right. Government needs to step back
from its appeal and get on with writing the legislation
that will permit people like Neil Fahlman to receive services
without having to become a client of the criminal justice
system. It also needs to recognize that government is not
beyond the law. Neither it nor its agencies can exercise
powers through policies that have no basis in law.
----------
Since
the BCASW Open Letter is not yet on its website, it is copied
below:
Sent:
Friday, July 14, 2006 11:06 AM
To: Undisclosed-Recipient:;
Subject: BC Assn of Social Workers re CLBC
BC Association
of Social Workers
For Immediate Release July 14, 2006
An
Open Letter to MCFD Minister Hagen regarding Community Living
BC
--------------------------------------------------------------------------------
Dear
Minister Hagen:
The
BC Association of Social Workers and its Child Welfare and
Family Committee are disappointed in the government’s
decision to appeal Judge Chamberlist’s ruling regarding
the provision of CLBC services to people with an IQ higher
than 70. We contend that that Judge Chamberlist has not
imposed social policy or program criteria from the bench
but has provided the government with a new opportunity to
offer support to persons with life-long disabilities such
as FASD and autism related disorders.
What
Judge Chamberlist has done is provide your government with
an opportunity to rethink its service criteria for children
and youth who will transition into adulthood with life-long
developmental disabilities. Judge Chamberlist’s ruling
did not deal with the larger questions of citizen rights
or the Constitution. What he did was examine the case of
Neil Fahlman and in that examination discover that the Community
Living BC enabling legislation is silent on the IQ criteria,
and that the criteria have not been set in place by legislation
or by written cabinet approved regulation. Neil Fahlman
and all those with similar life-long developmental disabilities
are presently being denied service because CLBC has instituted
a rule of its own making. CLBC continues to deny service
to this group of vulnerable persons based on unlegislated
internally created criteria.
The
BCASW and the professional social workers that it represents
have long advocated for policies such as the removal of
the 70 IQ criteria, which are based on rationing services
rather than providing services to clients who are truly
in need. Judge Chamberlist has done a service to government
in bringing the implications of this arbitrary policy to
light.
BCASW
recommends that the government
1. forego
any appeal of the Chamberlist ruling.
2. immediately
suspend the application of the IQ 70 criteria within CLBC
and move to create legislation or regulation that recognizes
the need for ongoing services to children and youth with
life–long developmental disabilities, after they reach
the age of 19 years.
3. engage
with other federal and provincial ministries such as Health
Canada and the provincial Health Ministry to set in place
a CLBC budget sufficient to provide services to this adult
population.
The
BCASW asks you to provide leadership by turning government’s
attention away from court challenges to the enacting of
legislation that creates a life-long continuum of services
for individuals with IQs higher than 70, but diagnosed with
FASD, or high functioning autism. The social work and criminal
justice literature indicates that if you choose this path
you will lessen this population’s risk of homelessness,
criminal activity, the possibility of causing harm to others
or the likelihood of being victimized themselves. We look
forward to your reply,
Linda
Korbin, MSW, RSW
Executive Director
402
- 1755 West Broadway
Vancouver BC V6J 4S5
T 604 730 9111/ F 604 730 9112
Toll free in BC 1 800 665 4747
www.bcasw.org
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