J.J. & Re

J.J. & Re Court Supreme Court Date 2002-04-03 Citation 2002 NSSF 19 Docket 99-0051, SFHA10346 Judge/Registrar/Adjudicator Legere-Sers, Moira C. (Honourable Justice) (NSSF) Document Type Decision Decision Content 1999 File No. 99-0051 SFHA10346 IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) IN THE MATTER OF: The Adult Protection Act, R.S.N.S. 1989, c. 2 - and - IN THE MATTER OF: The Minister of Health (formerly Community Services) - and - IN THE MATTER OF: J.J. (also known as J.B.) [Cite as Minister of Health v. J.J., 2002 NSSF19] D E C I S I O N HEARD: BY THE HONOURABLE JUSTICE MOIRA C. LEGERE AT HALIFAX, NOVA SCOTIA ON DECEMBER 12 & 13, 2001; JANUARY 18 & 29 AND FEBRUARY 4, 2002 DECISION: April 3, 2002 COUNSEL: ROBERTA CLARKE - FOR THE MINISTER OF HEALTH CLAIRE MCNEIL - FOR J.J. LEGERE, J. This is an application by the Minister of Health to renew the Adult Protection Order dated March 23, 1999 continued by subsequent orders. This application concerns the request of the Minister to vary the order and remove any restriction contained in that order relating to placement of the adult. There is an admission that Ms. J. continues to be an Adult in Need of Protection. Legal History Two previous written decisions dated March 23, 1999 and March 13, 2001 set an historical, legal and factual foundation for the current hearing. I incorporate them as necessary without repetition. By Order of March 31, 1999 Ms. J. was found to be an adult in need of protection pursuant to Section 3(b)(ii) of the Adult Protection Act, R.S.N.S. 1989, c.2. She was found not competent to decide whether or not to accept the assistance of the Minister of Community Services. At that time Ms. J. could not live peaceably on her own or with people. A group home placement was not appropriate. Initially Ms. J. did not agree that she was an adult in need of protection. Upon hearing evidence respecting this and upon a finding being made the parties agreed to a specific placement proposal. Pursuant to Section 9(3)(c) of the Adult Protection Act, the March 31,1999 Consent Order authorizes the Minister to provide Ms. J. with services including placement in a facility approved by the Minister that would “enhance her ability to care and fend adequately for herself “; specifically supervision in her own apartment as may be required or as determined by the Minister in consultation with the Supportive Community Outreach Team (SCOT) of the Nova Scotia Hospital, and including admissions of short duration at the Nova Scotia Hospital as directed by the SCOT Team or an Adult Protection worker from time to time. This order was renewed by Orders dated October 4, 1999 and November 30, 1999 and then renewed and varied by Orders dated March 20, 2000 and renewed again on October 30, 2000. This has ultimately limited the Department’s placement options. This placement has never taken place and Ms. J. has remained in institutionalized care since her original hospitalization. The written Decision dated March 13, 2001 dealt with the first aspect of the application by the Minister of Health to remove the specific placement clause to allow the Minister to place Ms. J. in a facility approved by them without restriction. The parties made submissions respecting the jurisdiction of the court in matters of placement of adults under the Adult Protection Act. Current legislation of similar nature and purpose in Canada was considered along with the best interests’ test, Charter values, parens patriae jurisdiction and the Court’s duty to assess the evidence having regard to the principles of fundamental justice. In that aspect of the application the Minister adopted the position that the Court had no jurisdiction to direct the Minister respecting the actual placement of an adult. In that decision I concluded: There was a gap in the legislative design between the authorization of significant intervention in an adult’s life and the full removal of the person’s right to choose for themselves where and with whom they live. In order to fulfill a “meaningful legitimate legislative and jurisdictional purpose” the court must have regard to the principles of fundamental justice. When considering the various plans of placement and services offered the court has a duty to require evidence of the plan of care to assist the court to weigh the plans and ultimately endorse the one that best reflects and meets the best interest test. In this situation there is significant conflict by the involved parties as to which plan addresses the best interests of the adult. The court does have a duty to ensure, in contested situations, that the plan of the Minister does indeed enhance the person’s ability to be cared for and to fend for themselves; that the plan put forward is in the best interests of the Adult. There is a burden on the Minister to prove that the requested change in the original court order is consistent with the best interests of the adult. While the court may not necessarily have authority to order a particular placement, a court could prevent the placement of an adult in certain circumstances where their best interests were not served and the placement could not be said to enhance their life’s circumstances. There may be reasonable limits on the implementation of the Minister’s plan. Inter-departmental boundaries In the course of the proceedings the responsibility for Adult Protection matters was moved from the Department of Community Services to the Department of Health. I have heard evidence concerning the division of responsibilities as it relates to effecting the spirit and intent of the Adult Protection Act. What is clear to me is that the Department of Health must be responsible for and maintain Ms. J. while she remains in hospital. If she is placed in the community or in RRC residential care these costs come out of the Department of Community Services’ budget. Insofar as there is an internal dispute between the Department of Health and the Department of Community Services this Court will not concern itself with the policies and procedures, the distinctions and division of responsibilities between government departments. My focus will be to make a determination under the Adult Protection Act with respect to the needs and abilities of Ms. J. and to the responsibilities of the appropriate government department as it relates to placing and caring for Ms. J. The Exercise of Ministerial Discretion The Charter has not been expressly argued before me. In my decision dated March 13, 2001, I recognized the obligation of the court to apply the law in accordance with Charter principles. This is consistent with principles enunciated in R. v. Oakes [1986] 1 S.C.R. 103; [1986] S.C.J. No. 7. The Supreme Court of Canada determined that guaranteed rights must be infringed as little as possible when the law must infringe on them. Likewise in Winko v. British Columbia (Forensic Psychiatric Institute) [1999] 2 S.C.R. 625; [1999] S.C.J. No. 31 the Court noted that a statute should be read in a manner that supports compliance with the Charter. I am mindful of the limits to a Court review of the exercise of Ministerial discretion (Suresh v. Canada (Minister of Citizenship and Immigration) [2002] S.C.J. No. 3; 2002 SCC 1. The same decisions that endorse the deference to be paid to the exercise of Ministerial discretion confirm that this discretion is not unfettered (Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services) [2001] S.C.J. No. 43; 2001 SCC 41. The Court has a duty to ensure that the Minister considers all relevant factors and complies with the Act and Legislation. The discretionary Ministerial decision may only be set aside: “... if it is patently unreasonable - unreasonable on its face, unsupported by the evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures... ” (Suresh v. Canada (Minister of Citizenship and Immigration). There is ample authority to begin a review of the plans of care. Proposed Plans The second part of the hearing consists of a weighing of the plans of care proposed by the Minister of Health, the Hospital and Ms. J. to determine which plan better reflects the best interests of the Adult in accordance with the legislation. There are three basic plans: - The position of the Department of Health is at one end of the spectrum (ie. institutionalized care). - Ms. J. has consistently wanted her independence living in the community. - The SCOT Team and her medical caregivers have fairly consistently recommended the current plan, a small options home in this community as best suited to Ms. J. Historical Placement Ms. J. lived in a small options home prior to her admission to the Nova Scotia Hospital in December 1998. Between May 1994 and October 1995 she was discharged because she was unable to live with co-residents and staff. In October 1995 she was moved to a supervised apartment with minimal supervision until December 11, 1998 when she was admitted to the Nova Scotia Hospital because of a bomb threat she called in to the to the IWK Children’s Hospital. In 1995 in the private apartment setting she existed with minimal supports from Community Services, certainly not at a level acknowledged by her caretakers as necessary, given their current diagnosis. She was living largely in an unstructured environment with a lack of predictability. Her medication, such as it was, was not administered by health care professionals in the manner it is now. Thus, she was not medicated on a consistent basis. She was not constructively occupied in a vocational setting. Ms. J. could not deal with this lack of structure. A significant difficulty with placement in a supervised apartment was Ms. J.’s inability to access and be admitted to the hospital immediately. Clearly, independent apartment living was unsuccessful. The evidence I currently have is that independent apartment living continues to be unsuitable and the likelihood of change in the near future is minimal. Medical Evidence I have heard extensive evidence from two of her health care providers, Dr. Diane Eastwood and Dr. Riives. Dr. Eastwood is a staff psychiatrist familiar with the diagnosis and treatment of Ms. J. at the Nova Scotia Hospital. Her report of December 6, 2001 gives a history of her involvement. This witness was best able to underline the differences between the assessment in the years 1999 and 2001. Dr. Riives is a general practitioner in psychiatry, working under Dr. Eastwood and with the Nova Scotia Hospital since 1988. She has extensive experience with community placements. Dr. Riives gave opinion evidence in psychiatry and community integration of persons with dual-diagnosis. Ms. J. had developmental difficulties early in her life. Her social interaction and use of language, limited repertoire of behaviours, limited interests in activities and mildly retarded-level of intellectual functioning all fit within what has now been diagnosed as a pervasive developmental disorder. It has been classified as severe and life long. Ms. J. has periods where she is psychotic, when her mood has not been normal. During one such period she felt that her skin was melting away. She experienced severe distress. Her physical and mental health were in a state of flux. She presented a risk to herself and others. She briefly entered the criminal justice setting as a result of her behavior and would have been at risk of further involvement but for significant intervention from health care and social services. The evidence regarding Ms. J.’s diagnosis on admission to the hospital differs from the evidence before me today. Dr. Eastwood’s report dated December 6, 2001 is a synopsis of the history of behavioral and medical diagnosis respecting Ms. J. throughout her life culminating in her most recent discharge diagnosis of pervasive development disorder, brief psychotic disorder and mild mental retardation. When renewing the Protection Order the Adult Protection worker obtained a Medical Observation Form completed by Dr. Riives, the attending physician on staff, at the Corel Hall Unit. Ms. J. was assessed as having mild mental retardation and pervasive developmental disorder (mild autism). She has poor impulse control. The assessment referred to her verbal and physically abusive behavior towards neighbours while in an unsupervised setting. Dr. Riives concluded that Ms. J. was mentally incompetent and incapable of consenting to her own treatment. Ms. J. continues to deny she has an illness or needs medication. She has no insight into her own limitations. This historical information formed the basis of the first Adult Protection proceeding, leading to the first Adult Protection Order. Dr. Riives recommended Ms. J. be placed in a small options-type community residence with one or two other residents and 24-hour staffing for support and supervision. Similarity and as early as January 1999, Dr. Diaz indicated there was no need for Ms. J. to remain in hospital. He recommended a small options community placement. No progress had been made towards successfully integrating Ms. J. into independent living. Dr. Eastwood first met Ms. J. at the end of 1994 when she was admitted to the Nova Scotia Hospital from her independent community placement. She described her early recollections of Ms. J.’s chaotic day to day life. Dr. Eastwood indicates that she was not sure anyone had a good understanding of Ms. J. She knew of no one who thought at the time and through to 1998, that Ms. J. had a serious but treatable psychiatric disorder. Most of her caregivers did not believe there was anything that could be done to help Ms. J. at the hospital or to improve her behaviour with medical help other than crisis intervention either as a direct result of suicide attempts, overdoses or difficulties with her husband. While an underlying psychiatric diagnosis may have been considered there was no effective treatment plan in place. Her difficulty was determined to be behavioral. She now has a dual diagnosis. The focus of intervention between 1991 and 1993 related to behaviour modification. In a highly structured environment Ms. J. did well. On discharge and on her own she deteriorated. In early 1998, as a result of a previous overdose in medication, Ms. J. was taken off all medication. Psychotic symptoms emerged. The health care providers had a lengthier opportunity to observe and assess Ms. J. in hospital in 1999. There was a perception that there were features relating to Ms. J.’s behaviour that were clearly psychotic. They saw the psychosis and elements of a mood disorder for which she was previously untreated. The psychotic features were difficult to perceive and identify. Dr. Riives testified it was not uncommon to misdiagnosis a person with a mental handicap because their symptoms are not as easily determined as a person of normal intelligence. One had to look over a great many years to obtain a more accurate diagnosis. Dr. Riives noted that the crisis admissions appeared in mid-December and in late Spring; a consistent pattern for cyclical mood disorders. When seen in crisis she had pressured speech, ideas flowing, angry, unable to sit down, unable to stop questioning - all characteristics of a manic person. They have now determined there are two treatable components to her presentation. Ms. J. will always have the pervasive developmental disorder and mild mental handicap. Her environment and life supports will help accommodate these difficulties. The treatable aspect is the aspect of psychosis and of cyclical mood disorder. Historically, there had not been adequate trials of anti-depressant medications that would have affected or improved Ms. J.’s behaviour. Now, both of these have had a significant trial on medication and both have proven to be effective. Ms. J. was prescribed Respiradone which eliminated the psychotic features within a few days. The medication was slowly introduced and dosages increased to a therapeutic level over a long period of time. It took two to three months to get it to a therapeutic level and a couple of months after that to determine that it was the appropriate level and having the desired effect. She has continued on the mood stabilizing drug, Carbanazapiene, and the anti-psychotic medication from 1999 to the current date with some adjustments. When treated, Ms. J. was thought to be considerably improved. Dr. Eastwood admits that as clinicians they lacked a clear understanding of Ms. J.’s difficulties in 1999 until she was referred for neuropsychiatry testing. This was a significant turning point in her treatment plan. This confirmed the developmental delay that began early on in her life; confirmed that Ms. J. is in the mildly mentally retarded range in terms of intellectual functioning and has particular trouble with reciprocal social relationships, language and with new learning. Ms. J. has never had a mature level of functioning and functions better when she learns through mentoring and imitation, buddying and copying. These things happen in the structured environment in which she currently resides. This critical report spelled out clearly what Ms. J. would need in terms of day to day structure, what sort of approach would work and not work and what kinds of expectations were reasonable. Dr. Eastwood admits that the highly structured program was never available or set up for Ms. J. in the community previous to her early admission to hospital in 1999. Ms. J. could not cognitively manage the problems that came up in day to day life because of the lack of programming and structure in the community. In retrospect Dr. Eastwood concluded that Ms. J. could not understand a lot of what was going on because of her limited cognitive functioning. Effort is made now to ensure, through communication, that she understands what is being said. Behavioral Changes Dr. Riives and Dr. Eastwood indicate that over the last eighteen months Ms. J.’s situation has improved and she is doing very well at this moment. Dr. Eastwood testified that while there have been verbal outbursts there have been no significant incidents of physical or verbally aggressive behaviour. This is attributed partly to the highly structured setting over a long period of time and partly because Ms. J. was more properly diagnosed and treated. She is currently living in a highly structured environment with 17 - 18 patients. There have been no serious conflicts with other patients or staff. They believe she can live with others although she does need her own room. Dr. Riives referenced a period of time when Ms. J. lived in the community, largely unsupervised. She would call emergency services excessively (286 times in 2 months). At one point in time MT&T took away her telephone. Dr. Riives noted the changes. Since July 24, 2000 Ms. J. has not made a single harassing phone call; she has not had a single visit to the time-out room. She has had one loss of off-unit privileges for leaving a cigarette butt in her sink. Other than that there are no other incidents or no loss of privileges, nor has there been physical aggression. When she worked on Unit before DASC she was required to be at work on time, comply with the rules, not smoke in her room, come and go by her passes and refrain from being verbally or physically aggressive. Ms. J. was accepted at DASC, the community work placement. Her medications continue to be administered by the hospital. She sees her parents every Sunday and has on-going contact with her husband. She goes to community activities socially with a person, either to the waterfront, the library, sightseeing, various community activities, and always with a group of 2, 3, 4 or 5. In Dr. Theriault’s risk assessment (November 2000) he saw no recent evidence of physical regression for about a year. Ms. J. appears to be, at least for two years, free of any evidence of physical aggression. Dr. Eastwood recalls the concerns at Maritime Hall about Ms. J.’s use of the phone and inappropriate demands of staff. Since she has known her this behavior has ceased. Ms. J. has not left the hospital without appropriate privilege or stayed away longer than her passes permit. Dr. Eastwood confirms that over the last six months Ms. J. has demonstrated that she can follow a treatment plan, resulting in more freedom and less supervision and she continues to do well. Dr. Eastwood considers her treatment program successful in terms of controlling the symptoms. As time progresses Ms. J. has been extended more freedoms and more independent time in the community without staff supervision. She has handled that appropriately. She currently has overnight and weekend passes with her husband without supervision. Plan Specifics The plan for community integration has been described in detail. There are certain mandatory criteria including but not limited to the following: Taking and supervised administration of her medication is mandatory. Her medication must be monitored by a general physician. This condition is contained in both the plan submitted in February 1999 and the September review. Currently the medication is given through nursing staff. Mr. Boyd underscored the difficulty with Ms. J.’s lack of insight respecting medication. She indicates now she will be compliant with medication yet she has no insight into her need for these medications. This is a prevailing theme and legitimate concern. - Ms. J. needs to adhere to a structured plan, attending to all of the details of her care. She must be supported by the right kinds of people in the right kinds of ways. - Ms. J.’s interests are limited and attention has to be paid to designing suitable activities for her. - She needs a “clearly defined behaviour management program” to keep her interested and occupied. - The plan designed by the hospital team requires that she be placed in the community with appropriate programming and something meaningful to do daily such as the work activity program in which she is currently involved. Mr. Boyd of the Department of Community Services confirmed the importance of the support offered through the Nova Scotia Hospital and acknowledged that reintegration into the community depends largely on the availability of supports including Ms. J.’s husband and parents. The hospitalized day to day structure, meaningful activities and people assisting her has been of immense assistance to Ms. J. Her placement in the community and her state of being must be constantly monitored. Her caretakers must know who Ms. J. lives with, where she lives and what she is doing during the day time. They must know if problems arise when she is in the community or when she is with her husband or family. People with her need to be involved in the programs. There is a team at the hospital who work with patients like Ms. J. She fits within a dual-diagnosis group of mentally handicapped and psychiatric disorder. Predictions regarding her behavior within certainty are difficult and it does not take very many things to get her off track and when she is off track it is difficult to get back on track. Immediate intervention when issues arise is the recommended course of action. It is recommended that she be readmitted directly into Corel Hall if she were destabilizing. Ms. J. must have easy access to the dual diagnosis team. Having the hospital to fall back on immediately in crisis is an important factor. Dr. Riives described similar situations where residents have easy access to the dual diagnosis hospital team. If there are sudden behavioural disturbances in the community the patient can come directly to the dual-diagnosis unit for 24 hours at a time as part of their behavioural program. When there are emerging psychiatric illnesses, it enables the staff to do a re-assessment. This makes her case management and its location critical factors. The final obstacle for Ms. J. was her chronic behavior, resulting in being labeled in the system as someone who was a behavioural problem and simply needed to change her behaviour in order to be less of a nuisance. Dr. Eastwood acknowledged it is difficult to predict her future. She has considered the risk factors and continues to recommend a community placement. Neither Dr. Riives and Dr. Eastwood believe that there is an ongoing concern or risk that cannot be managed in the community with proper monitoring. Transition into the Community Dr. Eastwood indicated it is not unusual for the hospital to be involved in a transition from the hospital to the community for a year. Critical to her care she could be re-instated in hospital without need to move through the regular entry assessments. She noted that people in Maritime Hall and Corel Hall are in the habit of working out these kinds of plans with the community. She acknowledged that the plan is not necessarily easily implemented and maintained but that Ms. J.’s general level of functioning, thinking and behaviour has, in recent months, been stable. The original plan recommended placement by herself; the care providers have amended that based on their intervening experience and observations. Dr. Riives is responsible with the Team for recommending a community-based option home with her own bedroom, possibly with three other residents. She believes that Ms. J. has demonstrated she can live rather well with 17 people. There are conditions she has referred to as necessary. They include: Selection of her co-residents is very important. She recommends 24-hour staffing of the home. Ms. J. requires 24 -hour supervision. This means at least one staff person is present while the residents are present. It is anticipated that Ms. J. will be in a supportive work placement between 9:00 a.m. - 3:00 p.m. While she will be out of the home a staff person need not be there. It is understood that most organizations have a contingency plan that would cover in the event that the resident became sick. Dr. Riives has been familiar with Ms. J. since 1991. On July 24 Ms. J. was transferred from Maritime Hall to Corel Hall where Dr. Riives has her principle place of work. Since July 24, 2001 she has had direct responsibility for the care of Ms. J. Dr. Riives advises that a review of her diagnosis indicates a great variation in diagnosis from mild mental retardation to border-line intellectual functioning which would actually put her at the lower range of normal. This would create unrealistic expectations in care and service providers. She notes that at various times Ms. J.’s behaviour was described as a behavioural disorder, or opposition defiant disorder or, again, intermittent explosive disorder or borderline personality traits - all of which are untreatable with medications. Dr. Riives believes there are others with whom she is acquainted who have similar complex management problems and are very successfully managed in the community. The doctor went on to say that the success of their management depends on the program that is provided for them. The history of placement discussions There are a number of assessments that recommend community placements including the N.S. Hospital Assessment, 1999; Dr. Theriault’s November 2000 report which recommended trying the Nova Scotia Hospital’s Plan; Dr. D. Eastwood’s report dated December 6, 2001 and Dr. Riives’ report dated December 11, 2001. The Department of Community Services Assessment Report dated December 2000 recommended RRC institutional care. There is also the May 1, 2001 report of the HCRRC which indicated Ms. J was not suitable for placement in their facility due to her needs, their closure and lack of resources. In 1999 the Nova Scotia Hospital determined it was time for Ms. J. to be released from hospital. On the anticipated discharge in a meeting on April 17, 1999 the parties agreed to placement in her own home under 24 hour supervision. They were prepared to abide by a standing order to take her into hospital if and when her behavior deteriorated. The particulars of that agreement are contained at Page 12 of the Decision. The original plan was developed with Mr. Benstead of the Department of Community Services and members of the hospital team including the SCOT Team and Ms. J.’s health care providers who are most intimately familiar with her needs and abilities. They have consistently supported a community based option. Mr. Boyd, the Adult Protection Worker for Ms. J., from 1999 when she first came into care up until the end of November of 2001, confirmed that they decided that Ms. J. could be discharged to the community in a supervised apartment-type setting with 24-hour supervision. In the beginning they had discussions with Community Supports for Adults, Department of Community Services. It was their view that they would be able to provide that level of care. Thus, the plan of care as incorporated into the original consent order was structured with specificity as it relates to placement. The plan included placement in a small options home with her own bedroom and in a residence that allowed her privacy for conjugal visits with her husband. They recommended hiring female staff able to teach vocational and leisure skills and to supervise her one to one bathing and assistance with laundry, maintaining the home, grocery shopping, meal planning and preparation, assistance scheduling leisure activities, crisis admissions to Coral Hall available to her, psychiatric symptom monitoring, behavior monitoring and supportive therapy. Her medication needs to be administered by a staff person. She requires assistance managing her finances and access to cigarettes. She required supervision of her phone privileges and supervision to accompany her in the community when not in a structured environment or with a responsible adult. At the time she has been referred to DASC. The SCOT Team was to provide psychiatric follow-up on a 24 hour basis. If not adequately supervised the client could find herself in the criminal justice system and the current erratic and threatening behavior to others and to herself was noted. The proposal submitted to meet the plan specifications for the 24-hour supervision included the option to reduce to 16 hour supervision should she be accepted in a vocational day program. This plan continues today with modifications that account for the change in her circumstances and condition. Classification Mr. Benstead (DCS) reviewed the levels of care that he would be looking at in making a classification for the purposes of placement. This explanation is important because it illustrates the differences between the plans of care. The first or lowest level of care relates to individuals placed in homes for special care. The residential care facility, RCF, would provide 24-hour supervision on a minimal basis without a great deal of programing. It would involve supervision, administering medication, doing the residents’ laundry and providing meals. It can also be known as a licensed boarding home. An individual may share a room or they may not. They are free to come and go but their basic necessaries of life are provided for them. In Benstead’s term it is a maintenance setting. Next in intensity would be a group home setting which would provide more or less 24-hour supervision with the addition of programing done by staff. Programing would place the responsibility on the residents to perform day to day tasks needed to be done in the community in order to move into a less structured environment. The next level is known as the adult residential center, again 24-hour supervision. The individuals who reside in an adult residential center require programing of a rehabilitative nature. There is not a great expectation that individuals move from the adult residential center out into the community. In Mr. Benstead’s words, “the potential for rehabilitation and movement beyond that level of care is not great”. The most intense setting would be the RRC level of care where considerable programing is available. The goal is to provide the programing and support that would be needed for an individual to move from that setting into a less structured environment. Placement depends on the needs of the client. Classifications speak to the level of care, not necessarily the place of care. A person classified as needing RRC level of care would require an equivalent level of care as can be provided in an RRC institution whether or not actual placement is in the institution or community. Individuals assessed as requiring RRC level of care can and have been housed in community small options depending on the nature and extent of their difficulties. There are three community based options - the supervised apartment, a community residence like an adult foster care situation, and the third is the small option home. The small options are a staffed option where community residences would be a private family providing care and support as one forum and supervised apartment as another. Adults are living in supervised apartments, some with live-ins up to full time and some with no live-in support. There are a range of possible services. They service people with long term disabilities, mostly severe and persistent mental health illnesses, intellectual disability or physical disabilities that would be long term and significant. The Departmental goal is to try and provide the least restrictive, most cost effective option and to provide a safe environment for the client, for the staff, for neighbours and the community. It is Departmental policy to ensure that the cost of the care plan resulted in dollars spent in the community, not exceeding the equivalent costs in a licensed facility. Ms. J. was classified on June 23, 1999 as requiring RRC level of care with a recommended placement option for a community based setting in a supervised apartment. The history of disturbing behavior and summary of recommendations at Page 13 sets out the specifics of the concerns. Mr. Benstead admitted that he advocated an approach that attempted to manage the risk in the community. An attempt was made to find a placement that allowed Ms. J. to have sufficient privacy for client and supervisors minimizing the contact between Ms. J., her neighbours and others. As a result of the receipt of specifications a request for proposals went out to various service providers. On March 16, 2000 Community Living Centres put forward a plan for a two bedroom apartment with the option for direct admission to the hospital in the event of a crisis. The need for 24-hour supervision would be reviewed after 3 months. While programming was imperative, a formal program with DASC was not envisioned. Their budget required a per diem cost of $589.78. This per diem could be reduced as Ms. J. progressed. They provided an update on May 1, 2000 with a per diem cost of $470.71. The Regional Residential Services Society provided a budget of $450.00 per day. They were unable to offer a placement option due to their own budgetary discussions with the Department of Community Services. Metro Community Housing Association offered a proposal for residence in a home in Dartmouth with 24-hour supervision. Their per diem cost was approximately $406.00. The cost of the care plan proposed for Ms. J. exceeded that of institutional care. The Department of Community Services considered the cost prohibitive. Based on their own assessment of the file, the risk and the cost they refused to fund placement in a small options home. The plans were then put on hold for a period of time because Ms. J. experienced some difficulties and decline. Eventually the plans fell through. Subsequent to the April 17, 1999 case conference Mr. Benstead’s superiors expressed their ongoing concern about the level of aggressiveness associated with Ms. J.’s behavior and the proposed placement. The Department of Community Services considered Ms. J. too high a risk to place in the community. In March 2000 Ms. J. indicated she was prepared to accept placement at HCRRC partly because she wanted desperately to get out of the Nova Scotia Hospital and move towards community placement. At that time she was denied entry into HRCC because of the pending closure. Mr. Boyd was asked to obtain a better assessment of the risks. Dr. Theriault, the psychiatrist on the Forensic Unit of the Nova Scotia Hospital, was engaged to complete a risk assessment. His report is dated November 2, 2000. Dr. Theriault cautioned about the severe limitations of a risk assessment on Ms. J. There were three particular variables respecting Ms. J. which made this analysis risky; she is not a person of normal intelligence, she does not have a history of criminal behaviour and she does not have a major and psychiatric disorder which is clearly defined such as schizophrenia or bipolar mood disorder. He completed the assessment and concluded that the plan described by the hospital mimicked the supports in the hospital and was worthy of a trial. Of interest are his observations as follows: Dr. Theriault noted that Ms. J. was hospitalized since December 9, 1998. He further noted that her disruptive behaviors led her to a lengthy stay at the Nova Scotia Youth Training Center between the ages of 13 and 18. He noted that she had been ready for community placement for the year 2000 and the difficulty in finding appropriate placement had caused the delay. It was this assessor’s belief that one could not use the formal risk assessment scales to determine risk because of the lack of clear empirical literature and known predictive factors predicting violent recidivism. He noted the historical lack of clarity respecting her diagnosis and her current diagnosis of pervasive developmental disorder. Because of her ”unique and idiosyncratic presentation” the assessor felt it was unwise to compare her to norms she did not share. He indicated given her marked cognitive impairments teaching her techniques and modalities to manage her behavior was likely not appropriate. He noted that the second way to manage aggression was through supervision and support to reduce or quickly control the behavior. This was the method he recommended. He noted that attention ought to be paid to environmental and interpersonal factors in her placement as these were common considerations in the escalation of violence and aggression. He concluded ”the support plan for Ms. J. would appear to constitute a well thought risk management plan which, taken in its entirety, would reduce the risk to the public of Ms. J.’s behavior”. He noted the need to adhere to the entirety of the inpatient treatment plan and the recommendations for the protocol for her community placement because the total package was a necessary component and the care providers’ failure to address one of these components could significantly increase the risk. Neither the Department of Community Services nor the hospital team changed their position as a result of this assessment. In December 2000 the Department of Community Services made an offer of a placement in a supervised institutional setting, first in the Halifax Regional Residential Center and later, when that institution ceased taking patients due to its impending closure, an institutional facility in Kentville or Sydney. Mr. Boyd indicated to the court that a change of plan would have to take place. The Department was recommending a move from the community-based setting to an institution because the community-based setting would not be funded by the Department of Community Services through the Community Support for Adults. At this time it is clear that the issue of placement revolved around the allocation of funds and focused less on the best interests of Ms. J. At the time there were three licenced institutions in this Province providing RRC level of care. The Halifax Regional Rehabilitation Center, slated for closure in May 2002, the Kings County Regional Rehabilitation Center (in Waterville) and the Braemore Regional Rehabilitation Center in Cape Breton. At that time no one was being considered for entry into that facility. The Adult Protection worker initiated a request to Ms. LaPierre (DCS) to place Ms. J. in the HCRRC, an institutional setting in Halifax, with a plan to progress to community integration if she continued to respond in a positive manner that she had demonstrated over the past few months. At a case conference on November 16, 2001 Ms. J.’s circumstances were reviewed. Ms. J. was benefitting from the structured environment, attending to the activities of daily living and had improved functioning. She had also been given privileges for overnight passes. The treatment team continued to support discharge to a small options home. In a December 2001 review, Mr. Boyd recommended that Ms. J. continue to require close monitoring and supervision. It appeared that the Community Supports for Adults would not be funded by the Department of Community Services and that Ms. J. needed a placement. The HCRRC was slated for closure. Ms. J. was being considered as a priority placement for Kings County Regional Rehabilitation Center in Kentville or the Braemore Regional Rehabilitation Center in Cape Breton. When a less structured service could be provided safely outside of the facility they would consider community options in the Halifax area once again. While they have indicated she would be a priority placement in either Kings County or Braemore RRC there is currently no space available. The Kings County Rehabilitation Center is currently five beds beyond their licensed designation, largely due to re-allocation of individuals and the need to find placements for adults in the community. The Adult Protection worker had concerns with this plan. She recognized that Ms. J. would no longer have access to the professional team most familiar with her at the Nova Scotia Hospital. Ms. J. would suffer a serious loss of services. While others would suffer the same loss of services by relocation there is a specific reason to be concerned about Ms. J. losing the service. Ms. J. has a dual-diagnosis. There is a considerable history at the Nova Scotia Hospital. Her medical health care workers have specific expertise with respect to Ms. J. and loss of services would be significant to her. She would also lose her place at the Corel Hall Unit and this is a place that provides long-term structured support to persons like Ms. J. who require professional services over a long term. The plan put forward from the Nova Scotia Hospital called for a relocation in a small options in the community with the ability to immediately admit Ms. J. in the acute psychiatric setting available to her within Dartmouth at the Nova Scotia Hospital in the event that her medical situation deteriorated. There is no plan before me from the Department of Health or Community Services that offers equivalent assurances. Ms. LaPierre (DCS) informed the Adult Protection worker (DOH) that Ms. J. would not be placed in the Halifax RRC due to the closure. Ms. J.‘s position is that this placement did not address or abide by the recommendations of her health care providers and did not place her in a small options home in the community. Ms. J., her parents and her husband strongly oppose this placement plan. The medical professionals responsible for her care recommend against placement at an RRC facility and placement in a similar facility, particularly if it involves movement out of the HRM area. They have consistently indicated this would likely result in a deterioration of Ms. J.’s condition. There is an admission that moving Ms. J. to the Valley or Cape Breton would reduce her access to her current supports. The Adult Protection worker believes that it is in her best interests to remain in the Halifax region and based on further assessment to be placed in full community integration. The Department of Community Services’ proposal has a number of serious drawbacks: - The placement in either one of these two facilities would require relocating Ms. J. after a life-long residency in Dartmouth. - It would mean a termination of her medical care by the individuals who are most familiar with her special circumstances in the Nova Scotia Hospital and the SCOT Team. - It would mean that the current care plan for immediate readmission to the Nova Scotia Hospital is complicated if not rendered useless as a therapeutic tool. - It means that she would be relocating and separated from the community in which her parents live and have been an active support for her. - It means that her husband who is also on disability and residing in this area would either have to move away from his own support systems or separate entirely from Ms. J. Neither he nor Ms. J. have funds for transportation back and forth from Kentville to the HRM or Cape Breton to HRM. This means that her husband would be dependent on Ms. J.’s parents for transportation to see one another. Maintaining their continued relationship would be virtually impossible. - The evidence I have heard from the parents is that their visitation schedule and on-call presence would be greatly reduced. - The majority of her health care providers believed long term institutional care is not in her best interests. She has the potential for growth socially. The doctors do not believe it is possible in an institution. They believe Ms. J learns inappropriate behavior while institutionalized. Relocation to Cape Breton would constitute a more permanent termination of contacts with her community than placement in Kentville. On December 4, 2001 the Department of Community Services indicated they were only prepared to consider institutional care. Their concerns were twofold - risk and costs. They were concerned about the ability of care providers to meet her needs in the community and the cost of care and problems with past case management of Ms. J. in the community. On December 6, 2001 the hospital asked Mr. Benstead of Community Supports for Adults, Department of Community Services, to reassess Ms. J.’s classification. The Adult Protection worker was informed by the Hospital’s social worker that as a result of a change in medication that occurred some six months ago, there had been an improvement in Ms. J.’s behaviour, her level of anxiety had decreased and she was better able to cope. At the commencement of the hearing Ms. J. was being considered for a trial work placement with DASC Industries. As of the end of the hearing the Adult Protection worker reported that she was accepted for full time work with DSAC Industries. As of November 2, 2001 the hospital staff have issued Ms. J. overnight passes with her husband as an earned privilege. By the completion of the hearing this increased to two consecutive overnights. She has also received several 9-hour day passes. There have been no difficulties experienced by hospital staff. Mr. Boyd admitted that on November 16, 2001 he had been advised of Ms. J.’s progress in the hospital. He admitted he saw evidence of that progress in his observations of her. The Adult Protection worker with the Department of Health believed Ms. J. continued to require close monitoring and supervision in order to fend for herself. The Adult Protection order needed to be renewed to ensure that Ms. J. received the appropriate support and supervision. She concluded that placement in her own residence was unlikely to be funded by the Community Supports for Adults. She requested that the placement restriction be lifted in order to allow the Minister to place Ms. J. without restriction, in a facility of the Minister’s choosing. This would clear the way to move her from the Nova Scotia Hospital, to either Kentville or Cape Breton as a bed became available. The Department of Health continued to advocate for a structured setting in the HRM area. The Department of Community Services continues to offer to place Ms. J. outside the HRM area. The Adult Protection worker (DOH) recognized that there was a period of stability but in light of the past history made an assessment that it was uncharacteristic and that community integration would have to be based “on a high level of structure in tested outcomes ... in order for her to continue to be successful”. They oppose a community placement. The Adult Protection worker (DOH) was not indicating that a placement in the community was impossible; they were indicating that the Department of Community Services were not prepared to support a community based plan. During this November 2001 time frame the community-based option continued to be the recommendation of the hospital team. The two-page plan (the Corel Hall plan) dated December 6, 2001 originates out of the Treatment Team at the Nova Scotia Hospital and it recommends a community-based option. Weighing the Plan It is not the Court’s function to take over the assessment of the risk or to substitute its own decision for those qualified to make such an assessment, who are responsible for the consequences of placement. I must determine on whose opinion I rely when assessing the risk - that of the Hospital staff, of the Adult Protection Department or the Department of Community Services who have refused community placement. I must weigh the reliability of the evidence before me to determine which professional is in the best position to make the appropriate assessment. The persons most knowledgeable about Ms. J.’s functioning are the professionals in Corel Hall. It is clear that the hospital staff have the most current and reliable knowledge available. Ms. J. has been living in the hospital since December of 1998. They understand her needs and what supports are necessary to place her in the community. The Adult Protection workers and Mr. Benstead are individuals who review her progress on a periodic basis. The Adult Protection worker with the Department of Health obtain their information to make their assessment from Hospital Personnel. They fulfil a different function, bringing into their decision policy considerations. The Adult Protection worker was not as familiar as the health care providers with the occupational therapy programs in which Ms. J. was participating. She did acknowledge that there had been improvement in Ms. J.’s behaviour. The Minister of Community Services has not evaluated the cost of a revised proposal to account for the change in Ms. J.’s needs and behavior. I do not intend to indicate that there is any error in the limits respecting the Departmental function or ignore the fact that they have broader community and safety concerns and resource and cost issues to address. However, the individuals who are most knowledgeable about Ms. J.‘s progress are those who are more intimately involved with her medical and emotional well-being, that being the staff and nursing individuals associated with her care in Hospital. The Adult Protection Worker acknowledged that a determination as to whether placement in a small options can provide the necessary degree of structure and safety depends on the care plan. Certainly wherever placement is chosen, the evidence supports the need for a high level of structure and support and strict adherence to the details of the plan of care. The Adult Protection worker was not familiar with the small options program sufficiently to make a recommendation as to whether there was one that could provide a level of structure that Ms. J. required. Mr. Boyd confirmed the importance of the support offered through the Nova Scotia Hospital and confirmed that re-integration into the community depends to a large extent on the availability of supports that are familiar and available to Ms. J. These supports include her family and her husband. He confirmed that long-term institutionalization was not in Ms. J.’s best interests; that her best interests would be better served to be in a supervised community setting. Her father and husband testified. Her parents adopted Ms. J. in her infancy and have been steadfast in their support and advocacy for her. Their tireless commitment to her well-being is admirable. They have three other children. They are currently retired and have personal contact with Ms. J. at least once a week. They advocate for her and provide her with personal articles on an as needed basis. She relies and prospers on their support as one piece in the complex support system in place to ensure her safety and well being. They assist in observing her behavior and acting as a monitor communicating their observations to her health care providers. Her father has observed that over the last 5 - 6 months her behavior has settled and over the last 1 - 1½ years controlling her behavior has improved. Ms. J.’s husband suffers from physical and developmental issues as well. He lives in the HRM region and is supported by social assistance. His finances are limited. The controlled access to Ms. J. is currently being well managed and appears to have a positive influence on her. Mr. J. would not be able to travel outside the HRM region without the assistance of Ms. J.’s parents and/or other financial assistance. Her access to him would be severely restricted and her access to her parents would be seriously eroded. As it relates to best interests, the recommendation of the Hospital staff continued to address the terms of risk, Ms. J.’s well-being and protection of the public. They determined that community setting could take place. To add to the evidence there is a report from Halifax County RRC dated May 1, 2001 which indicates that Ms. J. is not a suitable candidate for their service because of their closing and because they anticipate there may be a deterioration in her condition with possible re-admission to the Nova Scotia Hospital if she was admitted to RRC. There are notable changes in Ms. J.’s behavior. She has been spending overnights outside the hospital with her husband; she was part-time employed in the hospital in a sheltered workshop setting and now has been accepted after a trial period to full time hours with DASC Industries. She has improved her situation in terms of community placement. Over the course of six months she had made progress. Her diagnosis and treatment appear to be improved. Mr. Benstead (DCS) completed the most recent assessment respecting the level of care and recommendation for placement on December 11, 2001 for the purposes of classification and housing. Mr. Benstead was the DSC representative most connected with the fact finding process. He has extensive experience in this process of classification and assessment. Mr. Benstead has been involved in case management of Ms. J.’s case for approximately 10 years and continues in that position today. Ms. J. has been a user of the community services since 1988 when she applied for social assistance. Mr. Benstead’s involvement would be considered more acute and sporadic rather than consistent. Due weight must be given to his concerns. However, he relies on the medical professionals for their analysis. He admitted that he had very little connection with the file since June 2000 when a decision was made to refer Ms. J. to the RRC. There was no action on the file by him until December when he accessed the sources to determine whether there should be a reclassification. Ordinarily the hospital contacts Mr. Benstead when they have a placement plan they wish to implement. He assesses it to determine if it is appropriate. In the course of his assessment he would refer the patient’s chart; meet with the team which would include the prime nurse, social worker, occupational therapist and psychiatrist and the client. In December 2001 he went to the hospital, reviewed her chart, had some discussions with the occupational therapist, met on December 4th with some Corel Hall staff and confirmed that his belief and staff’s belief was that her level of care remained at an RRC level. In reference to the December 6th proposal put forward by the Corel Hall Treatment Team he admits that he did not do an in-depth assessment of it or review it with any agencies. He is concerned about the need for 24-hour care which would require more staff. While the hospital team is convinced Ms. J. can now live with other residents, Mr. Benstead is not because of her experience in the mid-1990's with other residents. He is concerned about her level of maturity. Historically she was involved in physical and aggressive behaviour with other residents and staff. He is concerned about her refusal of medication as documented in the chart, the need to strictly monitor her phone privileges and to continue to have her clothes in a locker. He is concerned about her expressed anger at her husband on occasion and he doubts whether the level of care required is realistic in the community. Dr. Riives was able to explain some of the concerns raised by Mr. Benstead in his report and placed them in context which made them less of a concern when assessing Ms. J.’s risk in the community. When seen in this light there is a significant gap between the assessment of Ms. J.’s residential needs by Community Services and the assessment of her needs and how to provide these services by the hospital staff. One cannot presume that the closure of the Halifax RRC is closure based on the fact that the need for institutionalized care has been eradicated in Nova Scotia. The issues with respect to closure of this particular institution relates to the cost of maintaining it. Further, a large part of the difficulty here is that there is a moratorium on small options, the community based option budget under the Department of Community Services. Thus while there is a proposal for small options there is a moratorium on any new small options and that has been the case at least since 1998. One has to wait until a position becomes available in a current small options program and that then requires an assessment as to whether the individual they intend to place in that freed up space is appropriate to the circumstance. It is clear that a one-in/one-out policy, because of the “significant budgetary constraints that they operate within” severely limits the options available to individuals like Ms. J. I have also heard consistent evidence that in spite of the moratorium, in situations of specific need, exceptions have been made. A number of exceptions related to the lack of available space elsewhere, downsizing of available institutional care, etc. This downsizing has been related to cuts in government spending; closure of the HFCC after weighing the cost of maintenance and revitalization of the old structure and related to national and provincial adherence to a policy advocating the eradication of institutional care where possible and appropriate. Mr. Benstead’s evidence is consistent with other witnesses. There will always be a need for RRC level care. In spite of the policy suggesting a change in direction from institutionalized care to community care there will be clients who will always require an institutionalized setting and/or the level of care associated with RRC classification. Some explanation was given by Dean Hirtle with respect to the government’s decision to place a moratorium on the creation of new small option programs until such time as they can implement a single entry access process which would provide to them sufficient data on the numbers, nature and needs of applicants to determine where to focus the priority. There were, however, no time lines discussed with respect to the end of the moratorium or when the single entry access system would be in place sufficient to allow the government to assess the data. My conclusion is that it is not a consideration in terms of the individualized plan for Ms. J. and not likely to be achieved within a time frame that would address her need to be placed in an appropriate facility. In addition, now Ms. J. has unsupervised passes into the community. There are periods of time when she is unsupervised, albeit always in the presence of her parents or her husband. Mr. Benstead believes that the costs associated with Ms. J. would be similar costs incurred if placing a special needs child. Mr. Benstead admits that a lot of information in this most recent classification is based on historical evidence as a result of events in Ms. J.’s life which happened prior to admission in 1998. The changes and improvements in her behavioral and medical status have been noted throughout. Mr. Benstead is indicating that if the money were available he cannot say that a small options program would not work. There would always be a degree of risk but a risk that was endorsed in 1999. Ms. LaPierre (DCS) acknowledged that they do not ordinarily place individuals outside the region although at the time of her testimony there was one individual that may have to go outside the region because there was not an appropriate available facility. She acknowledged that there are exceptions granted to the moratorium for three different small option groups to be opened based on urgent need and there is no restriction in terms of supervised apartment placements. She acknowledged that since the moratorium they have developed many community based supervised apartment placements. They currently have 439 people living in apartments. The original plan was based on an assessment that if Ms. J. required 24-hour supervision and that if she left the home a staff person would go with her. In a small options home she would have to have a staff person stay in the home with the other residents while a staff person would be able to go with her in the community. With her placement with DASC Industries there should be a corresponding reduction in the staff hours needed in the home. The Respondent tendered new options for implementing the proposed plan with a range of per diems that incorporated the changes in her needs. It is not the court’s duty to do other than consider the per diems as one factor when weighing the respective positions of the parties. Given the per diem noted for continued hospital care over the last years and the alternatives there is insufficient evidence for me to conclude they are so unreasonable that the court ought to support the Minister’s rejection of a small options placement on cost alone. Per diem in Halifax County Rehab was $173.00 and per diem for Waterville in Kings County would be similar, around the $200.00 per day bracket. There was evidence of a special pilot project for brain-injured individuals which has resulted in a per diem cost of $250.00 - $260.00 per day. There is evidence to support in certain circumstances an increase in an average per diem to cover extra expenses or to cover the special needs. Keeping Ms. J. in hospital over the last 2 years comes with a per diem price tag of $445.00 (1999 - 2000 year), not including maintenance and capital costs. Clearly exceptions are made to the average costs and placement options. To some extent the offer for the placement in Waterville or Sydney was based on an historical assessment. Balancing Provincial Intervention with Provincial Accountability and Individual Autonomy An event occurred in the course of the last two years that best illustrates the need to provide limits and reviews when authorizing invasive intervention in the lives of adults who have been determined to be in need of protection. In June 2001, notwithstanding the Order of the Court, during a period of hospital labour unrest Ms. J. was transferred from the Nova Scotia Hospital to the Halifax County Regional Rehabilitation Center where she resided until she was relocated to the Hospital on July 24th and admitted to Corel Hall where she currently resides. This transfer was done to address anticipated housing difficulties at the Nova Scotia Hospital while the period of labour unrest continued. The transfer was done contrary to the Court Ordered placement, without any application to the Court seeking a variation or approval of the Court in that placement. The parents and the Adult were not consulted. The transfer occurred without consulting the Adult Protection workers. The course of e-mail and correspondence make it clear that those responsible for her legal status had no input into the transfer and those receiving her had no knowledge of the Court Order. There was no process in place that could address this individual’s rights, needs or wishes. Neither, did it appear, were her medical care workers consulted. This was a management decision done without restriction, without due process and without regard for the Court Order. If there was a degree of risk associated with her immediate placement, it was not clear on the record or in the process. There is an absence of legislative direction in the Adult Protection Act that prescribes the limits of intervention. Legislation of similar nature, The Children and Family Services Act prescribes a mandatory court review after the fact in situations of first instance (sec. 33) and where the Department has already intervened and has authority over the child a requirement for court review after the extended intervention (sec. 43(3)). If imminent risk is the motivating factor certainly a process ought to exist to call for prior court authority or a speedy subsequent review. In the absence of express authority, acting contrary to Court Order ought to be seriously discouraged in the public and private domain. The evidence regarding the sudden and temporary placement of this adult in the HRCC during the period of labour unrest, in the course of these proceedings, is an indication of how little control a vulnerable adult has when there are greater factors which interfere with the individualized plan of care. In the notes contained on June 27, 2001 it is clear that this worker made various attempts to contact individuals to determine who authorized the move of Ms. J. to the HRCC. On June 28 Mr. Turnbull reported to Mr. Boyd that he was aware that there should have been a consult prior to relocation. This move took place as a result of senior management officials with the Department of Community Services and Health. It is suggested the move was made on an urgent basis and authorized by Ms. Bray who gave testimony in Court with respect to other matters. It appeared that the social worker with the Halifax Regional Rehabilitation Center was not advised of the Court Order. He was unaware of the long term plan for Ms. J. The family and Ms. J. were only advised on June 26th of the transfer. This arbitrary transfer resulted in a diminution of Ms. J.’s rights and privileges from the Hospital to the Halifax RRC without due process or accountability to her or her legal guardians. Dr. Eastwood did note that when she was returned from the HCRRC it took a couple of days for her to get back on track. The individuals who were responsible for her move were advised that this move could be considered in contravention of the Court Order and was not recommended as in the client’s best interests. They were also advised that the move could be detrimental to Ms. J. There is no doubt that, as a result of the restriction in the court order and the insistence by the Adult Protection workers, Ms. J. was transferred back to the Nova Scotia Hospital eventually. Had the order not been in place, regardless of the recommendations of the SCOT Team, her mental health worker, medical health care workers, her family, her husband and herself, she would have been transferred to the Halifax RRC and relocated in one of the two facilities currently being offered, regardless of the effect it had on her. Absent clear and specific legislative directive, process and definition, limitless invasion in the lives of incompetent adults is a dangerous proposition. The individuals before me who were involved in the care and management of this individual in care exemplify good intentions and concern for this adult. However these individuals must operate within a system. Systemic interests have a broader accountability to a variety of interests. They do not, in this circumstance, reflect the best interests of this individual. Where the interests of the system and the individual are in conflict a process must exist to account for the nature and extent of the invasion in an adult’s life. In this circumstance the evidence of the Minister does not satisfy me that the proposal for removal of this adult to another residential community outside the HRM region addresses as a priority the best interests of this adult. The overwhelming weight of the evidence suggests that the plan of care proposed by the Minister will not enhance the life of this adult. The proposal addresses historical risk and does not adequately consider the changes in behavior and condition of the adult. The plan emphasizes the cost factors as a priority and a suspicion of risk associated with historical events. Despite the number of professionals who support a community placement no attempt has been made to reevaluate costs or construct a trial placement to monitor Ms. J.’s progress in the recommended placement option. Cost is a legitimate consideration for the Minister of Health and Community Services. Cost is not the only consideration and must be weighed in light of the scant legislative directive contained in sections 9(2)(b) and (c). Conclusion Under section 7, once the Minister is satisfied that the person is an adult in need of protection, there is a legislated mandate to assist the person. In this instance the court has granted the Minister’s application for a continuation of the adult protection order (by consent). Pursuant to section 9(3)(c) the Minister is authorized to provide the adult with services including placement, such placement much respect the legislative objective. The Minister may place the adult in a suitable placement option that has regard for the best interests of the adult and will enhance the ability of the adult to care and fend adequately for herself and will protect the adult from abuse and neglect. The current plan of the Department of Health as espoused by the Department of Community Services does not fulfill the legislative requirements. The Minister of Health does not have limitless and unilateral power without restriction to intervene in the life of an adult found to be in need of protection. Ms. J.’s circumstances are crafted as a result of her disability and not by her intent or volution. Thus arbitrary interference with her individual rights and responsibility without due process denies her the basic minimum standard of due process adhered to in the criminal justice system to those who are competent and participating in their own life construct. This order prohibits the Minister from placing Ms. J. in a facility outside the HRM area as proposed. The Minister continues to be responsible for designing a placement in accordance with the evidence of the adult’s needs and circumstances in accordance with the legislative directive. Moira C. Legere, J.