Nova Scotia (Health) v. J.J.

Nova Scotia (Health) v. J.J. Court Court of Appeal Date 2003-02-19 Citation 2003 NSCA 25 Docket CA 180517 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA); Hamilton, M. Jill (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Nova Scotia (Health) v. J.J. - 2003 NSCA 25 - 2003-02-19 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Nova Scotia (Health) v. J.J., 2003 NSCA 25 Date: 20030219 Docket: CA 180517 Registry: Halifax Between: Nova Scotia (Minister of Health) Appellant v. J.J. Respondent Judges: Roscoe, Freeman and Hamilton, JJ.A. Appeal Heard: February 3. 2003, in Halifax, Nova Scotia Held: Appeal allowed per reasons for judgment of Roscoe, J.A.; Freeman and Hamilton, JJ.A. concurring. Counsel: Roberta J. Clarke, Q.C., for the Appellant I. Claire McNeil, for the Respondent Reasons for judgment: [1] The central question in this appeal is whether a judge of the Supreme Court (Family Division) has the jurisdiction to stipulate the services the Minister of Health should provide to an adult who has been found to be in need of protection pursuant to the Adult Protection Act, R.S.N.S. 1989, c. 2 (APA). Legislation [2] It will be helpful to begin with a brief review of the relevant segments of the applicable legislation. The purpose of the APA is set out in s. 2: 2 The purpose of this Act is to provide a means whereby adults who lack the ability to care and fend adequately for themselves can be protected from abuse and neglect by providing them with access to services which will enhance their ability to care and fend for themselves or which will protect them from abuse or neglect. [3] Adult in need of protection is defined in s. 3(b) as: "adult in need of protection" means an adult who, in the premises where he resides, (i) is a victim of physical abuse, sexual abuse, mental cruelty or a combination thereof, is incapable of protecting himself therefrom by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his protection therefrom, or (ii) is not receiving adequate care and attention, is incapable of caring adequately for himself by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his adequate care and attention; [4] The APA charges the Minister of Community Services with its general administration. However, during the course of this proceeding, by Order in Council 2000-159 dated April 5, 2000, made pursuant to s. 4 of the Public Service Act, R.S.N.S. 1989, c. 376, the responsibility for the Act was transferred to the Minister of Health. The term “Minister” used herein refers to the Minister responsible at the applicable time. Although the Minister of Health became responsible for the APA, funding for many of the programs providing residential services for persons with special needs remained within the authority of the Department of Community Services. [5] Section 7 of the APA states: 7. Where, after an assessment, the Minister is satisfied that a person is an adult in need of protection, the Minister shall assist the person, if the person is willing to accept the assistance, in obtaining services which will enhance the ability of the person to care and fend adequately for himself or will protect the person from abuse or neglect. (emphasis added) [6] If the person is not willing to accept the assistance of the Minister, s. 9(1) provides that the Minister may apply to the Family Court for an order declaring the person to be an adult in need of protection. Subsection 9(3), the interpretation of which is most crucial to this appeal, states: (3) Where the court finds, upon the hearing of the application, that a person is an adult in need of protection and either (a) is not mentally competent to decide whether or not to accept the assistance of the Minister; or (b) is refusing the assistance by reason of duress, the court shall so declare and may, where it appears to the court to be in the best interest of that person, (c) make an order authorizing the Minister to provide the adult with services, including placement in a facility approved by the Minister, which will enhance the ability of the adult to care and fend adequately for himself or which will protect the adult from abuse or neglect; . . . [7] Subsection 9(5) provides that any order made pursuant to s-s. (3) expires six months after it was made and s-s. (7) specifies that such an order may be varied, renewed or terminated by the court where the court is satisfied that it is in the best interests of the adult in need of protection. Subsection (8) indicates that renewal orders also expire after six months. Section 12 states that in proceedings pursuant to the APA, the court shall apply the principle that the welfare of the adult in need of protection is the paramount consideration. Background [8] The respondent, JJ, is a 34 year old woman who was found to be an adult in need of protection by Justice Moira Legere after a hearing on March 23, 1999. At that time, JJ was a patient at the Nova Scotia Hospital (NSH), after having been brought there by the police for a psychiatric evaluation in December, 1998. She had been apprehended after phoning a bomb threat to the IWK Hospital for Children. The admission to the NSH in 1998 was the 10th occasion since 1990 that she was thought to require inpatient psychiatric assessment or treatment. Her diagnosis was that of psychosis, borderline personality disorder and mild mental retardation. Later, she was also found to have pervasive developmental disorder, a mild form of autism which affects her communication and interpersonal skills. [9] Prior to the admission to the NSH in 1998, JJ had often lived in supervised apartments and group homes and at times had been on her own, but had experienced difficulty in all of these types of placements, mainly due to her aggression and behavioural problems. In addition to the formal admissions to the NSH, she had lived for periods of time at the Halifax County Regional Rehabilitation Centre, and as a young person had resided at the Nova Scotia Youth Training Centre. JJ is married to DJ who is mentally and physically disabled. [10] Justice Legere listed some of the concerns about JJ’s past behaviour as discussed by her doctors and social workers at an earlier case conference: . . . a history of eviction from apartments; exposing self; threats including threats with a knife, bomb threats, harassment; telephone calls with a phone being subsequently removed by MT&T; frequent calls to ambulance and fire department for assistance; frequently presenting in the emergency department; setting her hair on fire to gain attention; setting her coat on fire; violent behaviour towards others; when refused admission at the Dartmouth General Hospital she left the building and laid down in the street, in the dark, placing herself at risk. [11] The pattern with JJ over the previous years had been that during institutional admissions, with appropriate structure, medication and controls, she would settle down. Then following discharge, she would often stop taking the medication and gradually deteriorate. It was apparent that any placement in the community would require significant supervision for protection of the public and of JJ herself. The professionals from the NSH involved in JJ’s case, the Supportive Community Outreach Team (SCOT), were of the opinion that JJ was unable to function on her own and that she needed 24 hour supervision. [12] After making the findings that JJ was an adult in need of protection pursuant to s. 3(b)(ii) of the APA, and that she was not competent to decide whether or not to accept the services of the Minister pursuant to s. 9(3)(a), Justice Legere indicated that her jurisdiction to approve a specific placement for JJ was “somewhat limited”, but the Minister of Health and JJ, through her counsel, had explicitly consented to an order providing for a placement: . . . in her own home with required supervision, a minimum of eight hours, on the provision that: there will be a standing order through the SCOT team at the Nova Scotia Hospital for commitment to the hospital in the event that there is a breach of the plan of care, which would include a breach by Ms. [J] by refusal to take her medication; that the SCOT team and the Adult Protection team will be devising a plan of care which will address and ensure that Ms. [J] is adequately occupied through the day, properly supervised in her apartment in my view through the day and night in whatever way the Minister decides is appropriate given what they know of her needs and risks associated with placement in her apartment; and that Ms. [J] has agreed to the required supervision, to commit to taking her medication on a regular basis recognizing that failure can put her back in the hospital until such time as she is re-established on medication. (emphasis added) [13] The order issued on March 31, 1999, reflected the agreement, and specifically provided that the Minister was authorized to provide services “... including placement in a facility approved by the Minister ... specifically supervision in her own apartment as may be required as determined by the Minister in consultation ...” (emphasis added) with the SCOT team. The order also provided that it was subject to review by the court at any time and was scheduled for review in September, 1999. [14] The initial order was renewed periodically on several occasions. In March, 2000, the order was varied by consent to substitute the words “in her own residence” for the words “in her own apartment”. Meanwhile, JJ remained at the NSH. Her psychiatrist, Dr. Diane Eastwood, described the period following the initial court order as follows: [J] did well until the summer months, when her behaviour gradually deteriorated. She began fighting with her husband when he visited, began lying to staff, demanding attention and monopolizing staff time, making harassing phone calls and not adhering to her privilege levels. Acting out and AWOL incidents were frequent. The mood stabilizing medication carbamazepine was added to the antipsychotic medication and gradually titrated upward with a beneficial effect. By December 1999 [J] was again doing well. The following summer, [J] again suffered a period of behavioural dyscontrol and irritability. Both her antipsychotic and mood-stabilizing medications were increased and in the autumn [J] settled. In December an attempt was made to decrease [J’]s antipsychotic medication slightly but her behaviour started to deteriorate and it was increased again with resolution of her symptoms. In late spring 2001 [J]’s mood deteriorated somewhat and she became irritable. She claimed to have taken a drug overdose and had to be assessed at the Dartmouth General Hospital. She later stated she had made up the story of the overdose because she was angry that discharge plans were not going forward. [15] The adult protection worker responsible for the case at that time, Stephen Boyd, in his file note dated August 31, 1999, indicated that he had been advised by Dr. MacIntosh, her psychiatrist, that there was a decline in JJ’s mental health and that she was not able to be discharged from the hospital. By September, 1999, funding had been approved for a community placement for JJ but there was no vacancy in a suitable home and her discharge was cancelled by the hospital. [16] During 2000, JJ continued to be treated at the NSH and improved to the point that the staff were prepared to discharge her. Dr. Eastwood confirmed that in her opinion JJ remained an adult in need of protection and in a medical observation form dated August 14, 2000 said that JJ was: . . . not capable of caring for herself adequately in the community. She is intellectually handicapped with features of Pervasive Developmental Disorder. She has poor impulse control. She has repeatedly made poor decisions that put herself and others at significant risk. [Ms. J] functions in the mildly mentally retarded range of general intellectual ability. On academic achievement tests, she performed at the Grade 3-4 level. Her attention and concentration abilities are very limited. [J] has little appreciation of/insight into her limitations and difficulties. She is unable to appreciate the risks and benefits of treatment. [17] Dr. Eastwood recommended that JJ be provided with a placement in: A small (ie very few residents) community setting where intensive, 24 hr/day support and supervision are provided. At times, this may require the presence of more than one staff person. [18] However, by August, 2000, it was apparent that the level of funding required for this type of support and supervision of JJ in a community placement was not approved by the Department of Community Services. When the initial APA order was consented to, it had been contemplated that only eight hours daily supervision would be required. In late 2000, the Minister proposed placement “... in a facility approved by the Minister where she could receive the adequate care, attention and supervision she requires ...”, specifically the Halifax County Regional Rehabilitation Centre in Cole Harbour. [19] In February, 2001, Justice Legere heard an application by the Minister to vary the order by removing the specific placement provisions, “in her own residence”. It was decided to hear the application in two parts. The first step was to determine the extent of the court’s authority to make a placement decision, and the second stage was to hear evidence as to JJ’s best interests. By decision dated March 13, 2001 (2001 NSSF 12), Justice Legere concluded that it was her duty to inquire into the specific plan being offered by the Minister and ultimately to endorse a plan that best reflected the best interests of the adult in need of protection, and to ensure that the plan enhanced the person’s ability to be cared for or to fend for themselves. She observed: It is my conclusion the court has not only the authority but the duty to conduct itself in the second stage of this review in a manner which accords with the principles of fundamental justice. It is also my conclusion that the legislature could not have intended to endorse a legislative scheme inconsistent with the fundamental principles of justice. In this instance, this includes placing the burden on the Minister to prove the change in the original court order satisfies the best interests of the adult. To weigh the evidence in a meaningful way the court must have evidence of the competing plans. If the Minister wishes to argue solely on the basis of resources, surely they must produce convincing evidence that their proposal is reasonable and justifiable as the court balances the rights of the individual to reasonable intervention in their lives. The proposed intervention must accord with the best interests of the Adult and be said to enhance their ability to care for themselves or be protected from harm. While it may be that a court ought not to order a particular placement, surely a court can prevent the placement of an adult in circumstances where their best interests are not served and the position cannot be said to enhance their life circumstances. [20] By decision dated March 13, 2001, the existing order was renewed and the matter was adjourned to December, 2001 for hearing on the merits of the two plans for placement of JJ, the one being proposed by the Minister, and that advanced by JJ’s counsel as suggested by the staff of the NSH. During the subsequent five day hearing, the Minister’s witnesses proposed that JJ be placed in a Regional Rehabilitation Centre (RRC), with a view of moving her to a community placement when appropriate, while the NSH staff recommended that she be placed in the community in a supervised and structured setting such as a small options home. JJ personally expressed a desire to live with her husband without supervision. By the time of that hearing, it was apparent that the Halifax County RRC was scheduled to be closed in the near future. [21] In the decision dated April 3, 2002 (2002 NSSF 19), the trial judge weighed the alternative plans in view of the evidence, and specifically assessed the medical evidence, the history of JJ’s previous community placements, and the best interests of JJ. The Department of Community Services had classified JJ as a person requiring a regional rehabilitation level of care, or “RRC”. Mr. Frank Benstead, the Care Coordinator in the Community Supports for Adults Program of the Department of Community Services described the various types of classification in his evidence as follows: A. There is the residential care facility, RCF, which provides 24‑hour supervision and ‑‑ on a minimal basis, however. There's not a great deal of programming involved. It's basically supervision, administering medication, doing the residents' laundry, providing the meals, etc. It's also been known as a licensed boarding home. So you get a fair amount of individuals living in a facility. They may share a room, they may not. They're free to come and go. But their basics are provided for them. Again, it's more of a maintenance setting. There's not a whole degree of expectation that the client would move from that level of care. 29. Q. And what other levels of care are there? A. Next in intensity, if you want to use that term, would be a group home setting. A group home setting again provides more or less 24‑hour supervision, but there is programming done by staff. There is programming that puts responsibility on the residents to perform the day‑to‑day tasks that they need to do in the community in order to move to a less structured environment. So the anticipation with people who reside in a group home is that they can get some instruction in order to facilitate their moving into a less structured environment. The next level above that is what's known as an adult residential centre, and it has a fairly ‑‑ again, 24‑hour supervision, does require ‑‑ clients do require programming of a rehabilitative nature, but the potential to move from that facility is not high, so they may have basic behaviours that require management by staff, but 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 there is considerable programming available. And again the goal of placement at an RRC is to provide the programming and support that would be needed for the individual to move from that setting into a less structured environment. . . . (emphasis added) [22] These classifications refer to the level of care required, not necessarily the placement options. A person with an RRC classification could be placed outside an institution if proper support were available. Jo-Anne Pushie, the adult protection worker then responsible for JJ, in her affidavit sworn December 7, 2001 indicated that the Department of Community Services staff did not favour a community based option for JJ because of the “... level of risk, the inability of care providers to meet her needs in the community, the costs of care, and problems with past management of [Ms. J] in the community.” [23] The plan proposed by the NSH staff was described by Justice Legere as follows: 71 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 [a unit of the NSH] 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 [a sheltered workshop]. 72 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. 73 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. [24] The estimated cost of providing a placement of this nature for JJ varies greatly depending on whether she attends at a sheltered workshop during the day, and whether the staff on duty during the night shift are required to be awake or not. Proposals made by non-profit societies to the Department of Community Services in March, 2000, for providing a placement for JJ ranged from a per diem cost of $406.00 to $598.00 (approximately from $12,000 to $18,000 monthly). Later, in 2002, a representative of one of the groups, Carol Ann Brennan, testified on behalf of JJ that the cost of a community based placement providing for supervision would range from $175.00 per day ($5,250 per month) in a three bedroom home where there was an afternoon shift person on duty, plus a live-in support person (a person with an unrelated day job who was only present to provide support and company in the evenings) to $515.35 per day ($15,450 per month) in a single person home with night awake staff and an afternoon shift worker. Both these cost projections assumed that JJ would not be at home during the day. The witness noted that they have a long waiting list for the spaces in their homes and that expansion of services in the near future was unlikely. [25] The plan of the Minister to place JJ in a RRC facility would cost between $5,000 and $6,000 per month. Since the closure of the Halifax County RRC which was scheduled for March 2002, the only institutions providing that level of care are the Kings County Regional Rehabilitation Centre in Waterville, and Braemore in Sydney. The position put forward to the trial judge by the Minister was that based on the perceived risk that JJ posed to herself and others in the community, and because the cost of placing JJ in the community was more than in an institution, a community based option would not be offered. [26] JJ, her parents and her husband, all opposed any plan to move her to an institution outside of Metro Halifax, mainly because it would be difficult for them to visit her. [27] The trial judge listed the disadvantages of the Minister’s plan in the following passage: 107 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 [Halifax Regional Municipality] 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. [28] The trial judge concluded her decision as follows: 166 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. 167 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 168 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. 169 In this instance the court has granted the Minister's application for a continuation of the adult protection order (by consent). 170 Pursuant to section 9(3)(c) the Minister is authorized to provide the adult with services including placement, such placement must respect the legislative objective. 171 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. 172 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. 173 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. Issues on Appeal [29] The Minister appeals from the decisions and frames the issues as follows: 1. Did the learned trial Judge err in law and exceed her jurisdiction in making an Order which prohibits the Minister of Health from placing Ms. J. outside the Halifax Regional Municipality? 2. Did the learned trial Judge err in law or in fact in finding that the current plan of the Department of Health as espoused by the Department of Community Services does not fulfill the requirements of the Adult Protection Act ? Analysis [30] For convenience of reference, I quote again s-s. 9(3) of the APA which confers the jurisdiction at issue here: (3) Where the court finds, upon the hearing of the application, that a person is an adult in need of protection and either (a) is not mentally competent to decide whether or not to accept the assistance of the Minister; or (b) is refusing the assistance by reason of duress, the court shall so declare and may, where it appears to the court to be in the best interest of that person, (c) make an order authorizing the Minister to provide the adult with services, including placement in a facility approved by the Minister, which will enhance the ability of the adult to care and fend adequately for himself or which will protect the adult from abuse or neglect; . . . [31] The appellant submits that the trial judge erred in law in assuming the jurisdiction to evaluate the merits of the Minister’s plan as compared to the plan recommended by the Nova Scotia Hospital staff. It is argued that the court’s role is to determine if services should be “authorized” or not. The court does not have the authority to “direct” or “specify” a particular placement or to prohibit placement by the Minister in a specific facility or outside a certain geographic area. The appellant contends that if the trial judge does not find that the plan as proposed by the Minister is in the adult’s best interest, then she should refuse to make the order pursuant to s. 9(3)(c). [32] The respondent submits that it is the court’s role to assess whether the Minister’s plan is in the best interests of the adult in need of protection and to evaluate other placements that may better suit the person’s needs, and that the trial judge did not err in doing so in this case. It is argued that the court has the jurisdiction to direct the Minister to provide placements and services so as to ensure that the best interests of the adult in need of protection are protected. It is also submitted that in interpreting the APA, the court must take into account and promote Charter values such as the liberty of the person guaranteed by s. 7 and equality rights pursuant to s. 15. It should be noted, however, that the respondent did not question the constitutionality of the APA, so it is not necessary to speculate as to the outcome of such a challenge. [33] With respect, it is my view that the trial judge exceeded her jurisdiction in making an order prohibiting the Minister from placing the respondent outside the Halifax Regional Municipality. In that regard, she erred and the appeal should be allowed on that ground. [34] The approach to the interpretation of s. 9(3) must be undertaken in the context of the whole Act, as pointed out by Iacobucci, J. for the Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at ¶ 21: 21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. . . . I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit". [35] I would agree with the statements of Daley, J.F.C. in Re Moore (1995), 143 N.S.R. (2d) 369 at ¶ 22, and adopt his synopsis of the object of the APA: 22 The APA is benevolent and is two pronged in application. It is intended to improve the quality of care for adults who are in need of protection, by providing them with the means to improve their care. It is also intended to be protective of those adults who are unable to protect themselves from others or from themselves. The APA is not intended to address the immediate care and protection issues and ignore the likelihood that the need for protection may arise again once the APA services are withdrawn. In this sense then, the Act is intended to look at helping adults get established so they can look after themselves and for those who are unable to look after themselves because of chronic conditions, it is intended to provide services as needed. The APA in my view, must look to the future to determine if it should withdraw from its intervention or remain as a support and aid to the adult who requires its intervention in the future. The mechanism to do this are the renewal procedures. In these terms, I would conclude that although Section 3(b)(ii) speaks in the present tense and considering the Interpretation Act, R.S.N.S. 1989, c. 235, as referred to in Nova Scotia (Minister of Community Services) v. L.K., supra, at 383, it is to be read prospectively. To do otherwise would be contrary to the purpose of the Act to improve the quality of care and protection of the adult. [36] Judge Daley, in another case, Nova Scotia (Minister of Community Services) v. L.K. (1991), 107 N.S.R. (2d) 377, succinctly summarized the scheme of the APA: [14] The Adult Protection Act is triggered by a report that an adult may be in need of protection. The Minister, or rather her agent, makes an inquiry and if there are reasonable and probable grounds to believe the adult is in need of protection, an assessment is carried out, using a medical practitioner if necessary (s. 6). The Minister may apply for a court order, on four days notice, authorizing entry to carry out the assessment. If there are reasonable and probable grounds to believe that the person to be assessed is in danger, an order to enter may be granted on an ex parte application (s. 8). The Minister, shall after the assessment, assist a willing adult believed to be in need of protection, to obtain services to enhance the ability of the adult to care for him or herself, or protect the adult from abuse or neglect (s. 7). If the Minister believes, on reasonable and probable grounds, after the assessment, that the adult is in danger, in need of protection and is not mentally competent to make a decision to accept services or refuses to do so because of duress, she may authorize the removal of the adult to a fit and proper place to protect the adult (s. 10). [15] If the adult is removed (s. 10), the Minister shall bring the matter before the Family Court. The court, after hearing the evidence, may either dismiss the application (s. 10(5)(a)) or make a finding that the adult is in need of protection (s. 3(b) and 9(3)) and is either unable to decide whether or not due to mental incompetence, to accept the services provided by the Minister, or refuses assistance because of duress (s. 9(3)(a) and (b)). If the court declares that either s. 9(3)(a) or (b) applies then the court may, exercising its discretion and applying the welfare of the adult in need of protection rule (s. 12), authorize the Minister to provide services including placement in an approved facility where the adult will be protected and enhance the adult's ability to care and fend for him or herself. [37] I think it is abundantly clear that the court’s role in this scheme is to first determine whether the person is an adult in need of protection, and once that finding is made, the issue becomes whether it is in the best interests of the person to authorize the Minister to provide services. These steps are of course unnecessary if the person has already agreed to accept the assistance of the Minister, but when the person is unable through incompetence or duress to decide for herself whether to accept the services, then the court must make that decision, keeping in mind always whether the proposed services and placement are in the best interests of the adult. [38] In some cases, the person or her family will present an alternative plan that does not include the Minister’s services and in those cases the court must compare the two plans to determine which is better. See, for example Nova Scotia (Minister of Community Services) v. B. (L.), [1991] N.S.J. No. 266 (Q.L.) where Judge Daley determined that a 45 year old severely mentally and physically handicapped man should remain in the foster care placement provided by the Minister rather than be returned to the care of his elderly mother. In another such case, Nova Scotia (Minister of Community Services) v. L.K. (1991), 107 N.S.R. (2d) 377, the judge decided that a son’s plan to care for his 70 year old mother, who suffered from an Alzheimer-type dementia, in his home would be better for her than the Minister’s plan which was to maintain her in a private nursing home. [39] In other cases, the court will conclude that if the Minister’s plan is not authorized, that the person will simply return to the situation that existed prior to the Minister’s assessment, and once again be an adult in need of protection. For example, in Re Moore, supra, a chronic schizophrenic woman while living on her own, had been admitted to a hospital in a general state of neglect including poor personal hygiene, parasitic infestation and malnutrition. She had stopped communicating and for the most part, sat at home and smoked. Her plan was to return to living on her own while the Minister proposed a supervised apartment setting. The court found the Minister’s plan to be in her best interests and so authorized it. See also Nova Scotia (Minister of Community Services) v. F.R. (1988), 86 N.S.R. (2d) 147. [40] The case of JJ is one of the latter type cases. The Minister’s plan is placement in an RRC institution for at least the immediate future. There, JJ will receive programming, her environment will be controlled and structured, her medication will be monitored and her personal needs, food, clothing and shelter will be provided. That is the only plan advanced through the auspices of the provincial treasury. The APA unquestionably confers no jurisdiction to order the Minister to adopt and finance any other plan. Although the proposal suggested by the NSH staff and embraced by JJ’s counsel is probably in her best interests as found by the trial judge, it is not one being offered or approved by the Minister and no other person or agency has agreed to fund it, so it is, accordingly, not one available for the court’s consideration pursuant to the APA. Here, the choices available are the Minister’s plan or no plan. That is, if the order authorizing the Minister’s plan is not made, JJ would be free to return to whatever residence may be made available to her through her own resources or arrangements or through the assistance of her family or friends. If the judge is of the view that the plan submitted by the Minister is not in the adult’s best interests, then the judge ought not to have made any order pursuant to s. 9(3)(c). [41] The words of s. 9(3) which confer jurisdiction are “... may ... make an order authorizing ...”. To authorize means “1. To give legal authority; to empower ... 2. To formally approve; to sanction ...” (Black’s Law Dictionary, Deluxe Seventh Edition, 1999); “1. To empower. 2. ... sanction, approve, and countenance ..." (The Dictionary of Canadian Law, Second Edition Deluxe, 1995). The words of the section are permissive, not compulsory or directive. [42] I would, based on my understanding of the context and purpose of the APA, and the grammatical and ordinary sense of the words used, agree with the decisions of Judge Daley in F.R., supra, and Justice MacAdam, in Nova Scotia (Minister of Community Services) v. L.B. (1996), 162 N.S.R. (2d) 227, adopting the reasons of Judge Gass, as she then was, where they each came to the conclusion that there was no jurisdiction to order the provision by the Minister of placement at any specific facility. [43] In respect of the respondent’s submission that the APA should be interpreted in light of Charter values, given the procedural safeguards mandated, such as notice and time-limited orders and the inclusion of the best interests protection, I am unable to agree with the submission that, absent a constitutional challenge, the Charter sheds further illumination on the issues here. The interpretation I favour, is one which is just and reasonable in the circumstances and on the evidence presented in this case does not offend Charter values. [44] I would allow the appeal on the basis of the first ground, that is, that the trial judge exceeded her jurisdiction. In the circumstances, it is not necessary to deal with the second ground of appeal. We were advised by counsel that the matter is scheduled for a review by the trial judge in any event, because of the impending expiry of the existing order. The matter should be returned to the Supreme Court (Family Division) to be dealt with in accordance with the conclusions respecting jurisdiction reached herein. Pending that review, the variation order sought by the Minister is granted, that is, the prohibition and the limitation of variation clauses contained in the order dated May 13, 2002 and any renewal of it are struck out. In all other respects that order shall continue to be effective until it is varied or renewed by a judge of the Family Division, or it otherwise expires. Roscoe, J.A. Concurred in: Freeman, J.A. Hamilton, J.A.