Province must pay legal costs of family of austic child 

Case involved unproven accusations of sexual abuse by father

Published on March 25, 2016

A P.E.I. judge has ordered the province to pay more than $61,000 in legal costs to the family of an autistic woman in a case that involved unproven accusations of sexual abuse against her father.

Those accusations were made after the use of a technique called facilitated communication, whose reliability numerous studies have questioned.

In a recently released decision, P.E.I. Supreme Court Justice Nancy Key said the minister of health and the province's adult protection program failed the woman and her family.

Key called the minister's, Queens County Residential Services' and adult protection's treatment of the family "deplorable."

The woman, who was in her 30s, has autism spectrum disorder and lived in Queens County Residential Services Inc. group homes for 14 years before her last appearance in court in 2015.

The woman was considered non-verbal with a severe intellectual disability; one assessment determined her level of understanding was that of a one- to two-year-old.

All contact with her family was cut off after the province's adult protection received a referral in January 2015 related to allegations the woman's father sexually abused her.

The allegations were made at Queens County Residential Services through a method called facilitated communication.

Through a facilitator, it was alleged the woman's father committed sexual assault and sexual exploitation against her over a 22-year period.

Her father was never charged.

Further facilitated communications supposedly found the woman didn't want visits with her mother outside of the facility she lived in.

The mother sought to become her daughter's guardian, which led to a legal battle after the minister of health intervened in the case.

Doug Currie was health minister at the time.

An assessment was eventually completed for the family, which found the woman couldn't have made the allegations against her father, but rather they came from her facilitators.

The minister's lawyer said an assessment from a provincial psychologist was "inconclusive."

The woman's parents were eventually named guardians, and she was placed in their care.

The purpose of Key's decision was to deal with costs for the woman's mother's application to be appointed guardian.

In her decision, Key said if the minister of health had conducted an investigation in accordance with the Adult Protection Act it would have been clear early on the woman's communications weren't hers.

One study Key referred to in her decision compared the validity of information provided through facilitated communication to that gathered by a Ouija board.

In total, the woman's mother gave the minister of health and the court 70 studies on the unreliability of facilitated communication.

Key noted in her decision the minister refused to respond promptly or at all to requests to have the woman examined to determine her capacity.

In her decision, Key listed numerous other problems with the way the woman's case was handled, including that the minister refused to carry out his mandated obligations to the detriment of the woman's family.

"The minister of health and its designate must be held accountable," she said.

Key's decision also said the minister acted without legal authority in appointing legal counsel for the woman and in extending a protective intervention order.

She ordered $61,068.25 in costs.  

FACT BOX

What: Facilitated communication is a technique involving someone supporting the arm and hand of a person who points at letters, words or pictures. It is used to help people when other methods of communication don't work. Critics of the technique say the facilitator is the one relaying any messages.

What happens next?

Brandon Forbes, one of the lawyers for the family, said they want to take time to reflect on Key's decision before commenting further on it.

"Our clients are relieved that the supreme court has acknowledged the trauma their family has been put through, needlessly," Forbes said.

A spokeswoman for Health P.E.I. said the agency just received the decision and it is now being reviewed. 

rross@theguardian.pe.ca

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