HRTO adjudicator says ‘Human rights protections do not go away in a pandemic’
Barrie mom Pamela Libralesso calls herself an “accidental advocate.”
But after a “landmark ruling” by the Human Rights Tribunal of Ontario (HRTO) — about her right to gain appropriate access to her nearly 15-year-old special needs son during the pandemic — she’s being considered a trailblazer in the congregate care community.
In a 41-page decision, released March 23, adjudicator Jennifer Scott found that the caregiving agency did not carry out its duty to accommodate her son’s specific needs and allow his parents to visit him in his group home while managing the potential safety risk of the pandemic.
“Human rights protections do not go away in a pandemic,” Scott wrote.
At issue was the continued refusal by Empower Simcoe, which runs 41 group homes, to allow the young man’s parents to visit him while completely following all the proper precautions of screening, hygiene and masking but not social distancing.
Family members had been completely involved in the boy’s daily life prior to the pandemic but were not able to see him for six months.
The young man suffers from a rare genetic condition that has led to both developmental and physical disabilities. He is non-verbal and Libralesso says that means traditional communication methods don’t work with him.
The report states that one of the ways he communicates is “through physical touch” and that her son would not be able to comply with physical distancing requirements “without being physically restrained.”
The HRTO report confirms that during the time his parents wanted to visit there were only two children living there — one had returned to their family.
When I first spoke with Libralesso last July — a month after the HRTO application was filed — she said the government’s “visitor” policies were getting more and more “confusing” and, as a consequence, every agency implements what it sees fit.
The very same applied to long-term care and retirement homes. In fact, it still applies even with the majority of residents fully vaccinated.
Reached Friday, Libralesso said the HRTO decision affirmed what all parents with children in congregate settings already knew: The province provides the policy guidelines but caregiving agencies are “self-governing” and interpret those guidelines whatever way they want. They aren’t legally binding, she says.
“There were options available,” she said. “I really tried to come to some sort of an arrangement.”
Libralesso said they finally saw their son on Aug. 31 of last year and since then they’ve had “uninterrupted access” to him after coming to an arrangement.
When they first saw him, he was “clearly not himself.”
She said he “completely ignored” her husband and came to her, grabbed her hand, looked at her, then ran back to the front door of the group home.
He was super confused and silent where he usually made “happy sounds.”
“It was awful,” Libralesso said. “It took some coaxing.”
It took two months to get him “back,” she explained.
Empower Simcoe CEO Claudine Cousins said her organization has always taken its obligations under human rights legislation seriously.
“This case raised difficult and complex issues regarding the role of human rights in the middle of a public healthcare crisis,” she said. “Empower Simcoe is reviewing the decision and cannot comment further at this time.”
Jessica DeMarinis, counsel with the Arch Disability Law Centre, who represented the young man, said the statement in the decision that “human rights don’t just go away during a pandemic” is not only powerful but readily transferable to various other sectors.
She said this decision makes it clear it is incumbent on the service agency to make the necessary inquiries with the government to explore ways in which “appropriate accommodations” can be put in place.
MPP Lisa Gretzky said the decision adds “substantial pressure on the government” to correct policy guidelines currently in place and to pass Bill 203.
Gretzky brought forward a private members bill last September — More than Just a Visitor Act or Bill 203 — which would ensure the rights of residents receiving care in congregate care settings are protected and that they will not be denied access to family members or designated caregivers.
It has sat on the books since last Sept. 24.