In short, group homes, long-term care facilities, and government-funded shared living arrangements are contrary to the principles of choice and independence underpinning the Damages Trilogy. No reasonable person of ample means would choose to live in these environments.
Yet, even where in-home care is relatively uncontested and is ultimately awarded, the courts have occasionally erred in their understanding of the principles that frame the aforementioned precedents. Recently, for instance, the Alberta Court of King’s Bench in KY v. Bahler24 assessed the costs of future care for twin infant plaintiffs, who both sustained brain injuries as a result of the defendant doctor’s negligence. Although in-home care was properly awarded, the court seriously contemplated “some form of institutionalization” for the plaintiffs. This option was only rejected because no evidence of group homes within the community where the plaintiffs’ family lived had been tendered — not because “institutionalization” is completely contrary to the plaintiffs’ ability to exercise autonomy and independence.
The challenge for plaintiffs’ counsel in care planning is therefore threefold: they must ensure that the court has a full understanding of the principles underpinning precedent; they must ensure their client’s care plan is congruent with these principles; and they must tender evidence demonstrating that the defence’s care plan is in contravention with these principles.
Improving the Long-Term Care Plan
Crafting a viable care plan demands considerable time and expertise. Although the case law is clearly supportive of independent living, the many instances in which courts have failed to appreciate the nuances of the precedent found in the Damages Trilogy and elsewhere demonstrate that such care is not necessarily a presumption.
The team of experts that counsel should retain when drafting the care plan may include physicians; economists; certified life care planners; rehabilitation counsellors; mental health, occupational, and physical therapists; social workers; and Indigenous consultants who can opine on Jordan’s Principle programming.25 These experts must be able to opine on what sorts of resources the client will need and why in-home care is necessary to meet these care needs.
Experts must not only speak to why in-home care is preferrable, but why other options which may be presented by defence counsel are unsuitable for the plaintiff’s needs. In this respect, lay witness testimony is often helpful to explain funding shortages and detail the bleak reality of what life within group care homes and in shared living arrangements often entails.26 Lay witness testimony may also be solicited to describe social and recreational programming available in the community, which defence counsel often incorrectly identify as a benefit of group homes.27
While the court will understandably be mindful of the extent to which the plaintiff is receiving and will continue to receive care through government funding, counsel should ensure that this does not automatically result in a negative contingency. Given steady increases in the cost of long-term care,28 as well as the possibility of reductions in healthcare funding,29 a positive contingency may actually be warranted. Plaintiffs’ counsel may wish to ask an expert to provide evidence on funding gaps and trends.
Counsel must be cognisant of the fact that settlements may need to be approved by the Public Guardian and Trustee (PGT), depending on the client’s personal circumstances. The PGT is mandated by its enabling statute to protect the legal and financial interests of children under age 19, and the legal, financial, personal, and health care interests of adults who require assistance in their decision-making.30 Letters to the PGT should provide a comprehensive overview of the experts’ opinions, and ought to make direct connections between the settlement amount, the expert evidence, and the best interests of the client, as determined on an objective basis and according to the client’s wishes.
