Direct Funding, Individual Accountabilty

By Brian Cruikshank

In April 1994, British Columbia initiated a pilot project to give funds directly to people with physical disabilities to obtain their own home support or attendant services. The one-year pilot project will be evaluated in April 1995.

The 35 to 40 participants in this project are over the age of 19, are current users of home support/attendant services, use a relatively high level of assistance (at least three hours per day), and have demonstrated an ability to manage their service or have other related skills.

Another criterion is that direct funding does not cost any more than the current service, and each participant must account for all the monies by submitting monthly financial reports to the Ministry of Health. The participant is the legal employer and therefore must adhere to the employment laws of the province of BC Participants are required to sign a contract with the government that, among other things, describes the responsibilities of each party to the contract.

Control carries with it additional responsibilities. A significant aspect of direct funding is that it acknowledges that people with disabilities are capable of entering into contracts that recognize their capacity for assuming the risks associated with managing their own services. For too long, funders and service providers have raised the spectre of liability to deny people with disabilities increased control over their disability-related services because of the paternalistic assumption that liability cannot be assumed by the person with a disability.

The insertion into this contract of a "liability waiver" or a provision which limits or possibly eliminates the liability of the government of BC for any injury or harm caused by an act of the employee of the participant is important. Buried in a six-page contract, this seemingly innocuous provision is more significant than its place in that contract would indicate.

It is the law of this country that competent and knowledgable adults acting under no compulsion and with an apparent understanding of the risks involved can enter into contractual arrangements that waive or limit any possible liability. This is usually done in the context of a potentially dangerous activity such as skiing or racing. For people with disabilities who depend on others for their personal assistance, the possibility of harm resulting from an act or omission by an attendant is always present, and the employer can be held vicariously liable. Under the "old" system, employers were insured against this possibility, but they still used the liability issue to exercise too much control over the people to whom they were providing service.

The spectre of liability kept people with disabilities subservient to this system of domination wielded by home support agencies and government bureaucrats. Although direct funding removes home support agencies from the equation, it is only because of the use of liability waivers that people with disabilities can assume responsibility from their government funders and thereby take control of their own attendant services.

(Brian Cruikshank, LL.B., is a government liaison in Vancouver, BC. For information about direct funding in BC, call Sally Hamilton, (604) 952-1086, or Maedythe Martin, (604) 952-1134, at the provincial Ministry of Health.)