02.23.2011 06:08 PM

Legal question(s)

Which I’ve researched, to no avail:

1. Is sleepwalking considered a disability within the meaning of the provincial human rights codes?

2. If it is a disability, and a school prohibits a child from participating in the curriculum (eg. overnight field trips, etc.) because of it, is there an action that can be brought?

10 Comments

  1. Wannabeapiper says:

    Have there been any cases of sleep walkers creating crimes and if so what were the outcomes? Anyone exonerated based on sleepwalking as a disability? Maybe that type of research may help?

  2. Aurelia says:

    It’s not the human rights code you are looking for, Try Special Education rules + regs, and yes the Ministry has an appeal process for this if you lose at the board level.

    Basically, any medical condition that a Doctor will write a letter for must be accomodated, and they have to get other insurance if necessary. That said, only parents with lawyers and cojones and english skills can get their children’s rights enforced. So go for it! Just know that you may get faster results from your trustee, superintendant, etc….

    You may also want to mention that OCA certified camps all accept kids who sleepwalk, etc. No big deal. And if they do, why can’t the school camp?

    Good luck, happy to help if you need it.

    • Warren says:

      And you KNOW what this is about!

      • Cath says:

        Warren – I’d be going after them in violation of the very new inclusion laws enacted and in effect now. You’d have a case based on the teacher, board, or whoever’s not allowing the sleepwalker to attend an overnight camp on the exclusion of the child. Accommodations should be made for every child. If that means that a parent has to go to camp (because the staff/board don’t want to be liable if something were to happen to threaten the safety of the child.)

      • Aurelia says:

        http://www.edu.gov.on.ca/extra/eng/ppm/81.html

        This might be what you need….not sure? It refers to medical conditions and how they are supposed to be accommodated in schools. I found it here.http://www.edu.gov.on.ca/eng/general/elemsec/speced/speced.html

        The issue you have is how long it will take. I still think the OCA example might be your best argument. Sleep walking is just no big deal for them, so the school is being a pain for no reason.

        Alternative idea? Benadryl before bed….not that *I* have ever resorted to that with sleepless or ill children. Ahem.

  3. Mitch says:

    Warren,

    My lay understanding is that “sleepwalking” (at least the generic “walking around unaware” variety) is considered a symptom, rather than a disability per se. My review of the literature, references a multitude of “parasomnias” of which a subset would include the stereotypical sleepwalking. If you Google “Mark Mahowald and Carlos H. Schenck” you will get the gold standard in research on this, especially for kids. Because the practical risk of “sleepwalking” to the child and others can vary so widely (and the mechanisms to accomodate it accordingly) my lawyerly instincts suggest the ultimate issue is roughly akin to the ol’ BFOR standard in employment accomodation matters. If the child has a mild parasomnia involving occasional nighttime meanderings, then a liitle “accomodation” can go a long way. If the child has demonstrated more severe symptoms involving self harm or risk to others while in some parasomniatic(?) state, then the duty to accomodate / not discriminate may be more difficult to balance with liability and other practicalities. Tough question indeed when determining where to draw the line depends on an inherentlly unpredictable/unknowable state of consciousness, or lack thereof. Lots of good Stanford U. research online as well.

    • Warren says:

      Many thanks Mitch

      • smelter rat says:

        In Manitoba the issue of how a disability must be accomodated in the workplace seems to depend on the size of the workplace as opposed to what sort of disability it is. There’s a degree of reasonableness that’s open to interpretation, ie small businesses may not be held to the same standard as large ones, the theory being that a larger organization has more options in terms of accomodating the disability. Just about anything a person declares as a disability is fair game though. If a Dr.says a person is disabled because of sleepwalking, the effects of that disability would likely be upheld as a condition requiring accomodation. (I have no knowledge that this pariticular condition has ever been tested, my opinion is theoretical based on my experience in dealing with many HR issues). The person would need to describe for the employer what that accomodation would look like. It’s a little schizoid here.

  4. Omar Soliman says:

    Warren —

    Case you’re looking for is R v Parks. It’s a criminal law case, though…

    http://csc.lexum.umontreal.ca/en/1992/1992scr2-871/1992scr2-871.html

    Very briefly, the SCC ruled that sleepwalking is not a “disease of the mind” and generally gives rise to a defence of automatism. According to the court, “sleepwalking is not a neurological, psychiatric, or other illness,” but rather a sleep disorder from which “there is no medical treatment as such, apart from good health practices, especially as regards sleep.” The accused (sleepwalker, and murderer) was ACQUITTED and not subject to a disposition hearing or any form of treatment.

    “The majority of the Court held that…in the absence of a verdict of not criminally responsible on account of mental disorder, the courts did not have jurisdiction to make preventive orders.”

    Prohibiting a child from participating in the school curriculum on account of a history of sleepwalking sounds a lot like a “preventive order”. No justification for that…

    Not sure how this would mesh with provincial human rights legislation, though…

  5. Joe Henry says:

    Hi Warren

    I have spent about 10 years working on accommodation issues in education, mainly at the post-secondary level. One of the issues that comes up time again is the issue related to how the “education system” primary/secondary interprets accommodation versus the rest of the world.

    I would say based on what has been said here and from what you have provided, is that if risk of harm to self or others is aknowledged and understood, there would be a requirement to accommodate. They might try to hide behind “undue hardship”, but this would high bar to reach given it is public school, so they could pull money to supervise at night if needed. My feeling is often the schools over-react based on fear of either the disability or limited understanding of the options. I assume you have all the documentation, and you might want to have the doctor highlight some accommodation options as well.

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