The BC Supreme Court has issued a decision requiring the provincialgovernment to fund early intensive behavioural therapy. For a complete summary of this important case, click on the link below.
In Auton (Guardian ad litem of) v. British Columbia (Attorney General), the British Columbia Court of Appeal considered the rights of children with autism or autism spectrum disorder (“ASD”) to receive state funded health services. The petitioners sought and were refused financial assistance from the Provincial Crown for the provision of Lovaas Autism Treatment (“LAT”). LAT is one-on-one behavioural therapy requiring a substantial number of hours per week. The cost of such treatment is between $45,000 and $60,000 per year per child.
At the trial level, Madam Justice Allan of the British Columbia Supreme Court heard the matter in two stages: the first dealing with the breach of Charter issues under sections 7 and 15, and the second dealing with remedy in the event these Charter provisions were breached. With respect to the breach of the Charter, it was held that the Provincial Crown had violated the section 15 equality rights of the infant petitioners. By way of remedy, Madame Justice Allan ordered that the Provincial Crown fund early intensive behavioural therapy for children with autism or ASD. She further awarded to each of the adult petitioners $20,000.00 for what was termed “symbolic damages” for the Province’s breach of Charter rights.
At the Court of Appeal, Saunders J.A., writing for the majority, accepted Madam Justice Allan’s findings that without successful treatment, autism or ASD will almost always result in a life of “physical, emotional, social and intellectual isolation and eventual institutionalization.” The Court of Appeal also accepted that LAT, while expensive, did result in significant gains in the development of the children with autism.
The Court of Appeal, however, rejected the argument that the obligation to provide early intensive behaviour therapy required the government to fund Lovaas style therapy. In this regard the Court stated that it was within the purview of the government to determine the particular type of treatment model. The Court of Appeal noted, however, that the treatment form that was to be put in place and funded by the government had to be “intensive” and have “sufficient one-on-one repetitive therapy.”
With respect to the argument that the order of the Chambers judge obliged the Government to continue to provide and fund this type of therapy to school age children and not just pre-school children, the Court of Appeal ruled that the order of the BC Supreme Court was only directed to pre-school children. The Court of Appeal accepted that the evidence revealed a window of opportunity for infants suffering from autism or ASD, but that the evidence did not extend to cover school-aged children.
As it stands at this point in time, the matter of whether or not the government is obliged to provide and fund early intensive behaviour therapy for school age children has not yet been determined. There was, however, some indication from the Court that this type of therapy should be considered, unless some other form of effective therapy is in place.
On the matter of remedy, the Court of Appeal upheld the symbolic remedy of $20,000.00 for each of the four petitioners and further ordered that the government should continue to fund treatment for the children of the petitioners – who are now of school age. This order was made subject to the petitioners establishing the “requisite usefulness” of such treatment by a written opinion from the family’s physician and by a qualified paediatrician or psychologist. The Crown would have the right to challenge the opinion of these medical practitioners.
The government is seeking leave to appeal the Court of Appeal decision in Auton to the Supreme Court of Canada.
(Click here for full text of the judgment)