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Government’s Failure to Fund Autism Treatments Not Discriminatory
November 23, 2004

The much anticipated Supreme Court of Canada decision in Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, was released on November 18, 2004.

In a ruling overturning the two lower Court decisions, the Supreme Court of Canada concluded that the failure to fund certain treatments for pre-school aged children with autism did not violate their constitutional equality rights.

Background

Autism is a neuro-behavioural syndrome caused by a dysfunction of the central nervous system that can impair social interaction and communication.

In the late 1990′s, several parents of children who were diagnosed with autism or autism spectrum disorder (“ASD”) took legal action against the BC Government for failing to fund a treatment for their children known as Lovaas Autism Treatment.

The evidence at trial established that the Lovaas treatment was an effective, yet expensive, treatment for autism. The treatment involves intensive one-on-one behavioural therapy administered for up to 40 hours per week. The cost of such treatment is between $45,000 and $60,000 per year, per child.

As recognized by the Supreme Court of Canada, the treatment, while increasingly accepted is not without controversy. The objections include reliance on “crude and arguably painful stimuli” and its goal of changing the child’s mind and personality.

The families initiated the action after the Provincial Government denied them funding for Lovaas treatment. In the action against the Government, the families claimed relief pursuant to the Charter. Specifically, the families sought a declaration that the Government’s denial of funding for Lovaas treatment violated Sections 7 and 15 of the Charter. In reply, the Government argued that its policy decision not to fund the controversial Lovaas treatment was not unconstitutional.

BC Supreme Court

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.

She concluded that the Government had violated the Section 15 equality rights of the infant petitioners. In reaching this conclusion, Madam Justice Allan determined that applied behavioural therapy is a “medically necessary” service for autistic children. She ruled that in denying a “medically necessary” service to autistic children, while providing “medically necessary” services to non-autistic children and mentally disabled adults, the Government discriminated against autistic children.

By way of remedy, Madam Justice Allan granted a declaration that the failure to fund the treatment breached Section 15 of the Charter She directed that the Government fund early intensive behavioural therapy for children with autism. She further awarded to each of the adult petitioners $20,000 for what she termed “symbolic damages” for the Province’s breach of Charter rights.

BC Court of Appeal

At the Court of Appeal, Madam Justice Saunders, 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 Lovaas Autism Treatment, while expensive, did result in significant gains in the development of children with autism.

However, the Court rejected the petitioners’ argument that the obligation to provide early intensive behaviour therapy required the Government to fund Lovaas style therapy. The Court stated that it was within the purview of Government to determine the particular type of treatment model. However, the Court concluded that the treatment form that was to be put in place and funded by the Government must be “intensive” and have “sufficient one-on-one repetitive therapy”.

The Court also rejected the parents’ argument that the lower court ruling required the Government to continue to provide and fund this type of therapy to school-age children, and not just pre-school children. The Court 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-age children.

Finally, the Court upheld the symbolic remedy of $20,000 for each of the four adult petitioners and further, ordered that the Government should continue to fund treatment for the children of the petitioners – who, by the time of ruling, were school aged. 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, with the Government having the right to challenge the opinion of these medical practitioners.

Supreme Court of Canada

In written reasons released on November 18, 2004, Chief Justice Beverley McLachlin, writing on behalf of a unanimous seven member Court, held that the Government’s appeal should be allowed. In framing the issue to be decided by the Court, the Chief Justice prefaced the ruling by commenting:

    One sympathizes with the petitioners, and with the decisions below ordering the public health system to pay for their therapy. However, the issue before us is not what the public health system should provide, which is a matter for parliament and the legislature. The issue is rather whether the BC Government’s failure to fund the services under the health plan amounted to an unequal and discriminatory denial of benefits under that plan, contrary to Section15 of the Charter.

The Court went on to state that “despite their forceful argument, the petitioners failed to establish that the denial of benefits violated the Charter.

Section 15(1) Analysis

The first question addressed by the Court was whether the Government’s conduct infringed the petitioners’ equality rights under Section15 of the Charter. The Court concluded that this case engaged the guarantee under Section15 of “equal benefit of the law without discrimination … based on mental … disability”. Thus, a person claiming a violation of Section 15(1) of the Charter must establish: (1)differential treatment under the law; (2)on the basis of an enumerated or analogous ground; (3)which constitutes discrimination. The specific role of Section15(1) in achieving its equality objective is to ensure that when the Government chooses to enact benefits or burdens, they do so on a non-discriminatory basis. This confines Section15(1) claims to benefits and burdens imposed by law.

The Court then turned to the question of whether the claim in this case was for a benefit provided by law. In reviewing the legislative scheme, the Court held that the legislation did not promise any Canadian would receive funding for all medically required treatment. Instead, all that is conferred in the legislative scheme is “core funding” for services provided by medical practitioners, with funding for non-core services left to the Province’s discretion. Therefore, the benefit claimed in this case – funding for all medically required services – was not provided for by law. More specifically, the law did not provide funding for Lovaas therapy for autistic children.

At the time of trial, British Columbia had not designated providers of Lovaas therapy as “health care practitioners” whose services could be funded under the legislation. Since the Government had not designated the therapists as “health care practitioners”, the administrative body charged with administration of the Provincial legislation had no power to order funding for the therapy.

With respect to the Court’s conclusion that the benefit claimed was not a benefit provided by law, Madam Justice McLachlin commented:

    I conclude that the benefit claimed, no
    matter how it is viewed, is not a benefit provided by law. This is sufficient to end the inquiry. However, since this is the first case of this type to reach this Court, it is appropriate to consider whether the petitioners would have succeeded had they established that [Lovaas] therapy was a benefit provided by law, by being designated as a non-core benefit.

In answering the question of whether the petitioners had been denied a benefit granted to a comparator group on an enumerated or analogous ground, the Court held that a finding of discrimination could not be sustained.

In this case, when the relevant criteria were applied, the appropriate comparator group for the petitioners was a non-disabled person, or a person suffering from a disability other than a mental disability, who seeks or receives funding for a non-core therapy that is important for his or her present and future health, is emergent and has only recently been recognized as medically required. The Court concluded that the claimant or the claimant group in this case was not denied a benefit made available to that comparator group.

It is interesting to note the Court’s comments with respect to novel therapy treatments:

    People receiving well-established non-core therapies are not in the same position as people claiming relatively new non-core benefits. Funding may be legitimately denied or delayed because of uncertainty about a program and administrative difficulties related to its recognition and implementation. This has nothing to do with the alleged ground of discrimination. It follows that comparison with those receiving established therapies is inapt.

The Court concluded that there was no evidence suggesting that the Government’s approach to the therapy was different than its approach to other comparable, novel therapies for non-disabled persons or persons with a different type of disability. In the absence of such evidence, a finding of discrimination could not be sustained.

Cross Appeal – Section 7 of the Charter

In their cross appeal, the petitioners raised Section 7 of the Charter, which provides that everyone has the right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The Court stated that Section7 was raised only “fleetingly” in the submissions before the Supreme Court of Canada. The petitioners had not clearly identified the principle of fundamental justice which they allege to have been breached by the denial of funding for Lovaas or other therapy.

Therefore, the Court held that the limited submissions before them did not permit them to conclude that the Government’s conduct in this case infringed the petitioner’s Section7 Charter rights.

Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, November 19, 2004