The Auton Case
See also: Advocacy: Writings of Michelle Dawson Evaluating Interventions Applied Behavior Analysis (Lovaas)
The Supreme Court of Canada recently decided that the judicial system has no power to order medically necessary autism treatment. Provinces across the country chronically underfund autism treatment. Most do not recognize autism as a medical issue. Many do not acknowledge that effective, science based treatment for autism is a reality. Without Federal Legislation to enforce investment in autism treatment and research, Provincial Governments will continue to underfund services for autism.
Under the current system of often ineffective, inappropriate, and inaccessible treatments and supports, the average lifetime cost per person with an autism condition is estimated by ASC to be at least $2 million.
We know that autistics who believe we have integrity and dignity have been ostracized. We have been demeaned, banished, and segregated by the Canadian "autism community" -- by those claiming to represent us. Our requests that we be treated as equals have been rejected as outrageous. But in Auton, a case involving crucial decisions about the future of autistics in Canada, the "autism community" was forced to watch while an autistic was treated as fully human, and as an equal. This had not happened to this community before, not when anything important was at stake.
While increasingly accepted, Applied Behavioural Analysis (ABA) or Intensive Behavioural Intervention (IBI) therapy is not uncontroversial. Objections range from its reliance in its early years on crude and arguably painful stimuli, to its goal of changing the child's mind and personality. Indeed one of the interveners in this appeal, herself an autistic person, argues against the therapy.
It seems sadly ironic that those fighting so hard for the welfare of people with autism would oppose the participation of an autistic woman in this process. Kudos to Michelle for standing up for her right to be heard.
(T)he only approach advocated in these proceedings to deal with autism is to... measure the progress and achievement of an autistic person by the standard of to what extent the autistic resembles a non-autistic; .
Implicit in these proceedings is the notion that autistics are inhuman, and must be therefore made human. It is only then that their rights will have been respected.
LEAF and DAWN will argue that it is always cheaper to discriminate, but that government's budgets cannot be balanced on the backs of the most disadvantaged in society.
A mother of a child with Autism Spectrum Disorder (ASD) applied to the Supreme Court of BC for certification of a Class Action Proceeding on behalf of her son, other children with ASD and their families who had requested funding for Lovaas-type therapy.
In a unanimous decision written by Chief Justice Beverley McLachlin, the court ruled against a group of British Columbia parents who sued on behalf of their children in an attempt to force the province to pay for the treatment.
In the event that the constitutional challenge has not yet been determined, the court has exercised its discretion in favour of the patient and ordered continued treatment until the case is heard.
As noted, the Supreme Court of Canada has made stigma or stereotyping a key concept in its approach to discrimination law. This reinforces the idea that discrimination is social in nature.
It never seemed to dawn on them that the Auton case is... the earliest trickle through the floodgates. Its message is clear: the squeaky wheel gets the grease. It's only a matter of time before others start to squeak up for innumerable other illnesses.
The provinces don't want the courts to bully in on their right to make health care decisions, and they certainly don't want to be forced to pay out what could be billions of dollars a year to treat autism.
The July 2000 BC Supreme Court decision is the strongest precedent to date in favor of Lovaas-type Intensive Behavioral Autism Treatment. The court has declared that EIBI or ABA is a ":medically necessary" service and must be funded by the government.
Counsel for the intervener FEAT of Ontario, speaking in support of the Respondents, claimed that without Lovaas-type early intensive behaviour interventions, autistics will be less than half living.
It was clear from the questions that they posed throughout the day that there is division among them regarding the key elements of the case... it is unlikely that a decision will be made until the fall or later.
The applications judge granted a declaration that the Appellant had violated the infant Respondents' rights by failing to provide them with effective treatment for autism in the form of early intensive behavioural intervention.
The problem hinged on differing views of the effectiveness of the treatment. Many parents of autistic children say the program, developed by Dr. Ivar Lovaas at the University of California, produces dramatic results if provided early to autistic kids. The problem is it is offered one-on-one by a behavioural specialist and can cost around $40,000 to $60,000 a year, per child. British Columbia pays for some treatments for autism but they argued that this treatment was unproven and not medically necessary.
The province did not violate the children's equality rights under the Charter because its health coverage plan is "a partial health plan and its purpose is not to meet all medical needs," according to Chief Justice Beverly McLachlin, who wrote the judgment. "The Canada Health Act and the relevant British Columbia legislation do not promise that any Canadian will receive funding for all medically required treatment," said the judgment.
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