Auton V B.C. Facts: Petitioner

Auton v B.C.

Facts: Petitioner children with autism, through the ad litem, brought an action against the province of British Columbia, alleging that its failure to fund applied behavior therapy (ABA/IBI) for autism violated section 15(1) of the Canadian Charter of Rights and Freedoms. While the government did fund programs for autistic children, financial constraints and the fact that the therapy was not universally acknowledged to be helpful prevented them from funding ABA/IBI therapy for all children with autism. The trial court found that the failure to fund ABA/IBI therapy violated the children's rights. The Court of Appeal upheld the trial court's decision. The government appealed the Court of Appeal's decision. The Court allowed the appeal and denied the cross-appeal.

Issues: Does the government's failure to provide ABA/IBI therapy for all children with autism violate the Canadian Charter of Rights and Freedoms § 7 or 15(1)? When, if ever, is a province's public health plan under the Canada Health Act, R.S.C. 1985, c. C-6, required to provide treatment outside of those core services administered by doctors and hospitals?

Reasoning: The Canadian Charter of Rights and Freedoms § 15(1) provides that "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability" (Canadian Charter of Rights and Freedoms § 15(1)). A person claiming a violation of the Canadian Charter of Rights and Freedoms § 15(1) must establish four things: (1) differential treatment under the law, (2) on the basis of an enumerated or analogous ground; (3) which constitutes discrimination (Auton v. B.C. (2004), 3 S.C.R. 657).

Analysis: The Court determined that the government did not violate equality rights. The government is not required to provide funding for all medically required treatment. Instead, the law simply requires the government to provide funding for core services. ABA/IBI therapy for autistic children did not fall under the realm of core services. First, British Columbia had not designated providers of ABA/IBI therapy as health care practitioners whose services could be funded under the plan. Therefore, not only was B.C. not required to provide that funding, but its administrative body actually lacked the power to order such funding. In other words, the petitioners claim was not for a benefit provided for by law.

Furthermore, the legislative scheme was not discriminatory for failing to provide funding for ABA/IBI therapy to autistic children while providing funding for non-core services to members of other groups. The legislative scheme is a partial health plan, and it is not intended to meet all medical needs. The exclusion of non-core services is not enough to establish discrimination, since this failure is part of the legislative scheme. Moreover, there is no evidence that autistic children were targeted because of their disability. There was no example of a non-disabled group having access to the same type of emergent therapy that was being denied to the autistic children. "A legislative choice not to accord a particular benefit absent demonstration of discriminatory purpose, policy or effect does not offend this principle [of non-discrimination] and does not give rise to s. 15(1) review" (Auton v. B.C. (2004), 3 S.C.R. 657).

ABA/IBI therapy is the type of emerging therapy that should be considered a non-core service. It is an intensive therapy that has proven to have significant results in some cases, but is not considered successful in all cases. Furthermore, there are ethical concerns about how ABA/IBI therapy is performed, since its goal is to change how the child interacts with the world and its methods can be somewhat cruel.

Conclusion: The Court allowed the Province of British Columbia's appeal. The Court dismissed the cross-appeal by the petitioners. The Court determined that the definitions of benefits and health care practitioner found in the Medicare Protection Act, R.S.B.C. 1996, c.286 § 1 and the Medical and Health Care Services Regulation, B.C. Reg. 426/97 § 17-29 do not infringe the Canadian Charter of Rights and Freedoms § 7 or 15(1) by failing to include ABA/IBI services for autistic children. The Court did not address the issue of when, if ever, a province's public health plan under the Canada Health Act, R.S.C. 1985, c. C-6, is required to provide treatment outside of those core services administered by doctors and hospitals because resolving that issue was not necessary for resolution of the dispute before the Court.

Minority: There was no minority decision.

Discussion: What is interesting about this case is that, for several years the government had been providing the type of ABA/IBI therapy that petitioners were seeking, though not to the extent that petitioners were seeking the treatment. They ceased providing the funding for the treatment, and their reasons for doing so were partially financial, but partially due to ethical concerns about the requirements of ABA/IBI therapy. First, ABA/IBI therapy is only successful in treating some children, so that children previously diagnosed with autism lose that diagnosis. Second, and perhaps more importantly, not all people with autism believe that ABA/IBI therapy is desirable or appropriate for children with autism. Autism activist Michelle Dawson is among those who believe that ABA/IBI therapy is not appropriate for autistic children. She points out: that the science behind ABA/IBI therapy has not been proven in random clinical trials; that autism has erroneously been compared to fatal diseases like cancer when autism does not threaten life; that the assumption an autism diagnosis means that a child will not be able to be successful and will live in isolation is false (Dawson, 2004). Therefore, she has significant concerns that treating autistic children to deprive them of the very traits that make them autistic in order that they might better conform to the "normal" world might be discriminatory in and of itself.