Auton (Guardian ad litem of) v. British Columbia (Attorney General)
Encyclopedia
Auton v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, is a leading decision of the Supreme Court of Canada
wherein the Court ruled that government funding for non-core medically necessary treatments is not protected under section 15(1)
of the Canadian Charter of Rights and Freedoms
.
children brought an action against the British Columbia
government for failing to fund Applied Behavioral Therapy (ABA/IBI
), a form of treatment for autistic children. For several years previous to this case the government had been funding ABA/IBI treatment for autism, however, for financial reasons and due to the ethical controversy surrounding the methods of treatment, they ceased the funding.
Both at trial and in the British Columbia Court of Appeal
the Court found that the children's equality rights
(under section 15) were violated.
McLachlin
, writing for the Court, reiterated that the question here is whether the petitioners were denied a benefit in a discriminatory manner (see Law test). However, here, she claimed, the benefit of "funding for all medically required treatment" is not guaranteed by law, as it is neither promised in the Canada Health Act
nor any provincial health legislation. Rather, the Health Act only guarantees funding for core services of which ABA/IBI for autism is not one.
The Court further rejected the possibility that autistics were adversely discriminated against by the underinclusiveness of the legislation. Non-core medical services, McLachlin stated, are by their very nature underinclusive and cannot be considered discriminatory.
For a claim to succeed the petitioner must establish a comparator group from which differential treatment must be shown. In this case, the Court identified the comparator group as a person who is not suffering from a mental disability who wants funding for an emergent or experimental treatment. As the petitioners were unable to show that other seekers of experimental treatments are guaranteed funding, the Court rejected the claim on this basis as well.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
wherein the Court ruled that government funding for non-core medically necessary treatments is not protected under section 15(1)
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
.
Background
The parents of several autisticAutism
Autism is a disorder of neural development characterized by impaired social interaction and communication, and by restricted and repetitive behavior. These signs all begin before a child is three years old. Autism affects information processing in the brain by altering how nerve cells and their...
children brought an action against the British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
government for failing to fund Applied Behavioral Therapy (ABA/IBI
Applied Behavior Analysis
Applied behavior analysis is a science that involves using modern behavioral learning theory to modify behaviors. Behavior analysts reject the use of hypothetical constructs and focus on the observable relationship of behavior to the environment...
), a form of treatment for autistic children. For several years previous to this case the government had been funding ABA/IBI treatment for autism, however, for financial reasons and due to the ethical controversy surrounding the methods of treatment, they ceased the funding.
Both at trial and in the British Columbia Court of Appeal
British Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...
the Court found that the children's equality rights
Social equality
Social equality is a social state of affairs in which all people within a specific society or isolated group have the same status in a certain respect. At the very least, social equality includes equal rights under the law, such as security, voting rights, freedom of speech and assembly, and the...
(under section 15) were violated.
Ruling
The Court unanimously decided that the refusal to fund the ABA/IBI treatment did not violate the children's section 15 equality rights.McLachlin
Beverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
, writing for the Court, reiterated that the question here is whether the petitioners were denied a benefit in a discriminatory manner (see Law test). However, here, she claimed, the benefit of "funding for all medically required treatment" is not guaranteed by law, as it is neither promised in the Canada Health Act
Canada Health Act
The Canada Health Act is a piece of Canadian federal legislation, adopted in 1984, which specifies the conditions and criteria with which the provincial and territorial health insurance programs must conform in order to receive federal transfer payments under the Canada Health Transfer...
nor any provincial health legislation. Rather, the Health Act only guarantees funding for core services of which ABA/IBI for autism is not one.
The Court further rejected the possibility that autistics were adversely discriminated against by the underinclusiveness of the legislation. Non-core medical services, McLachlin stated, are by their very nature underinclusive and cannot be considered discriminatory.
For a claim to succeed the petitioner must establish a comparator group from which differential treatment must be shown. In this case, the Court identified the comparator group as a person who is not suffering from a mental disability who wants funding for an emergent or experimental treatment. As the petitioners were unable to show that other seekers of experimental treatments are guaranteed funding, the Court rejected the claim on this basis as well.
External links
- LEAF (intervener) Factum
- An Autistic at the Supreme Court - The Intervener's Factum by Michelle DawsonMichelle DawsonMichelle Dawson is an individual diagnosed with autism and an autism researcher. She has written a paper challenging the ethical and scientific foundations of Applied Behavior Analysis -based autism interventions. She also challenged the medical necessity of ABA for individuals with autism in...