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BREAKING NEWS

POSTED AT 11:19 AM EDT Thursday, May. 15, 2003

Supreme Court to hear autism case

By KIRK MAKIN

Globe and Mail Update

The Supreme Court of Canada has agreed to hear a landmark case involving the right of judges to direct how health-care money should be spent.

In the decision under appeal, the B.C. Court of Appeal ordered the province to provide intensive treatment for autistic children.

Siding with four sets of parents who had been denied an expensive therapy, a 2-1 court majority said they had no choice but to forcibly reorder government health-care priorities.

The B.C. judges made it clear that when constitutional rights and the welfare of children are at stake, governments lose their monopoly over budgetary decision-making.

The B.C. ruling infuriated critics of judicial activism and gave renewed hope to those who believe activist judges can prevent penny-pinching legislators from making minorities absorb the brunt of their budget-cutting.

Not content simply to order intensive therapy costing between $40,000 and $60,000 a year, the B.C. appeal judges awarded the parents 'symbolic' damages of $20,000 each.

They also stressed that they are prepared to enforce their order if the province fails to follow through with proper therapy.

"This case is obviously of great importance to the parents and their children," constitutional lawyer David Stratas said Thursday. "But governments who face competing demands from many groups, are looking closely at it too. This is about a right to health care. It is a significant step forward."

Mr. Stratas said the Supreme Court's ruling will provide an important signal about its current thoughts on how fully the courts should throw themselves into modifying government priorities that offend the Charter.

"Is it appropriate for courts in effect to order government to supply funding in order to eliminate rights violations?" he said. "Or, is funding a central task of the legislature — and all courts can do is declare rights breach and leave it to the legislature to design an appropriate response?"

Mr. Stratas noted that the Supreme Court also granted leave to appeal last week to a Quebec case involving constitutional rights and access to health care.

"These decisions have the potential to have an impact on our state funded health care system," he said.

Autism is a neurobehavioural syndrome that affects 10 to 15 out of every 10,000 children. Symptoms, which include disordered thinking and erratic behaviour, typically appear when children are two or three years old.

Left untreated during a window of opportunity that lasts only a few years, most autistic children are doomed to a lifetime of social dysfunction and isolation. Many end up being institutionalized.

Funding of autism therapy varies from province to province, and gaps in treatment have spawned several class-action lawsuits. Many children with the diagnosis get little or no treatment because they are beyond the upper age range for treatment — usually about six — before they are selected.

David Corbett, a Toronto lawyer battling the Ontario government over autism in one suit said recently that he hopes the B.C. decision induces other provinces to do "the right thing" and stop putting money ahead of children's health.

"I think the court is saying that it is very difficult to draw the line on health-care services, but that leaving this service out was just plain wrong," Mr. Corbett said.

The B.C. court specified that the province must supply funds for Lovass Autism Treatment, an intensive and time-consuming technique that is considered the most effective therapy available.

"Having created a universal medicare system, the government is prohibited from conferring those benefits in a discriminatory manner," the court said.

The ruling is rooted in equality guarantees enshrined in the Charter of Rights as well as the inherent duty of courts to look after the interests of children. The court said that the province failed to justify treating autistic children as if they were 'less worthy' of medical assistance than non-autistic children. "It is to say that the community is less interested in their plight than the plight of other children needing medical care and adults needing mental-health therapy," Madam Justice Mary Saunders and Mr. Justice John Hall said.

While they expressed sympathy with government arguments that the courts ought not to be dictating health-care priorities, the judges said that the consequences of not treating autism in a timely manner are unacceptably grave.