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Top court: health care not a right
Governments applaud as autism precedent rejected

Janice Tibbetts
CanWest News Service


Saturday, November 20, 2004


OTTAWA - The Supreme Court of Canada refused to elevate health funding
to a constitutional right in a ruling that was a stunning setback for
families of autistic children asking the state to pay for expensive
treatment.

The unanimous and unequivocal decision overturned two British Columbia
court rulings that found the provincial government violated the Charter
of Rights equality guarantees for the disabled.

Yesterday's decision will have an impact across Canada, hindering
lawsuits in which parents in several provinces are seeking court orders
forcing governments to pay for early intervention therapy that costs up
to $60,000 per year per child.

The case was considered one of the most significant social policy issues
to reach the high court in years. All 10 provinces and Ottawa intervened
to warn the judges that governments would need unlimited budgets if
health care were to become all things to all people.

Constitutional expert Jamie Cameron said that it would have been
difficult for the court to carve out an exception for autistic children
without exposing the stretched health system to a flood of lawsuits on
behalf of people seeking coverage for other disabilities.

"The court has shown appropriate institutional caution here in resisting
the invitation to constitutionalize the health-care system," said Mr.
Cameron, a law professor at York University in Toronto. "Once the
precedent is created, it would encourage other claims."

Parents of autistic children are devastated and outraged. At the Supreme
Court, Ottawa mother Debbie Barbesin, her eyes filled with tears,
wondered how she will continue to pay therapy bills for her
eight-year-old son, Dylan.

David Sherriff-Scott, an Ottawa lawyer whose autistic son turned 11
yesterday, said the absence of state funding "dooms these children to a
life of being marginalized."

In Langley, B.C., Sabrina Freeman, mother of 16-year-old Miki, denounced
the ruling as "total unadulterated garbage" and chastised the judges for
caving in to political pressure. "If my child is not entitled to be part
of the health care system, then the government is not entitled to my
taxes," she said.

The 7-0 ruling was the culmination of a six-year legal battle begun by
four B.C. families after the government refused to fund what is known as
Lovaas autism treatment, saying it was "novel, controversial,
experimental and not a medically necessary service."

The treatment, which has shown dramatic results in some cases, was
pioneered in the United States by psychologist Ivar Lovaas in the late
1980s. Autistic children undergo 20 to 40 hours a week of intensive
one-on-one therapy that is most effective when a child is young.

Some provinces, including Alberta, Ontario and Prince Edward Island,
cover the therapy costs to some degree, but many expenses are left to
parents.

The families say government refusal to pay for the treatment is
short-sighted, given that about 90% of autistic children are eventually
institutionalized at an enormous cost to taxpayers.

The Supreme Court concluded that provinces are not discriminating
against autistic children by denying funding, because many other
services are also not covered if they are not provided by a medical
doctor.

Beverley McLachlin, the Chief Justice, said she sympathized with the
families, but "the issue before us is not what the public health system
should provide, which is a matter for Parliament and the legislature."

The court's decision is in keeping with its pattern of refusing to
dictate how governments spend their money. It is estimated that about
70% of health services are publicly funded. Drug costs and many
treatments not delivered by doctors are generally excluded.

"The legislative scheme does not promise that any Canadian will receive
funding for all medically required treatment," wrote Chief Justice
McLachlin. "All that is conferred is core funding for services provided
by medical practitioners, with funding for non-core services left to the
province's discretion."

The court concluded there was no evidence the government put autistic
children and their families "on the back burner" when compared with the
non-disabled or other people with disabilities seeking emerging
therapies.

British Columbia contends it would cost $250-million of the province's
$9-billion health budget to cover the treatment for all autistic
children. The province currently covers one-third of the costs until a
child turns six.

Ujjal Dosanjh, the federal Health Minister, was a member of British
Columbia's NDP government when it refused to foot the entire bill. He
said it is important that provinces and territories be permitted to
allocate scarce health care dollars as they see fit.

"I'm sure the provinces and territories will take a look at what they're
doing and whether they do it the best they can, but those are decisions
that are best left to those that deliver health care on the ground," he
said.

Geoff Plant, B.C.'s Attorney-General, praised the decision for providing
"the clarification that we need on this important issue."

In Alberta, the province has been funding intensive therapy for autistic
children since 1999. Children's Services Minister Iris Evansaid
yesterday the court ruling won't affect government support for autism
treatment.

Saskatchewan, which provides a broad array of services to people with
cognitive disabilities, will continue to try to provide the services it
can, John Nilson, the Health Minister, told reporters.

"What the court said is that the provinces have the right to set out the
areas of treatment and people will have to work within those
resources,'' he said.

C National Post 2004








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