Healthy thinking on autism from court

The GazetteNovember 23, 2004

Like many Supreme Court pronouncements, the decision rendered last week on the funding of therapy for autistic children has roots in basic principles of policy and law. Far from being a judgment on the value of the therapy, the 7-0 decision was an affirmation that parliaments, whether federal or provincial, decide on policies in general and health-care services in particular.

In this respect the ruling – denying the claim by four B.C. families that the equality guarantees of the Charter of Rights entitled their children to expensive treatment – is sound. Rightly or wrongly, our politicians have restricted public health-care support mostly to certain services dispensed by physicians and in hospitals. That is how health care in Canada has evolved. As Chief Justice Beverley McLachlin said in her ruling, “The scheme is, by its very terms, a partial health plan and its purpose is not to meet all medical needs.”

There are variations among provinces. Some require individuals to pay premiums, others do not. Some cover optometry, physiotherapy and drugs for seniors, others do not. These are matters on which elected representatives vote in the legislatures.

In theory, though obviously not in practice, politicians could repeal the Canada Health Act and all attendant provincial legislation and end universal health care as we know it. They could choose to provide, say, free college tuition with the money they save. As long as the available services are dispensed in accordance with the Charter, the courts can have nothing definitive to add to any such debate.

All of which is easy to say from a comfortable position on a judicial bench or in an editorial boardroom. What about the parents of autistic children who are driven to ruin by the cost of intensive therapy?The wise and humane thing would be for governments to pay for it. The Lovaas system, involving 20 to 40 hours a week of one-on-one behaviour modification, has yielded dramatic results. For an autistic child, it can make the difference between a meaningful, or wasted, life. It can also avoid the future cost – potentially much greater – of institutionalization. This is presumably one reason why Alberta, that hotbed of socialized medicine, underwrites the treatment, as does Ontario.

British Columbia pays only one-third of the bill, which can run to $60,000 a year. (Curiously enough, it was an NDP government that originally made the policy decision to deny full funding.) Lobby groups are right to chastise the B.C. provincial government for not getting with the program.

But the Supreme Court is also right in disavowing any decision-making power in this matter. If it had declared therapy for autistic children to be a right, it would have invited a tsunami of similar claims by any number of disadvantaged persons for fully-funded therapy of many types.

Instead the court stressed the central role played by elected representatives, and thereby the people who elect them, in matters of health-care policy. This show of clear thinking from our top bench is a very healthy sign.

© The Gazette (Montreal) 2004

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