Globe and Mail Coverage of Today's Announcement

Ontario court rejects autism treatment in schools
KIRK MAKIN

Globe and Mail Update

Families with autistic children were dealt a severe blow Friday morning when the Ontario Court of Appeal overturned a decision ordering special autism treatment within the school system.

The Court disagreed with virtually every major finding in a 2005 lower-court ruling finding that the province had discriminated against children over the age of six by not providing the same costly ABA/IBI treatment available for children under six.

It stressed that governments are better situated to assess the merits and demerits of health-care policy and how far it should go in extending programs aimed at ameliorating disabling conditions.

“In our view, the policy choices made by the government when it established and developed the (program) fell within the range of reasonable alternatives to provide an effective program across the province that balanced the needs of all autistic children,” the court said.

“The age limit fits squarely within the framework of government action that mediates among competing interests and, accordingly, warrants deference by this court.”

In particular, the Court of Appeal ruled that the children of the 29 plaintiffs in the lawsuit were not discriminated against based on their age, nor were they treated so differently than other disabled children so as to breach the constitutional guarantee of equality.

Scott Hutchison, a lawyer for the plaintiffs, said he will study the ruling closely before seeking leave to appeal to the Supreme Court of Canada. “That, ultimately, is where this case needs to be decided,” Mr. Hutchison said in an interview. “My clients are obviously very disappointed with the result of the case.”

Another lawyer for the plaintiffs, Mary Eberts, said that the Court of Appeal “totally obliterated” the findings of fact made by the trial judge in the case. “ She said that while the Court suggested that evidence was missing on many key points, that evidence was painstakingly assembled in the trial court and then simply ignored by the appeal judges.

“The law is a blunt instrument, and this is the law at its bluntest,” she said.

Ms. Eberts said that her clients were devastated by the ruling, expressing particular frustration over the court's misconceptions about autism therapy and their suggestion that parents of autistic children have the option of home-schooling them. The statement showed a great insensitivity and misunderstanding of the reality for people such as her clients, Ms. Eberts said.

“The decision really puts the ball back in the government's court,” she said, noting that Premier Dalton McGuinty explicitly promised before being elected that he would extend autism treatment to children over the age of six.

The judges said in a 3-0 decision that the intensive treatment is focused closely on children under five because it is a “window of opportunity” when they are considered most amenable to its benefits.

Children younger than six are in school and cannot undertake the 20 to 40 hours a week that the treatment entails, they added.

“In our view, this analysis fails to reflect the most critical benefit that flows from the age limit, namely, that it ensures that existing limited resources are distributed to the children during the ages in which they will most benefit from the program,” the court said.

“As the trial judge found and the experts agree, intervention should be provided ‘the earlier the better' in order to access the window of opportunity in young children with autism,” it said. “It was not adequately shown that the treatment can be delivered within the public school system because of the time and intensity it involves, nor was it proved that other treatments could not be effective.”

The plaintiffs are 29 groups of parents whose autistic children were denied autism treatment in the education system at the age of six. They argued that it was discriminatory to refuse treatment on the basis of their children's age.

The province counterattacked with arguments that it has been more generous than most jurisdictions in its funding program. It also maintained that the benefits of the treatment – known as ABA/IBI – are far from clear when it comes to older children.

Lawyers for the province also expressed fears that if the ruling were allowed to stand, it would jeopardize the ability of governments to set their own funding priorities.

In Friday's ruling, the court said that, given the limited capacity of the program, “eliminating the age limit in (the program) would increase the size of the waiting list for services, increase the typical age of new children entering the program and result in available resources being diverted to older children, thus reducing the opportunity for children under age six to receive intensive behavioural intervention at a time when it would be most effective.

“Had the IEIP not had an age limit of six years, it is likely that those respondents would still be on the waiting lists for services through the IEIP.”

The court also ruled that damages were not available against the province because it did not engage in unconstitutional acts of bad faith, abuse of power, negligence or willful blindness.

In her ruling last year, Ontario Superior Court Judge Frances Kiteley said that Ontario had violated the constitutional rights and “human dignity” of autistic schoolchildren by denying them treatment they desperately need in order to cope and thrive. She found discrimination based on age and disability.

“I find that the age cutoff reflects and reinforces the stereotype that children with autism over age 6 are virtually unredeemable,” Judge Kiteley said in her ruling. “To deny the plaintiff children the opportunity to have [treatment] after the age of 5 is to stereotype them, to prejudice them and to create a disadvantage for them.”

She awarded damages to the litigants that ran into the millions of dollars for past and future treatment. Going further, Judge Kiteley refused a request from the province for a grace period in which to repair its delivery of autism programs, saying it has had ample time to fix the problem.

The ruling has clear implications across the country, signalling that it may very well be destined for an airing in the Supreme Court of Canada.

In a 2004 ruling known as Auton, the Supreme Court declared that provinces have no obligation to provide ABA/IBI treatment under the health-care system. However, yesterday's case – known as Deskin-Wynberg – instead attacked the problem through the context of the education system.

In her exhaustive, 217-page decision, Judge Kiteley ruled that Ontario broke an explicit promise in the Education Act to meet the needs of disabled children, and then failed abysmally to evaluate its existing programs.

Without treatment, Judge Kiteley said, “the plaintiff children are deprived of the skills they need for full membership in the human community. That child's isolation and lack of skills mean that s/he cannot participate in society and cannot exercise the rights and freedoms to which all Canadians are entitled.

“The absence of ABA/IBI means that children with autism are excluded from the opportunity to access learning with the consequential deprivation of skills, the likelihood of isolation from society and the loss of the ability to exercise the rights and freedoms to which all Canadians are entitled.”

Judge Kiteley refused to let the Ministry of Education slough off its responsibility onto individual school boards. “The challenges faced by parents demonstrate that when left to individual school boards, parents are constantly reinventing the wheel,” she said.

Autism affects from two to six children in every 1,000. Behaviour can include a fixation on moving objects, self-injurious conduct, an inability to concentrate or process information and great difficulty engaging in normal social interaction.

The therapy of choice for autistic children is referred to interchangeably as ABA or IBI. Therapists break down language and mental and physical tasks into components that are repeated until an autistic child masters them.

While the most intensive form of the treatment requires considerable supervision and can cost up to $60,000 a year for each child, many authorities consider it the difference between a child's growing up to be relatively normal and one who is doomed to a highly dysfunctional life.

Proponents of the treatment argue that the special needs of autistic children are no less dramatic than those of blind or deaf children – who are well accommodated in the school system. Judge Kiteley agreed that there has been a stubborn refusal by education officials at all levels – apart from a few “open-minded” principals or teachers – to recognize ABA/IBI as an education tool rather than a medical therapy.

ABA/IBI treatment must begin early and continue as long as it is effective, Judge Kiteley said. “I find that a systematic ineligibility criterion of age 6 cannot be responsive to the needs of the child.”

She flatly disagreed with government claims that ABA/IBI is simply an experimental, emergent therapy – in direct contrast with the Supreme Court's Auton ruling.

She said it “undermines the integrity of the government” that it has adopted inconsistent positions on the usefulness of ABA/IBI, and that it has sunk millions of dollars into evaluating a therapy it continues to claim is ‘emergent.'