[Birgitta von Krosigk]

What is New in the B.C. Court of Appeal Autism Treatment Ruling?

The B.C. Court of Appeal upheld the earlier court order directing the provincial government to fund early intensive behavioural therapy for children with autism or autism spectrum disorder. This treatment is medically necessary care and the only known form of effective treatment for the condition.

Age clarification

The original court order directing the government to fund autism treatment had no age limit. However, as the Judge had discussed the importance of early intervention and a window of opportunity for treatment, the government had interpreted the decision to mean that it was sufficient to fund treatment for children younger than 6 years old. The Court of Appeal has now said that treatment does not cease being effective "at the crisp attainment of school age". Rather than support a specific age-cut off for all autistic children, the Court has directed that disputes concerning the duration of treatment should be decided either through a dispute resolution mechanism or by the Supreme Court of B.C.

The Court of Appeal also said that the four children named in the proceedings are each entitled to government funded treatment as long as the treatment continues to be useful to them as determined by their family physician supported by a paediatrician or psychologist. At the time of the Court of Appeal ruling (October 2002) the children were aged between 8 and 14 years old. The government also has to reimburse their treatment costs since July 2000, the date of the initial Charter breach ruling.

Form and intensity of treatment

The Court of Appeal affirmed the original order directing the government to fund early intensive behavioural therapy and noted that Lovaas Autism Treatment – or Lovaas-style Autism Treatment – is a form of early intensive behavioural therapy. It directed the government to fund Lovaas Treatment for the four children named in the proceedings since this was the treatment they had been receiving and which had been beneficial to them.

Should the government fail to fund genuine and intensive treatment, parents may apply to the Supreme Court of British Columbia for enforcement of the order. They may also apply to the Court for an order in the nature of mandamus, directed against an identified public officer by name or by office, or both, to perform the duty. Should there then be any further difficulties, the parents may apply for an order of contempt of court against that individual public officer.

Birgitta

Birgitta von Krosigk
Barrister & Solicitor

[Author]

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