Lieberman Award Section 15 of the Charter and the Allocation of Resources in Health Care: A Comment on Auton V. British Columbia
Bond, Claire, Health Law Journal
On 19 November 2004, the Supreme Court of Canada released its decision in Auton (Guardian ad litem of) v. British Columbia (Attorney General) (1). Contrary to both the lower courts, (2) the Court held that the refusal of the Province of British Columbia to fund a particular treatment for autistic children did not violate the right to equality under the Canadian Charter of Rights and Freedoms (Charter). (3) As McLachlin C.J.C. explained, the issue before the Court was "not what the public health system should provide, which is a matter for Parliament and the legislature. The issue [was] rather whether the B.C. Government's failure to fund these services under the health plan amounted to an unequal and discriminatory denial of benefits under that plan, contrary to s. 15 of the Charter." (4) The petitioners, however, failed to establish that the denial of benefits violated the Charter. (5) While the government must provide services authorized by law in a non-discriminatory manner, discrimination was not established because the benefit claimed, funding for all medically required services, was not provided by law, nor had the government excluded autistic children on the basis of disability. (6)
Determining which denials of a health care service violate equality rights and which do not is a difficult task. (7) Moreover, this issue will likely continue to be "contentious ... as the availability of a growing array of new and often expensive modalities challenges those responsible for allocating limited health care budgets in a fair and efficient manner." (8) The Supreme Court of Canada's decision in Auton sets an important legal precedent and framework for examining the issue of the equitable allocation of resources. This comment examines two components to this framework: "medical necessity" and the equality analysis under s. 15. After summarizing the facts and the two lower court decisions, I shall argue that the Supreme Court of Canada's analysis in Auton is consistent with prior case law, and though not groundbreaking, provides useful clarification and guidance.
The four infant petitioners suffer from autism, a neuro-behavioral syndrome caused by dysfunction of the central nervous system. (9) A 1987 study published by Dr. O. Ivar Lovaas suggested that Applied Behavioral Analysis (ABA) or Intensive Behavioral Invention (IBI) may help some autistic children between ages three and six. (10) This intensive therapy costs between $45,000 and $60,000 per year for a single child. (11) The petitioners and other individuals lobbied the Province of British Columbia to provide funding for the therapy. J2 At the time of trial, the government funded several programs for young autistic children and seemed to be moving toward funding some form of early intervention therapy. (13) Nevertheless, the government had not established funding for ABA/IBI therapy. (14) Among the factors contributing to the government's hesitance were financial constraint and "the emergent and somewhat controversial nature of ABA/IBI therapy." (15)
The petitioners sought a declaration that the denial of funding for Lovaas therapy (a particular type of ABA/IBI therapy) by the Ministries of Health, Education and Children and Families violated s. 7 and s. 15 of the Charter. They also sought an order of mandamus requiring the Crown to pay for the costs of past and future treatment.
Decision of the British Columbia Supreme Court
Allan J. addressed only the claim against the Ministry of Health because she considered the claim to primarily a health care issue. (16) Having thus narrowed the claim, Allan J. found that applied behavioral therapy is a "medically necessary service" for autistic children. (17) In making this finding, she rejected the Crown's "narrow definition of a 'medically necessary service' as one that must be provided by a health care practitioner." (18) Instead, she determined that a more precise definition was "whatever cures or ameliorates illness. …