Dear Editor:
Re: Elizabeth James’ column on autism and ABA, March 2.
Kudos to James for writing an informative and valuable column on autism and the unrivaled efficacy of Applied Behavioural Analysis treatment (ABA). This is a subject that deserves much more attention, and government action, than it has received to date in Canada. As a director of the Medicare for Autism Now! Society, and a former trial lawyer, I read the column with especial interest.
In her column, Ms. James does make one important factual error: In its 2004 decision, the Supreme Court of Canada, in the leading Auton case, did not overturn the 2000 decision of the B.C. Supreme Court, insofar as it concerns the trial judge’s central finding of fact, based on all expert medical evidence introduced at the trial, that ABA is “medically necessary.” Nor did it overturn her related, and equally important, finding of fact that there were “no effective competing therapies,” a situation that exists to this day. The
B.C. Court of Appeal unanimously accepted the trial judge’s two essential findings of fact.
The Supreme Court of Canada, ruled that the section 15(1) charter rights of children with autism had not been violated by virtue of the government’s failure to provide funding for their ABA treatment, and held that it was for the legislature to determine how public monies were to be spent on health care or other social programs.
While the B.C. courts focused their decisions on whether, as a matter of fact, the treatment was medically necessary, the SCC concentrated on a legal analysis of the relevant statute, the BC Medicare Protection Act, which provides that only “physician-provided services” were to be considered “medically required” and fully funded. This intentionally narrow statutory definition is irrelevant to the crucial question of whether, in fact, ABA treatment is medically necessary and worthy of proper funding by taxpayers.
David Marley
West Vancouver
What are your thoughts? Send us a letter via email by clicking here or post a comment below.
