Lieberman award. Section 15 of the Charter and the allocation of resources in health care: a comment on Auton v. British Columbia.

On 19 November 2004, Supreme Court of Canada released its decision in Auton (Guardian ad litem of) v. British Columbia (Attorney General) (1). Contrary to both lower courts, (2) Court held that refusal of Province of British Columbia to fund a particular treatment for autistic children did violate right to equality under Canadian Charter of Rights and Freedoms (Charter). (3) As McLachlin C.J.C. explained, issue before Court was not what public health system should provide, which is a matter for Parliament and legislature. The issue [was] rather whether B.C. Government's failure to fund these services under health plan amounted to an unequal and discriminatory denial of benefits under that plan, contrary to s. 15 of (4) The petitioners, however, failed to establish that denial of benefits violated Charter. (5) While government must provide services authorized by law in a non-discriminatory manner, discrimination was established because benefit claimed, funding for all required services, was provided by law, nor had government excluded autistic children on basis of disability. (6) Determining which denials of a health care violate equality rights and which do is a difficult task. (7) Moreover, this issue will likely continue to be contentious ... as 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 issue of equitable allocation of resources. This comment examines two components to this framework: medical necessity and equality analysis under s. 15. After summarizing facts and two lower court decisions, I shall argue that Supreme Court of Canada's analysis in Auton is consistent with prior case law, and though groundbreaking, provides useful clarification and guidance. Facts The four infant petitioners suffer from autism, a neuro-behavioral syndrome caused by dysfunction of 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 Province of British Columbia to provide funding for J2 At time of trial, government funded several programs for young autistic children and seemed to be moving toward funding some form of early intervention (13) Nevertheless, government had established funding for ABA/IBI (14) Among factors contributing to government's hesitance were financial constraint and the emergent and somewhat controversial nature of ABA/IBI therapy. (15) The petitioners sought a declaration that denial of funding for Lovaas therapy (a particular type of ABA/IBI therapy) by Ministries of Health, Education and Children and Families violated s. 7 and s. 15 of Charter. They also sought an order of mandamus requiring Crown to pay for costs of past and future treatment. Decision of British Columbia Supreme Court Allan J. addressed only claim against Ministry of Health because she considered claim to primarily a health care issue. (16) Having thus narrowed claim, Allan J. found that applied behavioral therapy is a medically necessary service for autistic children. (17) In making this finding, she rejected 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. …

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