© 2003  Karen Selick
First Through the Floodgates

An edited version of this article first appeared in the February, 200 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.

First Through the Floodgates

Imagine how gratifying it would be if you suddenly found yourself with an opportunity to alleviate a severe health problem for several young children, by a mere stroke of the pen.  You’d try very hard to use that opportunity.  You might easily allow the plucking at your heartstrings to deafen you to any logical protests from your brain.

This benevolent impulse is the most benign of the explanations I can conceive of to account for the recent decision of the B.C. Court of Appeal in Auton v. British Columbia  [2002] B.C.J. No. 2258.  The other conceivable explanations—that the court was merely power-hungry or incapable of reason—are too disheartening to contemplate.

The petitioners in the Auton case were four autistic children and four of their parents.  They had been denied funding by the B.C. medicare system for something called the Lovaas Autism Treatment, which costs between $45,000 and $60,000 per child per year.  Each family had paid privately for its child to be treated and observed marked improvement. They sued for an order requiring the B.C. government to provide further Lovaas Treatment and to compensate them for past expenditures. 

Affirming the trial judge, the Court of Appeal ordered the B.C. government to fund the treatment and to pay compensation of $20,000 per family. 

Did the judges go home that night smugly satisfied that they had done a good deed?  If so, it could only have been because they failed to consider all of its ramifications. 

There are only two ways the government can comply with the order.  One is to cut back on services to other unlucky individuals.  The other is to take more from taxpayers.  Either way, the element missing from the court’s cogitations was the alternative uses to which the money it earmarked for Lovaas Treatment could be put. 

The court will never know how many heart attack or accident victims it doomed to die in hospital emergency rooms because of budgetary re-jigging, or how many elderly or disabled people (perhaps even some with autism) will wind up in institutions because their overtaxed families can no longer afford to care for them at home.  In alleviating the suffering of one group, it assuredly inflicted suffering on others.  But the new sufferers, being unidentified, are easily ignored. 

It’s bad enough that Canadians are prohibited from making our own decisions about how our health care dollars are spent, but given that unfortunate state of affairs, who else is supposed to do it--the executive branch of government or the judicial branch?  Aren’t we supposed to have separation of powers here? 

At least health ministry bureaucrats have some facts before them that let them attempt, however bumblingly or futilely, to weigh the competing uses for health care dollars.  The court, by contrast, makes its decision in an evidentiary vacuum, untouched by the supplicating voices of several million other health care consumers.  Of all possible decision-makers, it is the most ignorant and least qualified. 

The court gave token recognition to this problem, saying, "The Crown is entitled to judicial deference in performing its difficult task of making policy choices and allocating finite resources among myriad vulnerable groups."  Then it went ahead and steamrolled over the Crown’s choices. 

One rationalization was Section 15 of the Charter of Rights and Freedoms.  The autistic children had been discriminated against, the court said, on the grounds of mental disability and age.  But consider: if an autistic child broke his leg, he’d get the same treatment for a broken leg that a non-autistic child would get.  And if a non-autistic child, or an adult, requested Lovaas Treatment (suppose, for instance, that it could also alleviate schizophrenia), the request would just as surely be denied.  The government wasn’t discriminating against autistic children, only against a form of treatment.  (I suppose its inventor, Dr. Lovaas, might want to complain about this, but the Charter does not as yet guarantee equal opportunity to abstractions—thank goodness.)

The court’s second rationalization was its parens patriae jurisdiction.  "The law works for the protection and advantage of children," it said.  But again, this overlooks the fact that other children, not yet known to the court, are likely to be among those harmed when health care funds are reallocated or taxes are raised.  Why doesn’t parens patriae require the court to consider those kids?

But just wait—eventually, even the courts will be compelled to get into this balancing act, as news of this decision gets around and people with ailments of every description start pouring into court. 

Oh, this’ll never happen, the court said.  "The Crown expressed similar predictions of disaster in Eldridge [Eldridge v. British Columbia [1997] 3 S.C.R. 624 in which the Supreme Court of Canada ordered B.C. to provide sign language interpretation services as a medical benefit]... As it turns out, accommodation for the deaf has been made without catastrophic results to the health care system."

It never seemed to dawn on them that the Auton case is itself the spawn of Eldridge—merely the earliest trickle through the floodgates. Its message is clear:  the squeaky wheel gets the grease.  It’s only a matter of time before others start to squeak up for innumerable other illnesses.  Who’ll get Charter or parens patriae protection then?


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February 22,, 2003