An Ontario judge has ordered the province to finance behavioural treatment for three autistic children, concluding that the therapy is vital if they are to thrive in school.Mr. Justice Lee Ferrier of the Superior Court of Ontario predicted unequivocally in his ruling that the children ''will suffer irreparable harm'' if their treatment is not maintained.
The ruling is in stark contrast to a landmark Supreme Court of Canada judgment -- known as Auton -- released in the fall, where the Supreme Court refused to order British Columbia to provide autism treatment because it said the province has a right to decide its health-care priorities.
Taking its cue from the Auton judgment, Ontario Crown lawyers argued in the McNabb-Bettencourt case that the Supreme Court had precluded injunctions being granted to families with autistic children. Injunctions would have forced the province to continue treatment after age 6.
Judge Ferrier strongly disagreed. "Despite this argument, I am satisfied that notwithstanding Auton, serious issues remain, which should be determined at a trial, whether the benefit claimed is medical in nature or a question of access to education programs."
Lawyers Marvin Kurz and Steve Klein, who represented the McNabb and Bettencourt families, said yesterday it was crucial for Judge Ferrier to turn away from the Auton ruling's emphasis on health-care programs, and ground his decision in the educational context.
"The key argument we made was that Auton was about health. But this wasn't about health at all," Mr. Kurz said in an interview.
Almost a dozen injunctions have been granted to Ontario families since arguments began two years ago in the Wynberg case. However, the McNabb-Bettencourt rulings are the first since the Auton decision delivered a glancing blow to autism litigants across the country.
(The Wynberg case involves the constitutionality of the province's policy of cutting off treatment at the age of 6. Madam Justice Fran Kiteley of the Ontario Superior Court reserved her ruling in the case last fall.)
"If Zachary's and Travis's ABA treatment is reduced or withdrawn, they will experience significant harm," Judge Ferrier said. "Delay in receiving treatment between now and the release of the decision in the Wynberg trial could also result in irreversible losses for Zachary and Travis."
Mr. Kurz and Mr. Klein said yesterday that Judge Ferrier's findings also depart dramatically from the Auton ruling in another respect -- his glowing evaluation of the effectiveness of ABA/IBI treatment.
Whereas the Supreme Court referred to the treatment as an emerging, unproven technique, Judge Ferrier left no doubt that it is a recognized therapy that worked wonders for the McNabb and Bettencourt children.
Referred to interchangeably as ABA or IBI, the treatment was developed in California by Norwegian-born psychologist Ivar Lovaas. Therapists break down language and mental and physical tasks into components that are repeated until an autistic child masters them. Most effective when children are young, the treatment requires long hours of supervision and can cost up to $60,000 a year for each child.
Like all Ontario children diagnosed with autism, the Bettencourt and McNabb children were cut off from publicly funded preschool autism treatment at the age of 6.
They had been making significant progress in learning and communicating and interacting with others. Soon after the treatment was cut off, they became disruptive, distressed and virtually incapable of being taught. They simply could not adapt to typically loose teaching formats and a reduction in the reinforcement they were used to.
Their parents tried to pay for treatment on their own but ran out of money.
"Without IBI, Zachary and Travis were virtually out of control," Judge Ferrier said in the McNabb-Bettencourt ruling. "The public school had neither the resources nor the training to allow Zachary and Travis to learn in the school environment. With IBI, the children are able to learn.
"Continuation of the boys' IBI/ABA treatment is essential for their continued success -- in their family, their school and in their community," the judge said. "At this time, the public and separate school systems are either unable or unwilling to provide the required level of support for children with autism."