Wednesday, November 01, 2006

Court denies ABA is medically necessary, celebration ensues

The wrath of autism advocates has never been more impressive than in the aftermath of the 2004 Auton Supreme Court of Canada decision. But one thing the SCC did not do was deny that ABA was "medically necessary" autism treatment. Their decision was instead primarily based on whether all medically necessary services for everyone in Canada are government funded.

Then there's the 2005 Wynberg trial decision, arising from an Ontario battle over the funding of ABA/IBI. This decision includes numerous descriptions of ABA-based autism interventions, all from recognized experts. Here's one expert description of ABA:

Dr. Luce described it as a methodology which incorporated the “systematic introduction of educational strategies to determine whether that educational strategy is effective or not”.

Here's another one:

Dr. Newman described it as a “general theory of education and learning”.

And another one:

Dr. Leaf referred to ABA as a “teaching strategy” and a “teaching methodology” and said that it was “not a treatment modality, it’s an instructional framework”

And another one:

Dr. Handleman, an expert in education, said that ABA was an education for children with autism, not a treatment.

Another expert witness, George Niemann, was asked whether ABA was education or treatment. He responded:

...we employ a non-medical model, Your Honour...

This looks like a conspiracy to deprive autistic children of "medically necessary" autism treatment.

Or maybe not. Stephen Luce, Bobby Newman, Ron Leaf, and Jan Handleman are all famous behaviour analysts. Dr Luce co-edited one of the major ABA manuals with Catherine Maurice and Gina Green. Dr Newman was but recently the President of the Association for Science in Autism Treatment. Ron Leaf is a big international ABA service provider and co-wrote another of the major ABA manuals. Jan Handleman is well known as an important behaviour analyst. And all these expert behaviour analysts were testifying for the ABA parents in Wynberg. I don't know who George Neimann is, but he too was testifying as an expert for the plaintiffs--for the ABA parents.

In other words, the experts quoted above were all on the side of Canada's autism advocates. Their testimony about the nature of ABA-based autism interventions was indistintuishable from the testimony of the Ontario government side experts in this regard. E.g.,

Dr. Dunlap described ABA as “the systematic application of procedures that are based on learning theory and principles of operant learning to produce change of importance in human behaviour”.

And:

Dr. Siegel and Dr. Perry also agreed that IBI is not considered a medical intervention but a psychological or educational intervention.

It was unanimous: ABA is an educational methodology. It is not medical, or medical treatment, or "medically necessary" treatment. All the experts--most of whom are respected behaviour analysts--agreed. The trial judge in Wynberg, in her decision, refers to "early in the trial", when "medically necessary" ABA was "still a live issue". By the end of the trial, this issue had long been declared dead. The Wynberg trial decision, unlike the Auton SCC decision, denies that ABA is "medically necessary" autism treatment.

And Canada's autism advocates were ... delighted. They overwhelmingly celebrated the Wynberg trial decision and organized major demonstrations in Ontario to protest against its appeal.

In a victory for the Ontario government, the Wynberg trial decision was recently overturned on appeal, but this may in turn be appealed to the Supreme Court of Canada. Would Canada's autism advocates celebrate if the SCC overturned the Wynberg appeal decision? This could restore the Wynberg trial decision. But if the SCC were to restore this decision, the SCC would be denying that ABA is "medically necessary" autism treatment, something they failed to do in Auton.


References:

Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78

Leaf, R. & McEachin, J. (1999). A work in progress: Behavior management strategies and a curriculum for intensive behavioral treatment of autism. New York: DRL Books.

Maurice, C., Green, G., & Luce, S.C. (Eds.)(1996). Behavioral intervention for young children with autism. Austin, TX: Pro-Ed.

Wynberg v. Ontario, 2005 CanLII 8749 (ON S.C.)

8 comments:

Estee Klar-Wolfond said...

Now the question remains...is it the only education for autistic people? Wynberg recently wrote us a letter conceding that indeed it is an educational method. However, we also know that it is not the only educational method.

Michelle Dawson said...

The parents responsible for the Wynberg case call themselves the "Friends of Children with Autism". They've recently put out a "fact sheet" (there is definitely an epidemic of autism advocacy "fact sheets") where they describe ABA-based autism interventions as a "medical treatment". I guess they don't agree with the ABA experts who testified for them, or with the trial decision they celebrated.

Ms. Clark said...

Hey! You're in the autism-hub! Way cool.

I have to get a score sheet or something to disambiguate where these decisions are going... it would help if I had half your ability to understand legalities and legal terminology.

Michelle Dawson said...

Hi Ms Clark, I don't think it's supposed to make sense. There's also all those autism advocates trying to change the Canada Health Act (via parliament) to make ABA medically necessary for all autistics in Canada. But does this mean that even if the Wynberg trial decision had been upheld (or if it's restored via the SCC) then they would want it disregarded? [boggles]

Anonymous said...
This comment has been removed by a blog administrator.
Michelle Dawson said...

I deleted the message by "anonymous", for those of you who read it, because spreading rumours about other people's children is beyond the pale.

For those keeping track, the Wynberg (and Deskin) parents have now sought leave to appeal their case to the Supreme Court of Canada.

Anonymous said...

I'm following the Wynberg case and I was wondering where you found the information about the application for leave to appeal to the Supreme Court. I've been searching for this and have been unable to find it.
Thanks!

Michelle Dawson said...

Hi anonymous, you can find a press release (which has been well-distributed) about the latest on the Wynberg case here.