CHEO accused of rights violation

Hospital said to have discriminated against child with autism

The Ontario Human Rights Tribunal will hear a complaint that the Children’s Hospital of Eastern Ontario discriminated against an autistic boy when it discharged him from an intervention program.

In an interim decision dated Aug. 16, the tribunal agreed to add CHEO as a respondent to the complaint, which originally named only Ontario’s Ministry of Children and Youth Services.

After reviewing evidence that officials at CHEO made the decision to discharge the boy — referred to only as M.B. — the tribunal added CHEO to the case.

“There is a potential that CHEO might be responsible, or share responsibility, for any alleged (Human Rights Code) violations in this case,” tribunal vice-chair Jo-Anne Pickel concluded.

According to facts outlined in the Aug. 16 tribunal decision, M.B. is a child who has been diagnosed with autism spectrum disorder and global development disability.

As a result of his diagnosis, he was eligible for intensive behavioural intervention therapy at CHEO.

The therapy, funded by the provincial ministry, provides individualized programs for children towards the severe end of the autism spectrum.

CHEO’s website describes the program as a comprehensive approach used to teach a broad range of skills, including communication, socialization, self-help, pre-academic and play. The goal is to help young children with autism “catch up developmentally with their age peers,” the website says.

The human rights complaint was filed by M.B.’s “next friend,” D.H. (In law, the term “next friend” refers to someone who acts on behalf of another person, often a child, who lacks the legal capacity to act on his or her own behalf.)

It alleges that the boy was discharged from the program “as a result of his secondary diagnosis of GDD, which affected his ability to meet certain learning goals.”

That amounts to discrimination because of disability, a violation of the Ontario Human Rights Code, the complaint alleges. The Citizen contacted D.H., the complainant, but he declined to comment.

GDD — known as Global Development Delay before age five — is defined as “a disability characterized by significant limitations both in intellectual functioning and in adaptive behaviour.” Common signs include limited reasoning or conceptual abilities, poor social skills and judgment, communication difficulties and aggressive behaviour.

The complaint against CHEO and the ministry alleges that the manner in which M.B.’s eligibility was assessed had a “disparate impact” on him because of his secondary diagnosis.

After mediation on May 17 of this year failed to resolve the matter, the tribunal agreed to hear the complaint next Feb. 12-14.

CHEO declined to comment specifically on the case Thursday. But in an email, it said the hospital’s care providers are “incredibly committed to the well-being of kids and would never discriminate against a child because of a disability.

“Our clinicians have to make difficult decisions about the appropriate care for each child, and they always strive to base their decisions on the child’s unique needs and best interests.”

The only reason a child would be discharged from the intensive behavioural intervention program, the hospital said, “is if the treatment were not working for him or her.”

The complainant applied to add CHEO as a respondent after receiving a letter from the ministry explaining that it was the responsibility of regional service providers — CHEO, in this case — to determine eligibility for intensive behavioural intervention programs.

In a response to the tribunal opposing the application, CHEO reviewed the history of M.B.’s treatment and its discontinuation and declared that there was no basis for a finding that the hospital violated the Human Rights Code.

CHEO said M.B. “was treated in the same manner as all other children entering the program,” the tribunal’s interim decision says. The hospital also argued that the decision to terminate services to M.B. was based on “a clinical decision founded on appropriate clinical testing and clinical judgment.”

According to CHEO’s website, not all autistic children benefit from the intervention program. Some improve, some show limited or no gains and some even get worse.

To continue in therapy, the website says, children need to show “benefit especially in language, general cognitive ability and measures of adaptive behaviour.”

Each child’s progress is reviewed every six months and a clinical decision is made whether the child should continue in the program or be referred to other services.

CHEO’s website says the “clinical decision” regarding continuation or discharge is made by a panel of psychologists and is subsequently reviewed with the child’s parents by the supervising psychologist or clinical supervisor and the senior therapist of the child’s team.

In her decision adding CHEO as a respondent to the complaint, Pickel said the hospital’s arguments that it did not violate the Code by discharging M.B. “are more appropriately made in the hearing on the merits.

“I find that it would be fair in the circumstances to add CHEO as a respondent,” she wrote. “Fairness requires that the applicant be permitted to add the entity that the ministry states was responsible for (M.B.’s) eligibility to remain in the program.”