Autism & Human Rights - PEI Government Discriminated Against Autistic Children With Screening and Age Limits
Posted Aug 26 2008 11:23pm
In a decision dated June 26, 2007 in the cases of Vic Douse v. Government of PEI, Carolyn Bateman v. Government of PEI, Brad and Dale Wonnacott v. Government of PEI, Margaret Murphy v. Government of PEI a Prince Edward Island Human Rights Panel has found that the Government of Prince Edward Island, as represented by the Department of Social Services and Seniors, discriminated against autistic children and their families by use of a screeing questionnaire, the FIM Screening Tool, and by its imposition of age limits. It rejected a complaint based on monthly caps for services.
The Panel found that use of the FIM Screening Tool in the delivery of services under the PEI government's Disability Support Program (the "DSP") discriminated against autistic children on the ground of mental disability as compared to physically disabled persons.
The FIM is a tool developed by the University of Buffalo which included a core of eighteen questions which could not be adjusted or modified although sections outside the core could be modified. Thirteen of the eighteen questions related to functional skills such as walking, eating, grooming and bowel and bladder control. Five questions related to cognitive skills designed to measure comprehension, expression, social interaction, problem solving and memory.The score for functional skills could range from 13 to 91. The score for cognitive skills could range from 5 to 35. The two scores would then be added together for a total score which could range from the lowest level of functioning at 18, to the highest level of functioning at 126. The total arrived at would then be converted to a percentage of the highest possible score of 126. Thus a score of 63 would be converted to 50%. A person whose functioning percentage was 25% or less would receive $3,000.00 a month, 26-50% would receive $1500.00 a month, 51 to 74 $700.00 and 75% or more would receive $300.00.
The government acknowledged the subjective element of the test and the resulting concern for test provider or reporter bias. There were no certification or competency standards required of those administering the tests and there was no way of knowing if the tests were properly administered. No expert evidence was offered to explain or justify use of the FIM. The panel concluded that the FIM screening tool used to assess their level of functioning placed the mentally disabled Complainants at a level higher of functioning than warranted by all of the needs and circumstances of their disabilities and lives.
" The Panel finds that the Respondent discriminated against the Complainants Benjamin Wonnacott and Jewel Douse on the ground of mental disability with respect to the manner in which services were provided under the Human Rights Act, supra contrary to s.1(1)(d) and s.2(1)(b). Delivery of services was tied to level of functioning. The FIM screening tool used to assess their level of functioning placed the mentally disabled Complainants at a level higher of functioning than warranted by all of the needs and circumstances of their disabilities and lives. Discrimination resulted from the differential treatment afforded to the Complainants as a result of the use of the FIM screening tool. The physically disabled comparator group would not have received such differential treatment since the FIM screening tool was not weighted against them.Differential treatment is considered by the Supreme Court of Canada in Law,supra. At paragraph 53 it is noted that ‘human dignity is harmed when individuals are marginalized, ignored or devalued’. Law says that human dignity is concerned with physical and psychological integrity and empowerment and is harmed by unfair treatment. Benjamin Wonnacott and Jewel Douse are thus members of a group of mentally disabled people who are arbitrarily discriminated against in a way that is inconsistent with the overall scheme of the DSP Policy. It denies their fundamental human dignity."
The panel found that the discrimination was not intentional but was created by the effect of using the FIM screening tool. Discrimination having been found the Panel then went on to determine whether evidence of undue hardship in accommodating the complaints had been presented which would excuse the discriminatory effect of use of the FIM. The panel concluded that no quantifiable evidence was brought forward by the with respect to costs of accommodation. Specifically costs for accommodation to address the effect of the screening of mentally disabled individuals using the FIM was not brought forward. Impressionistic evidence was not sufficient for the PEI government to discharge its burden of proving undue hardship in accommodating the complainants' mental disabilities.
The Panel also found that discrimination resulted from the PEI government's income testing of parents with disabled children under the age of eighteen which it concluded discriminated against those children on the basis of age and family status.
On this issue the Panel noted that parents of persons with disabilities older than 18 were not means tested for receipt of services whereas parents of persons younger than 18 were means tested. Although this provision applied to the parents themselves, ultimately, in either case, the provision or denial of services would have an effect on the persons with disabilities. It is the children with disabilites under 18 who could be deprived of the services. The panel found that the Complainants are being denied the same level of benefits accorded to others in the same situation, save for age. Unlike Auton where the government, according to the Supreme Court of Canada characterization had not offered the service in question to any group in this case the service was offered to both groups but on different terms, terms which discriminated in their effect on those persons in the group under 18. Again, the government did not provide evidence to discharge its burden of proving undue hardship would arise from elimination of the discriminatory terms.
On a third issue the panel concluded in favor of the PEI government that (i) ceilings on monthly funding available for supports under the DSP did not discriminate against severely disabled persons who are left with unmet needs and that (ii)lifetime caps on home and vehicle modifications did not discriminate against lifelong severely disabled persons.
On the capping issue the Panel found that the DSP did not promise to meet all needs, and the government was entitled to deference in use of finite public resources which justified setting limits or caps on use of those resources. No discriminatory purpose was found in setting the monthly caps and the complainants had not been singled out for inferior or less advantageous treatment based on their disability.