Biology Versus Bureaucracy

Biology Versus Bureaucracy

Biology Versus Bureaucracy: A Primer on How BC’s Public Schools Ignore the Rights of Autistic Children

It was very exciting for me to hear the history about the battle for getting autistic children’s rights at a talk hosted by FeatBC in West Vancouver last night.

For autistic children to not be discriminated against (and autistic adults, ofcourse), to not be segregated, to have scientifically verifiable effective treatment and a meaningful education.

I heard the whole story straight out of the horse’s mouth so to speak – from Beverley Sharpe from FeatBC, who played a pivotal role in the litigation resulting in autistic children’s rights. I had spoken to Michelle Auton of theAuton et al. v. AGBC 2000 decision years ago, who had given me a similar narrative as Ms. Sharpe did.

The FeatBC website was where I found my first really meaningful job, as a junior behavioural therapist in a home team for an autistic child more than 13 years ago. The truth is, back then, I didn’t know where I was going with that job. Junior therapy was almost the only job out there for a 21 year old psychology student such as myself. There was a lot of data collection, and I had to apply advanced educational techniques and implement a precisely laid out regime of rewards to each child I worked with. The educational system I was implementing is generally called Applied Behavioural Analysis, a systematic set of teaching techniques and data collecting. It was interesting work, but I didn’t start to notice the significance of it until my later years in university which is when I read about the theories behind autism.

A misunderstanding about ABA is that it only improves academic tasks such as math or English, but it has proven itself as an effective influence on behaviour and social skills. As part of ABA programs, each home has a behaviour consultant who has the training and skills to mastermind and engineer all dimensions of an autistic child’s education. Then a team leader or senior therapist implements the program and supervises and trains the other therapists (the juniors like me at the time) who also implement the consultant’s programs. This remains the norm in home-based autistic treatment and intervention.

After getting my BA in psychology, I went to law school. After law school, I was unemployed for a while and decided to get part-time work in home therapy again, which I started to eventually do full time. I had the pleasure of working with the best consultants and soon became a senior lead therapist. I had the pleasure of working with many of the families that were integral in the litigation processes that has led to the current body of law on autistic children’s rights.

Due to my ABA experience, I was picked up by the Vancouver School Board in order to appease families who were threatening litigation against the board (and which I couldn’t understand at the time). An autistic child’s parent was threatening litigation because the Board refused to offer his child ABA-style education. For four years, I was assigned to autistic students with the biggest behavioural problems in the district due to my extensive ABA experience, to both utilize my experience for the benefit of the students and to help stop litigation by parents of the students.

You see, the home teams are far ahead of the school system. The home teams had the benefit of a class action, theAuton et al. case. Auton et al. has an interesting case history. Initially, the BC courts, including the BC Supreme Court, not only acknowledged that ABA treatment was superior to other methods for autistic kids and was medically necessary, but also that the province was obligated to offer ABA as part of medicare, stating that:

“The Crown discriminates against the petitioners contrary to s. 15(1) by failing to accommodate their disadvantaged position by providing effective treatment for autism. It is beyond debate that the appropriate treatment is ABA or early intensive behavioural intervention” (paragraph 156 of Auton et al. in the BC Supreme Court).

Things get dark, however, with the second appeal of this case, the appeal to the Supreme Court of Canada where an unprecedented number of lawyers showed up against obligating the province to offer ABA therapy through medicare. They succeeded in part. The Court upheld the previous rulings in principle that ABA was medically necessary but stopped short of making its availability an obligation on the province.

If you weave your way through the law or the system, the excuse is always the same, “we agree, but we don’t like people telling us what to do.”

Like a boyfriend worried about how manly he is in the eyes of his girlfriend, the law and administration of autistic rights is also apparently based on some insecurity complex. Schools act like their expertise is being undermined. Apparently, the biology of autism and what is medically necessary falls within their knowledge base, and is something that a math or English teacher is able to rebut!

Hewko in the BC Supreme Court specifically looked at the obligations of the school system. It was clarified that, as stated in the School Act, children had the right to meaningful education in the school system, and ofcourse we can not discriminate and say only some students have that right.

The result of school based non-ABA programs was to either make the children behaviourally worse or to simply babysit the children while they are at school, neither which are meaningful education. ABA requires that the teacher’s assistant or support worker work with the child on a 1 to 1 basis, and have ‘instructional control’ over the child, meaning that the child listens to the adult’s instruction rather than the instructor giving in to whatever the child wants.

Although ABA is inevitably combined with other methods in the school system, which I have extensive first-hand knowledge, ABA is still the key ingredient that gives support workers, assistants, and teachers that instructional control over the child, reducing maladaptive behaviours from self-harm to aggression, and increasing acquisition of adaptive behaviours, academic skill, and social skills. To have non-ABA programs in the school, which again I have first hand knowledge about, means that your child might get dragged around the floor of the class and yet still reign over the instructors and you will never find out about it because there is no data collection. Their noise level will not improve, their anxieties will not improve, their self-destructive behaviours will not improve, their strong reactions to other students or teachers will not benefit from an effective response cost.

Non-ABA teachers and instructors will try to force the children to do what they are incapable of doing because they did not go through the stages of teaching that ABA requires, for instance the correct level of prompting and a steady fading of the prompting level.

ABA requires data collection of every behaviour, incident, and instructional session, to assess what rewards and prompt levels are required for the child. Children under ABA programs go from illiterate to literate, from fear-inducing to giving insight to other kids on deep scientific and moral issues. Autistic children are by their nature engineers, and have productive instincts. Some like vacuuming, some like recycling, all like engineering.

Parents have rights under Hewko throughout BC, and yet when I was in the system, either the board and school environment did not allow for those rights to be implemented, even if of no cost to the system, or the parents didn’t pursue their rights. Parents have recourse to “Section 11” appeals of decisions of the school board when the board doesn’t assign the right staff to their children or provide adequate measures to ensure that there is instructional control in the child’s education.

One must have a behavioural consultant in their home team and advocate the use of the home programs in school, because the consultant’s home program specifically ensures the right learning targets and methods for the child. In one school, a teacher would constantly pressure an autistic child to read sentences out of his grasp, and her methods were such that the child would rebel and throw things around the class. The home program would ensure that teacher and aids are targeting the right level of skills and doing it correctly. It’s not rocket science.

For more information about this, please inquire with my office for a free consultation on your rights. There are many resources to help you get your child learning faster and more which I can point you to.

Author: Ram Joubin, Barrister & Solicitor, (778) 728-0208.

Administrative Law – There is help for you!

Administrative Law - There is help for you

Administrative law touches the everyday lives of citizens in more ways than any other area of law.

It is the body of law that attempts to ensure that governments (and government officials) deal with citizens in a manner that is both lawful and fair.

There are hundreds of municipal, provincial, and federal tribunals, boards and commissions. Administrative law is concerned with the regulation of governmental power in the state’s relations with individuals, where it has the most immediate impact on people.

All levels of government make laws and regulations that affect us every day. Municipal governments have Bylaws and Licensing

Provincial government programs include Employment – minimum wage, breaks, working conditions, Residential Tenancies – housing from application to tenancy to termination and Assisting Programs – social assistance, worker’s compensation.

The Federal government regulation include Employment Insurance, Disability benefits, Pensions, Human Rights.
Other specialty organizations (with rules and procedures derived from government laws include: Doctors, Dentists, Lawyers, Real Estate Agents, Architects, Veterinarians, etc.

There is a sense that these types of hearings will produce better and fairer outcomes because plaintiff’s can hear all the evidence and listen to all the various perspectives on a question. This also contributes to the belief in the participation in a democratic process.

The procedure before administrative boards and tribunals is usually less formal than that in the courts.

Benefits

  • Individuals can represent themselves
  • Less procedures
  • Impartiality
  • Independence

Challenges

  • Do not have to follow precedent
  • Bias
  • Government Control

All Administrative Tribunal decisions can be appealed to the courts under the Judicial Review procedure. The leading case is Dunsmuir v New Brunswick 2008 SCC 9, [2008] 1 SCR 190 where administrative decisions are appealed based on their correctness or reasonableness.

Contact Roslyn Chambers today for help with all Administrative Law questions: (778) 728-0208

Steps In A Lawsuit

Steps in a Lawsuit

Here is a CLE handout everyone should review if they have a dispute. The timing of a lawsuit is difficult to predict. It depends on many things, including actions the Defendant takes, court schedules, and decisions you make. A lawsuit can take up to two years or longer to settle or go to trial.

However, most lawsuits go through the same basic steps, although not always in the same order. Some lawsuits skip some steps, and some steps are repeated many times over.

The steps listed here are the main steps that occur in a lawsuit. They will give you a general idea of what to expect.

1. Gathering the Facts

With our client’s help, we gather all the available facts concerning the claim, including interviewing and taking statements from witnesses. We sometimes hire investigators or experts to help us, so this step can involve expenses.

2. Starting the Lawsuit

We begin the lawsuit by preparing the necessary court documents and filing them in court. This means the court date-stamps all copies of the documents, keeping one copy for their official record. We then deliver filed copies to the Defendant’s lawyers. This step also involves expenses such as court filing fees.

3. Interim Applications

After we start a lawsuit, but before trial, we or the Defendant’s lawyers sometimes need to ask the court to decide certain things. Going to court to ask for an order is called an interim application. These interim applications are usually about how the lawsuit should be handled. For example, we might ask the court to order that the Defendant show us a particular letter or document that the Defendant would rather not let us see.

4. Examination for Discovery

After gathering the facts, either we or the Defendant’s lawyers arrange an examination for discovery. At the examination for discovery, we question the Defendant under oath about the accident. We also ask the Defendant to show us what relevant documents the Defendant has, and to tell us about all relevant documents he or she has ever owned or had access to. In return, the Defendant’s lawyers also question our client about the accident and the injuries he or she suffered. We give the Defendant copies of the documents we have that relate to the lawsuit, and our client describes all relevant documents he or she once had, or had access to.

5. Review of the Law

Once we have a good idea of all the facts, we review the law. We then give our client our legal opinion about what the likely outcome of a trial would be, and how much money our client can expect to get.

6. Negotiation and Settlement

When it is appropriate, we talk with the Defendant’s lawyers to see if they will settle the claim. A settlement is an agreement between the parties to a lawsuit which sets out how they will resolve the claim. If the claim is settled, it does not go to trial.

7. Preparation for Trial

We prepare the case for trial, including getting all the necessary documents together, arranging for witnesses to attend, and preparing any legal opinions.

8. Trial

We act for our client at the trial. When the judge has decided the case, which could be a few days or weeks after the trial, we prepare the court order for the judge to sign, or approve how the other lawyers write up the judgement to make sure it is correct.

9. Completing the Claim

We do all the work necessary to complete the claim. This includes giving our client money from a settlement or judgment, after we have deducted our fees and expenses. However, it does not include starting new steps such as enforcing or appealing a court judgment. To enforce a judgment means to start proceedings to force the Defendant to actually pay what he or she has been ordered to pay. To appeal a judgment means to start work to get a higher court to change the original court’s judgment.

Phone us today 778-728-0208