The right to be free from non-consensual medical treatment is deeply entrenched in Canadian case law[1] and statute.[2] Consensual medical treatment embodies the principles of individual autonomy and self-determination.[3] In non-emergency situations, all medical treatments require informed, capable, and voluntary consent that is free from fraud and misrepresentation.[4] If a patient is capable, the patient is entitled to make the treatment decision. If a patient is assessed to be incapable, the decision regarding treatment is deferred to a substitute decision maker.[5] Within the context of medical care for a minor, the Health Care Consent Act [6] does not define the age at which a minor may exercise consent and, accordingly, the capacity to exercise consent varies on a case-by-case basis.[7] Physicians are required to make a decision regarding the consent capacity for a minor in a similar manner they would for an adult.[8] Factors that are considered include the cognitive ability of the specific individual and the complexity of the particular decision to be made.[9]As such, it is well understood that an individual may have the capacity to consent to certain treatment but not to others, for instance one may be able to consent to the treatment of a broken leg but not to the treatment for lung cancer.[10] However, in general, when a minor requires necessary medical treatment neither the minor nor a substitute decision maker has the right to refuse the treatment.[11] It is in such circumstances that disputes regarding the protection of liberty, freedom of expression, security of the person, and religious freedom often arise. Two recent cases in Ontario of Aboriginal children forgoing chemotherapy to pursue traditional treatment made national headlines and sparked considerable debate in the media. Both these cases illustrate the relatively rare examples where a child is allowed to forego necessary medical treatment, even if the decision will likely increase the likelihood of the child’s death. [12]Hamilton Health Sciences Corp v DH [Hamilton Health] is particularly significant because the court purports to carve out an unprecedented Aboriginal right for children to forego necessary medical treatment to pursue traditional treatment.[13] By reflecting on the two Aboriginal children cases, and the practices of the Children’s Aid Society [CAS], this paper suggests that Aboriginal children should not have the Aboriginal right defined in Hamilton Health[14].
Part I of this paper will provide a brief contextual look into the two 2014-2015 cases of Makayla Sault and J.J.. Part II will then reflect on the two cases to suggest that the Hamilton Health Aboriginal right to forgo medical treatment is flawed. Part III will then further support the argument against the Aboriginal right expressed in Hamilton Health by reflecting on the CAS’ established practices. Part IV will reflect on a recent clarification provided to Hamilton Health. Finally part IV will provide a brief summary.
Part I: A contextual look into the case of Makayla Sault and J.J.
The two aforementioned recent cases relate to Makayla Sault and J.J., two girls who were diagnosed with acute lymphoblastic leukemia but prematurely terminated their chemotherapy treatments.[15] Makayla was the first of the two girls to be diagnosed with acute lymphoblastic leukemia in March of 2014.[16] Physicians estimated that with chemotherapy her chance of survival was approximately 75 percent.[17] Nevertheless, following approximately three months of chemotherapy at the McMaster Children’s Hospital in Hamilton, Makayla stopped her chemotherapy treatment because she believed that the treatment was more detrimental than beneficial to her well-being.[18] Makayla was able to clearly articulate to authorities that she understood the fatal nature of her condition and she preferred death to the continuation of chemotherapy.[19] Instead of chemotherapy, Makayla sought treatment from her family physician, an oncologist at the McMaster Children’s Hospital, and a traditional medicine healer.[20] Also, Makayla attended the Hippocrates Health Institute in Florida.[21] Her parents supported her decision to forgo chemotherapy but the hospital did not.[22] Thus, the hospital referred her case to Brant Family and Children’s Services (BFCS).[23] BFCS conducted an investigation, which included consideration of Makayla’s First Nations’ culture and the active involvement of her Aboriginal Band.[24] Makayla’s Band supported her decision.[25] BCAS’ investigation concluded that Makayla was not a child in need of protection and, accordingly, they would not compel her to continue the chemotherapy treatment.[26] No further legal action was taken. Makayla died in January of 2015.[27] Her parents suggest that her death is attributable to the severe side effects of the chemotherapy, while some medical experts suggest that her death was caused by cancer.[28] An inquiry into the cause of her death is forthcoming.[29]
J.J.[30] was diagnosed with acute lymphoblastic leukemia in August of 2014 .[31] She was given a cure rate of approximately 90 to 95 percent with chemotherapy.[32] Unlike Makayla, as J.J. did not understand the nature of her treatment and “deferred all discussions to her mother”.[33] Accordingly, J.J. was determined by the hospital to be incapable of giving consent to treatment[34] and her mother, D.H., was deemed to be her substitute decision maker. [35] J.J. completed only 11 days of chemotherapy before D.H. decided to discontinue J.J.’s chemotherapy treatment to seek traditional treatment at the Hippocrates Health Institute in Florida.[36] D.H.’s decision was rooted in her strong faith in her Native culture and her belief that pursuing traditional treatment rather than chemotherapy would better improve J.J.’s condition.[37] The hospital opposed D.H.’s decision to forgo chemotherapy and asked Brant Family and Children’s Services, the same CAS involved in Makayla’s case,to override the lack of consent and force J.J. to continue chemotherapy.[38] Following BFCS’ investigation, the Society declined to apprehend J.J. and concluded that there was no protection concern, in part because the Six Nations Band supported D.H.’s decision.[39] Unlike Makayla’s case, for the first time in Canada, the hospital brought an action against the CAS pursuant to the Child and Family Services Act[40]to force chemotherapy on J.J.[41] The hospital asserted that D.H.’s decision to discontinue chemotherapy placed J.J. at a medical risk and, thus, as a child in need of protection pursuant to section 37(2) (e)’s definition of a child in need of protection, which reads as follows:
| (e) | the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment;[42] |
The court ordered that J.J.’s parents and the Six Nations Band be added as parties to the application.[43] The Band argued for the application of subsection 35(1) of the Constitution Act, 1982, which reads as follows:
| 35(1) The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.[44] |
In effect, section 35 of the Constitution preserves Aboriginal rights that existed pre-European contact. The testimony and two papers provided by Professor Martin-Hill, an anthropology professor from McMaster University, on the traditional medicine practices of the Haudenosaunee (the people of the longhouse with whom the Six Nations is a part of) were provided as evidence to support the application of section 35. The evidence aimed to suggest that the Six Nations’ practice of traditional treatment can be traced to pre-contact times and is integral to their distinctive culture.[45] Ultimately, Justice Gethin Edward held that section 35 did apply to the facts at hand.[46] However, not only did Justice Edward find that there was an Aboriginal right to pursue traditional treatment, but that such right afforded the ability to refusenecessary medical treatment.[47] The implication of the case is that an Aboriginal child ortheir decision maker has a constitutionally protected right to forgo conventional medical treatment to pursue traditional treatment.
Part II: Commentary on Makayla Sault’s and J.J.’s case – The Aboriginal right in Hamilton Health is flawed
Reflecting on the Sault Case:
Makayla’s case illustrates the well-established notion in Canadian law that a child may forego necessary medical treatment. Further, Makayla’s case may be wholly understood in light of subsection 4(1) of the Health Care Consent Act, 1996[48], and Canadian common law. Consequently, this paper suggests that Makayla’s case offers no support for the purported Aboriginal right in Hamilton Health.[49] Further, by illustrating that there are other means for an Aboriginal child to forego medical treatment to pursue traditional treatment, Makayla’s case supports the notion that the Hamilton Health Aboriginal right is not necessary.
Under the Health Care Consent Act,
4(1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.[50][Emphasis added]
In fact, the law in Ontario affords patients the presumption that they have capacity to consent to medical treatment unless there are reasonable grounds to suggest otherwise.[51] Accordingly, Makayla’s ability to satisfy the treating physician that she understood the fatal nature of her illness and the consequences of her decision to forego chemotherapy illustrates her ability to meet the consent capacity test set out in section 4(1) of the Health Care Consent Act.[52]
Makayla’s case also is consistent with prior case law and the mature minor doctrine. For instance, the reasoning in Makayla’s case mirrors the case of 12-year-old Lisa Dorothy K., a child diagnosed with fatal leukemia.[53] Lisa opposed the chemotherapy treatment (which involved blood transfusion) because the treatment opposed her religious beliefs as a Jehovah’s Witness.[54]Like Makayla, Lisa sought to undergo an alternative treatment, albeit in Lisa’s case she sought to undergo a mega-vitamin home treatment. [55] Also like Makayla, based on Lisa’s “well thought out, firm and clear… belief[s]” the Court ruled the Lisa had the capacity to consent to treatment and allowed her to refuse the chemotherapy. [56] The ruling in Makayla’s and Lisa’s case acknowledge that the right of a child to consent to their medical treatment is dependent on the child’s cognitive ability. The correlation in Makayla’s case between consent capacity and cognitive ability also runs in agreement with the mature minor doctrine. The mature minor doctrine was accepted by the Supreme Court of Canada in AC v Manitoba (Director of Child & Family Services) in 2009.[57] In the case of AC, the court concluded that a child may be afforded the ability to consent or refuse necessary medical treatment. [58] For the majority, Justice Abella stated:
“The result of this [case] is that young people under 16 will have the right to demonstrate mature medical decisional capacity. …If, after a careful analysis of the young person’s ability to exercise mature and independent judgment, the court is persuaded that the necessary level of maturity exists, the young person’s views ought to be respected.”[59]
Moreover, Justice Binnie wrote:
“At common law, proof of capacity entitles the “mature minor” to exercise personal autonomy in making medical treatment decisions free of parental or judicial control. …[A] young person with capacity is entitled to make the treatment decision, not just to have ‘input’ into a judge’s consideration of what the judge believes to be the young person’s best interests.”[60]
Given the aforementioned context, it is clearly illustrated that Makayla’s case accords with statute and case law pertaining to the capacity to consent to medical treatment and the mature minor doctrine. Accordingly, as Makayla’s case does not recognize an Aboriginal right in forgoing necessary treatment, it offers no support for the holding in Hamilton Health.
Reflecting on the Hamilton Health Case:
Reflection on J.J.’s case suggests that the Hamilton Health Aboriginal right to forgo medical treatment is flawed. In asserting an unqualified Aboriginal right to forego necessary medical treatment to pursue traditional treatment, many legal scholars and commentators, including Joshua Shaw of the Canadian Civil Liberties Association, question Justice Edward’s unprecedented decision in Hamiltion Health.[61] Cheryl Milne, director of the Asper Centre for Constitutional Rights at the University of Toronto, summarizes the peculiar nature of the ruling by stating,
“There really haven’t been court decisions like this relating to this kind of care that have favoured Aboriginal rights and traditional Aboriginal medicine.”[62]
A large component of the criticism is that the judge did not engage in an analysis of the best interests of the child, the test usually applied in child protection cases.[63] Instead, Judge Edward’s decision lacked consideration of any limits, with regard to the best interests of the child or otherwise. In citing a passage from Professor Hogg, a leading authority on Canadian constitutional law, Justice Edward stressed that section 35 lies outside the Charter and, accordingly, the section 35 right is not restricted by the “reasonable limits” of section 1.[64] However, Professor Hogg’s passage also clarifies that the section 35 rights are, “subject to reasonable regulation according to principles similar to those applicable to [section] 1.”[65] Furthermore, the Supreme Court of Canada in Sparrow and Van der Peet explicitly stress that reasonable limits on Aboriginal rights includes the prevention of harm.[66] In Sparrow, the first decision by the Supreme Court of Canada concerning section 35, the unanimous judgment of the court explicitly stated that the Aboriginal rights afforded under section 35 are not absolute and may be infringed for valid legislative objectives.[67] It was articulated that such objectives include those that “[purport] to prevent the exercise of … rights that would cause harm to the general populace or to Aboriginal peoples themselves.”[68] In line with such reasoning, Justice McLachlin provided the following qualification in Van der Peet, “Any right, Aboriginal or other, by its very nature carries with it the obligation to use it responsibly. It cannot be used, for example, in a way which harms people, Aboriginal or non‑aboriginal.”[69]As it is reasonable to assume that there may be harm to a child who forgoes necessary medical care, it is apparent that in postulating an unprecedented Aboriginal right to forgo necessary medical care without any consideration of limits is significantly flawed. At the very least, a deliberation with regard to the potential harm a child may endure was warranted. Yet, discourse into any ‘reasonable regulation’ remains completely absent from J.J’s case.
[1]Malette v Shulman (ONCA), 1990 C (available on http://canlii.ca/t/g1757). [2] Pursuant to subsections 4 (2) to (3) of the HCCA, there is a presumption that patients are capable of consent. [3]Joseph M Kaufert & John D O’Neil, “Biomedical Rituals and Informed Consent: Native Canadians and the Negotiation of Clinical Trust” in George Weisz, ed, Soc Sci Perspect Med Ethics, Culture, Illness, and Healing 16 (Springer Netherlands, 1990) 41 at 132. [4]“Consent to Medical Treatment | Policy | Policies & Publications | College of Physicians and Surgeons of Ontario”, online: <http://www.cpso.on.ca/policies-publications/policy/consent-to-medical-treatment>. [5]Ibid. [6]“Health Care Consent Act, 1996, SO 1996, c 2, Sch A”, online: <http://www.canlii.org/en/on/laws/stat/so-1996-c-2-sch-a/latest/so-1996-c-2-sch-a.html>. [7]note 4. [8]Ibid. [9]Ibid. [10]Ibid. [11]Children’s Aid Society of Toronto v MIL, 2008 ONCJ 528 at para 21. [12]“Judge to revisit his ruling that Aboriginal girl had right to pursue alternative cancer treatment”, online: Natl Post <http://news.nationalpost.com/news/canada/judge-to-revisit-his-ruling-that-aboriginal-girl-had-right-to-pursue-alternative-cancer-treatment>. [13]Ibid. [14] Please note that hereafter any reference to an Aboriginal right to forego life-and-death medical treatment to pursue traditional treatment refers to such right as defined by Hamilton Health [15]Tim Alamenciak, “Coroner probing death of Makayla Sault, Aboriginal girl who refused chemotherapy.”, Tor Star (21 January 2015), online: <http://www.thestar.com/news/gta/2015/01/21/coroner-probing-death-of-makayla-sault-six-nations-girl-who-refused-chemotherapy.html>. [16]“Makayla Sault case reignites debate over a minor’s right to refuse treatment”, online: <http://www.cbc.ca/1.2920245>. [17]Jerry A Coyne, “A Little Girl Died Because Canada Chose Cultural Sensitivity Over Western Medicine”, New Repub (21 January 2015), online: <http://www.newrepublic.com/article/120823/canada-lets-makayla-sault-die-leukemia-over-religious-sensitivity>. [18]Ibid. [19]“Makayla Sault’s parents speak out about daughter’s death”, online: <http://www.cbc.ca/1.2973938>. [20]Ibid. [21]Ibid. [22]“Makayla Sault, girl who refused chemo for leukemia, dies”, online: <http://www.cbc.ca/1.2829885>. [23]Ibid. [24]“Makayla Sault’s case raises questions about child welfare laws”, online: <http://www.cbc.ca/1.2658155>. [25]Ibid. [26]Ibid. [27]note 22. [28]Alamenciak, supra note 15. [29]note 24. [30]The girl’s name is protected by a publication ban. [31]Hamilton Health Sciences Corp v DH, 2014 ONCJ 603,123 OR (3d) 11, para 2. [32]Ibid. [33]Ibid, para 24. [34]Ibid. [35]Ibid, para 2. [36]“Ontario hospital cannot force chemo on 11-year-old native girl, court rules”, online: Globe Mail <http://www.theglobeandmail.com/life/health-and-fitness/health/cancer-patient-has-right-to-use-aboriginal-healing-instead-of-chemo-judge-rules/article21587859/>. [37]Hamilton Health, supra note 31, para 58. [38]note 36. [39]Ibid. [40]RSO 1990, c C-11. [41]“Aboriginal girl’s chemo case returns to court Friday”, Hamilt Spect (23 April 2015), online: <http://www.thespec.com/news-story/5570310-aboriginal-girl-s-chemo-case-returns-to-court-friday/>. [42]Hamilton Health, supra note 31, para 55. [43]Ibid, para 5. [44]Ibid, para 60. [45]Ibid, paras 74–77. [46]Ibid, para 81. [47]Ibid. [48]note 6. [49]In examination of the Sault case the author of this paper considers it is important to clarify to the reader that the analysis provided by this paper is limited to the facts that were available, as of the time this paper was written, through news websites as records of the CAS investigation are kept confidential and are not publically available. [50]“Makayla Sault’s case raises questions about child welfare laws”, online: <http://www.cbc.ca/1.2658155>. [51]Ibid, sec 4(2). [52]Coyne, supra note 17. [53]Colleen Sheppard, “Children’s Rights to Equality: Protection versus Paternalism” (1992) 1 Ann Health Law 197 at 205. [54]Ibid. [55]Ibid. [56]Ibid. [57]AC v Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 SCR 181 . [58]Shawn Harmon, “Body Blow” (2010) 4 McGill J Law Health 83 at 83. [59]AC, supra note 57, para 4. [60]AC, supra note 57. [61]“Protecting the health of the child is a justifiable infringement of Aboriginal right – CCLA Rights Watch … La veille sur les droits et libertés”, online: <http://www.ccla.org/rightswatch/2014/11/15/protecting-the-health-of-the-child-is-a-justifiable-infringement-of-aboriginal-right/>. [62]“Family of Aboriginal girl with cancer allowed to opt out of chemo”, online: Macleans.ca <http://www.macleans.ca/society/health/family-of-aboriginal-girl-with-cancer-can-opt-for-traditional-medicine-judge/>. [63]note 61. [64]Hamilton Health, supra note 31, para 61. [65]Ibid. [66]William C Sturtevant & Smithsonian Institution, Indians in Contemporary Society (Government Printing Office) at 175. [67]Ibid. [68]R v Sparrow, [1990] 1 SCR 1075, 3 CNLR 160 , para 1113. [69]R v Van der Peet, [1996]2 SCR 507, 4 CNLR 177 , para 280.