Who should make medical decisions for a child?
This was the very question considered in the Judgment of Justice Edward dated November 14, 2014.
Hamilton Health Sciences Corporation (HHSC) brought forward an Application for the court to find J.J., an 11 year old child with leukemia, in need of protection under the Child and Family Services Act. The Application was brought against the child’s parent and the Six Nations of the Grand River Child and Family Services Department and Brant Family and Children’s Services (the society). If successful in their Application, HHSC would have been placed in the decision making role, instead of the child’s parents.
The parties and their positions
J.J. & her parents, D.H. and P.L.J
J.J. is a member of the Six Nations of Grand River. J.J.’s mother, D.H., withdrew her consent for the continuation of J.J.’s chemotherapy treatment, in favour of treatment with traditional aboriginal medicines. J.J. did not disagree with her mother, who was her substitute decision maker. It was J.J’s parents’ position that they should be able to decide what is best for their child. Parents are placed in the role of substituted decision makers when their children are minors.
HHSC was overseeing J.J.’s treatment. When J.J. was diagnosed, the medical team assigned to her, concluded that chemotherapy treatment was necessary and with such treatment, this leukemia had a 90% cure rate.
HHSC found the withdrawal of consent to be neglectful and reported this decision to the society, with the hope they would intervene and permit the treatment.
Doctors provided evidence to support their position that chemotherapy was necessary and that J.J. did not have the capacity to make such a decision regarding her treatment.
HHSC then moved to have the court deem the child in need of protection and order the proposed treatment after the society declined to become involved.
The society investigated the situation and spoke with all relevant parties. They determined J.J. was not in need of protection. They took the position that this Application should be dismissed as this was an issue that should be before the Consent and Capacity Board to determine if J.J. had capacity to decide for herself regarding medical treatment.
Justice Edward’s had to decide if there were reasonable grounds to believe J.J. was in need of protection. If that answer was “yes”, J.J. would have had to be removed from her parents’ care and placed in a safe place for the continuation of chemotherapy.
Aside from medical evidence, Justice Edward considered the beliefs of J.J. and her family as part of the Six Nations. The evidence indicated that J.J. and her family are “traditional longhouse believers who integrate their culture into their day-to-day living…..and their belief that traditional medicines work, is an integral part of their life.” These facts required the court’s consideration of subsection 35 (1) of the Constitution Act, 1982,
which states “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
The court concluded that “D.H.’s decision to pursue traditional medicine for her daughter is her aboriginal right. Further, such a right cannot be qualified as a right only if it is proven to work by employing the western medical paradigm. To do so would be to leave open the opportunity to perpetually erode aboriginal rights.”
The court found that J.J. was not a child in need of protection and that therefore, her mother, D.H. had the right to choose what she felt was an appropriate course of treatment for her child.
Lindsey D. Mazza is an associate lawyer at Ross & McBride LLP, practicing in the Family Law Group.