What happens when a child under 16 refuses a medically necessary procedure that may save her life in order to uphold her strongly held religious beliefs? Until recently, the law was not clear as to whether paternalistic child protection legislation violated the Charter of Rights and Freedoms. The Supreme Court of Canada has, however, now set out what factors the courts need to consider in determining whether a child under 16 is capable of making their own medical decisions.
In 2006, A.C. was admitted to hospital. She was 14.5 years old and suffering from lower gastrointestinal bleeding caused by Crohn's disease. As a devout Jehovah's Witness, she had previously signed an advance medical directive, which stated that she should not be given blood under any circumstances. Upon her admittance to the hospital, however, her doctor diagnosed her internal bleeding as life-threatening and believed that a blood transfusion was medically in her best interests. When A.C. refused the blood transfusion, the Director of Child and Family Services (the "Director") apprehended her as "a child in need of protection" and sought treatment under the Manitoba Child and Family Services Act (the "Act"), which provides that a court may order treatment that it deems to be in a child's best interests. This was done despite the fact that the hospital made 2 psychiatric reports that both indicated that A.C. had the capacity to make her own medical decisions.
The Director convinced the Manitoba court that treatment was necessary and approximately 6 hours after the court made the treatment order, the hospital successfully administered a blood transfusion to A.C. and she eventually recovered from her condition. Despite the fact that the blood transfusion had already occurred, A.C.'s parents appealed the court's order, arguing that the Act was unconstitutional because it infringed A.C.'s Charter rights of freedom of religion, life, liberty and security to the person, and equality. When the Manitoba Court of Appeal upheld the decision, A.C.'s parents appealed to the Supreme Court of Canada.
SUPREME COURT OF CANADA DECISION
At the Supreme Court of Canada, the majority of the court attempted to strike a balance between the need for protection of vulnerable children and the right of mature adolescents to participate meaningfully in decisions relating to their medical treatment. In doing so, the majority held that the Act is constitutional only if it is "interpreted in a way that allows an adolescent under the age of 16 to demonstrate sufficient maturity to have a particular medical treatment decision respected". In doing so, the majority redefined the process and factors that must be considered in determining the best interests of the child -- focusing primarily on the maturity of children.
Instead of there being a presumption that children under 16 automatically do not have the capacity to make decisions about medical procedures, a child's maturity needs to be scrutinized on a case-by-case basis, having regard to the unique situation of that particular child, including the nature of the treatment decision and the severity of its potential consequences. Factors that need to be considered in determining whether a child's wishes reflect true, stable and independent choices, include:
The majority went on to state that:
The more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight that will be given to his or her views when a court is exercising its discretion [to require medical procedures]. ... If, after a careful and sophisticated analysis of the young person's ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent's views ought to be respected.
It is difficult, however, to see how any forced medical procedure that is contrary to one's wishes would not inevitably violate their life, liberty and security of the person, and potentially religious beliefs if applicable. While violations may be addressed by Section 1 of the Charter, which provides that a violation can be "saved" if it is a reasonable limit that is demonstrably justified in a free and democratic society, the majority do not see the need, surprisingly to consider this.
As such, while this decision does not fully resolve all of the issues and will likely frustrate some people for various reasons, it does provide a better framework than what was in place before, providing greater opportunity for the opinions and decisions of mature children to be respected.
This article was written by Ian Moes, a lawyer who practices at the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other legal matters, please contact us at 604-864-8877.