These are two articles on from AIDS Law newsletter and the other from the Faculty of Education, Simon Fraser University in British Columbia.
They provide an great commentary on the legal issues regarding minors and medical treatment. It adds credence to the position that the SCC should refuse the application for leave to appeal on the part of the 16 year old Calgary girl. The Supreme Court of Canada has already ruled on this issue and there is no factual or legal change or fault in law that requires the Supreme Court to review their previous decisions.
The links to the original articles:
http://www.aidslaw.ca/Maincontent/otherdocs/Newsletter/FallWin99/children.htm
http://www.educ.sfu.ca/cels/past_art26.html
Canadian Law on Minors and Medical Treatment (22)
Canadian law has strongly affirmed the right to only receive medical treatment after providing "informed consent." |
Informed Consent in Making Treatment Decisions
Canadian law has strongly affirmed the right to only receive medical treatment after providing "informed consent," as affirmed in two leading 1980 decisions of the Supreme Court of Canada. (23) The health-care worker who treats someone without consent may be civilly and criminally liable, and may also be subject to professional discipline.
As courts have ruled in subsequent cases, a person's right to give informed consent to medical treatment necessarily includes the right to refuse such treatment, even if that treatment would likely save their life. (24) Canadian courts have strongly stated this conclusion:
The right of a person to control his or her own body is a concept that has long been recognized at common law. The tort of battery has traditionally protected the interest in bodily security from unwanted physical interference.... No special exceptions are made for medical care, other than in emergency situations, and the general rules governing actions for battery are applicable to the doctor-patient relationship. Thus, as a matter of common law, a medical intervention in which a doctor touches the body of a patient would constitute a battery if the patient did not consent to the intervention. Patients have the decisive role in the medical decision-making process. Their right of self-determination is recognized and protected by law. (25)
The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self-determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the doctor, who ultimately must decide if treatment - any treatment - is to be administered. (26)
It should not be forgotten that every patient has a right to bodily integrity. This encompasses the right to determine what medical procedures will be accepted and the extent to which they will be accepted. Everyone has the right to decide what is to be done with one's own body. This includes the right to be free from medical treatment to which the individual does not consent. (27)
Not only is the right to grant or refuse consent to medical treatment established in Canadian common law; it has also been considered to be constitutionally protected, as the Ontario Court of Appeal indicated in Fleming. (28)
The common law also recognizes, however, that in emergency situations where immediate treatment is required and the consent of the patient (or their substitute decision-maker) cannot be obtained, treatment may be given without consent. (29) In some jurisdictions, provincial legislation also specifically sets out further definition of "emergency" circumstances in which treatment without consent may be permitted. However, in line with the doctrine of informed consent, the Ontario Court of Appeal has ruled that treatment cannot be given if the patient (or their substitute decision-maker) is competent and refuses treatment, even in an emergency situation. (30)
The doctrine of informed consent applies equally to adults and to minors. However, two difficult questions arise with respect to making decisions regarding minors' medical treatment: Who is entitled to consent to, or refuse, treament? And on what basis are such decisions to be made?
Who Makes Medical Decisions for Minors?
As a general rule, parents are recognized as those with a legal right to make medical decisions on behalf of their children not capable of making these decisions for themselves. This is recognized both in the common law (31) and in provincial statutes that deal with consent to health care and substitute decision-making (unless a court has expressly appointed someone else under the provisions of such a statute). (32)
Parents also have legal obligations to ensure that their minor children receive required medical care; failing to do so may result in both civil liability for negligence and criminal liability for the offence of "failing to provide the necessaries of life." (33) In every jurisdiction, legislation also provides that child protection authorities may seek custody of a child in need of protection as a result of parental conduct or may seek a more limited authority, such as the authority to make medical treatment decisions on behalf of the child in place of the parent(s). Finally, courts have an inherent parens patriae jurisdiction to safeguard the well-being of "persons who are not able to take care of themselves." (34) Canadian courts have upheld such legislative or judicial interference with "parental rights" as being constitutionally permissible (see discussion below). (35)
However, both provincial legislation (36) and courts have recognized that some minors may in fact be capable of making their own medical decisions. In keeping with the respect for personal autonomy, the common law doctrine of the "mature minor" holds that a minor can legally consent or refuse a given medical treatment if they can understand and appreciate the nature and consequences of the procedure and their decision. (37) In the case of a mature minor, parental consent is not required, nor can the parent's refusal of a given treatment (legally) override the mature minor's decision. Nor, in the case of a mature minor, can any other person, such as child protection authorities or the court, supersede the minor's treatment decisions: "at common law a mature minor is 'able to take care of themselves' and may make decisions about medical treatment. In such a case, there is no room for a court to exercise its parens patriae jurisdiction." (38) In several of these cases, the mature minor's decision has been respected where their refusal of treatment was based on religious beliefs, such as teenage Jehovah's Witnesses refusing blood transfusions. (39) In another case, the minor refusing a transfusion on religious grounds was deemed to be incapable of making this decision. (40)
The "Best Interests of the Child"
In those cases where a minor is not "mature" enough to be capable of making their own medical decisions, it is the substitute decision-maker (such as a parent) who may give or refuse consent to any proposed treatment. Not surprisingly, the Supreme Court of Canada has clearly stated that such decisions must be based solely on the "best interests" of the child. (41) But in some cases, there is strong disagreement between health professionals and the decision-maker as to the appropriate treatment and what constitute the child's "best interests." As Gilmour points out in her review of the case law: "Difficulties arise not with the basic decision-making principle, which directs that the decision shall be made in the child's best interests, but rather, in determining whose understanding of 'best interests' shall prevail and the content to give that standard." (42)
In 1995, in RB v Children's Aid Society of Metropolitan Toronto, (43) the Supreme Court of Canada considered the question of whether Jehovah's Witness parents could refuse to permit their infant to receive needed blood transfusions. On short notice, the lower court had granted temporary wardship of the infant to child protection authorities; surgery (involving a transfusion) was performed; the court then terminated the wardship and returned the infant to her parents. The parents appealed these court decisions, arguing that their Charter rights to freedom of religion (s 2(a)) and to liberty (including parents' rights to choose medical treatment for their children) (s 7) had been infringed.
The Supreme Court recognized that parents' interest in caring for a child is an interest of "fundamental importance" and is protected by the right to liberty under section 7 of the Charter, but that this is not an "unconstrained freedom" and the state may intervene to protect a child if necessary. In this case, the Court found that while the parents' liberty had been infringed by overriding their right to refuse medical treatment for their child, this had been done "in accordance with the principles of fundamental justice," which included the protection of a child's right to life and to health.
The Court also accepted that the right of parents to raise their children according to their religious beliefs (including choosing or refusing medical treatments) is a fundamental aspect of freedom of religion, and that their Charter rights in this respect had been infringed. However, the Court concluded that this infringement was justified (under s 1 of the Charter): protecting children is a sufficiently important objective to warrant interfering with parents' rights; the process set out by the legislation in question was carefully crafted to ensure this infringement of parents' rights only where necessary to protect the child's health, and provided procedural protections for parents who wished to contest the attempt by child protection authorities to supersede parental authority over medical decisions.
While there have been other cases in which courts have considered the question of parental refusal to medically recommended treatment based on religious belief, (44) in other cases there is no such dimension to the disagreement over the appropriate treatment. (45) And, as Gilmour points out, in some cases there is not always a clear indication as to the "right" treatment:
Where the benefits of treatment are not so obvious or unequivocal as they are with relatively simple procedures such as blood transfusions, or where the risks are significant, then decision-making becomes immeasurably more difficult both for the child's parents and for courts. Which reasons put forward by which families should be accepted and which rejected? And how to decide? Cases to date have emphasized one aspect of the determination - the medical assessment of the benefits and burdens of treatment and non-treatment, and medical practice. (46)
What the Supreme Court's decision in RB, and court decisions in other cases, confirm is that decisions about restricting parental control over their children's medical treatment are essentially questions to be decided on the basis of the facts of a particular case, as well as public policy considerations. As LaForest J wrote for the plurality in RB:
State interference in order to balance the rights of parents and children will arise only in exceptional cases. In fact, we must accept that parents can, at times, make decisions contrary to their children's wishes - and rights - as long as they do not exceed the threshold dictated by public policy, in its broad conception. (47)
In the RB case, Gilmour summarizes the Court's reasoning as follows:
In another case, a court upheld a parent's refusal of chemotherapy for her child despite doctors' recommendations and an application by the hospital for court authorization to treat the child. In Couture-Jacquet, the Qubec Court of Appeal based this decision on the small chance of success of the treatment, as well as the significant physical damage and suffering it would cause. (49)Quoted footnotes: 22. For an excellent discussion of minors and medical treatment in Canadian law, see J Gilmour. Minors. In: J Downie, T Caulfied (eds). Canadian Health Law and Policy. Markham: Butterworths Canada Ltd, 1999, at 179-216. 23. Hopp v Lepp, [1980] 2 SCR 192; Reibl v Hughes, [1980] 2 SCR 880. 24. For example, see: Rodriguez v BC (AG), [1993] 3 SCR 519; Nancy B v Htel Dieu de Qubec (1992), 86 DLR (4 th ) 385 (Que SC); Walker (Litigation Guardian of) v Region 2 Hospital Corp (1994), 116 DLR (4 th ) 476, [1994] NBJ No 242 (QL) (NBCA); Re K(LD) (1985), 48 RFL (2d) 164 (Ont Prov Ct). 25. Malette v Shulman (1990), 37 OAC 281 (CA) at 285. 26. Fleming v Reid, (1991) 82 DLR (4 th ) 298 (CA) at 309-310. 27. Ciarlariello v Schacter, [1993] 2 SCR 119, cited in Walker, supra, note 24. 28. Fleming, supra, note 26 at 312-313. 29. Walker, supra, note 24; Malette, supra, note 25; Marshall v Curry, [1933] 3 DLR 260 (NSTD). 30. Malette, supra, note 25. 31. RB v Children's Aid Society of Metropoliton Toronto, [1995] 1 SCR 315. 32. Eg, Health Care Consent Act, 1996, SO 1996, c 2 (Sch A), s 20. 33. Criminal Code, RSC 1985, c C-46, s 215. 34. Beson v Director of Child Welfare (Nfld), [1982] 2 SCR 716; E v Eve, [1986] 2 SCR 388; Fleming, supra, note 26 at 315-316; Walker, supra, note 24 at QL para 29; Ney v Canada (AG) (1993), 79 BCLR (2d) 47 (SC); Kennett Estate v Manitoba (AG) (1998), 129 Man R (2d) 244 (CA). 35. RB v Children's Aid Society of Metropolitan Toronto, supra, note 31; Alberta (Director of Child Welfare) v Harrison, infra, note 44. 36. Eg, Medical Consent of Minors Act, SNB 1976, c M-6.1. 37. Walker, supra, note 23; Johnston v Wellesley Hospital (1970), 17 DLR (3d) 139 (HC); Ney, supra, note 33; Re AY (1993), 111 Nfld & PEIR 91; C(JS) v Wren, [1987] 2 WWR 669 (Alta CA); Re K(LD), supra, note 23. 38. Walker, supra, note 24 at QL para 26. 39. Walker, supra, note 24; Re AY, supra, note 37; Re K(LD), supra, note 24. 40. H(T) v Children's Aid Society of Metropolitan Toronto (1996), 138 DLR (4 th ) 144 (Ont Gen Div). 41. E v Eve, supra, note 34. 42. Gilmour, supra , note 22 at 200. 43. RB, supra, note 31; 78 OAC 1. 44. Alberta (Director of Child Welfare) v Harrison, [1996] AJ No 501 (Alta QB). 45. Re Superintendent of Family & Child Service and Dawson (1983), 145 DLR (3d) 610 (BCSC); New Brunswick (Minister of Health & Community Services) (1990), 70 DLR (4 th ) 568 (NBQB); Re Goyette: Centre des Services Sociaux du Montral, [1983] C 429 (Que SC); Children's Aid Society of Peel (Region) v B(C), unreported, 9 February 1988, Karswick PCJ, (988), ACWS (3d) 425 (Ont Prov Ct), cited in Gilmour, supra, note 22 at 199; Saskatchewan (Minister of Social Services) v P(F) (1990), 69 DLR (4 th ) 134 (Sask Prov Ct). 46. Gilmour, supra, note 22 at 201. 47. RB, supra, note 31 at 373. 48. Gilmour, supra, note 22 at 198. 49. Couture-Jacquet v Montreal Children's Hospital (1986), 28 DLR (4 th ) 22 (Que CA). *********************************************Second article from the Simon Fraser Faculty of Education site: The Law ConnectionEven with the dangers of transmitting infection now identified in the blood supply system, blood transfusions are a standard form of medical therapy, enjoy wide public acceptance, are not particularly invasive, do not generally cause major side effects, and are often necessary to preserve health and even life. Given its standard nature, the small degree of physical risk associated with a transfusion and the major risks anticipated from refusing it, and given strong medical opinion supporting the need for transfusion and wide societal acceptance of it as a form of treatment, the Court was not prepared to countenance the parental refusal. The life and physical health of the child clearly prevailed in the determination of the child's best interests. (48)
- Fundamental Freedoms This article briefly examines recent Supreme Court of Canada decisions relating to section 2 of the Charter which provides citizens with the right to:
- (a) freedom of conscience and religion;
- (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
- (c) freedom of peaceful assembly; and
- (d) freedom of association.