Law Times

Law Times • augusT 24/31, 2009 NEW An online resource tool 1.800.263.3269 Bestcase earlug.indd 1 3/26/08 11:52:01 AM Focus On HEALTH/LIFE SCIENCES LAW Rigid age definitions of 'children' in child protection statutes can be problematic SCC sets the bar for medical intervention W BY I. JOHN HARVEY For Law Times hen is a child under 16 able to make cog- nitive and defi nitive decisions about their medical care when it's a case of life or death? Under s. 25(9) of the Manito- ba Child and Family Services Act if the child is over 16 their own wishes must be taken into consid- eration but if they are under that threshold an order under s. 25(8) can be made to take the child into care regardless of their own beliefs of religious convictions. Such was the situation present- ed to the Supreme Court of Cana- da in A.C. v. Manitoba (Director of Child and Family Services) as part of an appeal from the Manitoba Court of Appeal. Th e appeal court held 6-1 that the section of the Child and Family Services Act was constitutional. But in making the fi rst ruling of its type, the court left the door open for arguments around when a child is old enough, mature enough, and cognitive enough to make deci- sions regardless of their age. Th e issue involved A.C. who was admitted to a Winnipeg hospital on April 12, 2006 with lower gastrointestinal bleeding caused by Crohn's disease. She was 14 years, 10 months old. She is a devout Jehovah's Wit- ness and several months earlier had signed a medical directive not to be given blood under any circumstances. However, her doc- tor believed internal bleeding cre- ated a serious risk to her health and perhaps her life. She still refused consent for a transfusion. A psychiatric exam was or- dered and she was reported to be "bright and cognitive" but doctors contacted the director of Manitoba Child and Family Services saying unless she had a transfusion she risked death. An order placing her in care on the grounds that treatment was in "her best interests" was made and she was given a transfusion. Her parents subsequently ap- pealed the order, arguing it was an unjustifi ed infringement of her rights under ss. 2(a), 7, and 15 of the Charter of Rights and Free- doms. Th e Court of Appeal upheld the section as constitutional. It's a watershed decision that will have a ripple eff ect on many pro- vincial agencies, says David Day of Lewis Day in St. John's, N.L., who acted for A.C. before the Supreme Court. He notes Ontario, Nova Scotia, Prince Edward Island, and the Yukon will see limited eff ect because they have specifi c legisla- tion in place to ascertain capacity of persons of any age. "Th e decision helps agencies responsible for child welfare across Canada," he says, but notes it has come at a heavy cost. "Emotionally, to be quite can- did, A.C. told me, and confi rmed in documentation before the Su- preme Court of Canada, that the administration of blood transfu- sions to her was akin to descrip- tions she had read by persons who had been 'raped,'" he says. A.C. was discharged on May 4, 2006. She has also fully recov- ered from gastrointestinal surgery, performed without blood transfu- sions, on April 22, 2006. "Because the Manitoba direc- tor of Child and Family Services informed me that in the event A.C. experienced recurrence of her health-care problem, he would again apprehend her and seek an- other treatment order, A.C. relo- cated from Manitoba to Ontario [on May 1, 2007]. In Ontario, she established a patient-physician relationship which respects her treatment wishes. Since April 2006, she has not experienced any health-care problems." Th e one bright spot for A.C. and Day was Justice Ian Binnie's scathing dissent in which he ar- gued once the psychiatric assess- ment had determined A.C. to be fully cognitive that the process should have gone no further. Day points to Binnie's dissent as the most sympathetic summary of his client's case and notes that although Justice Rosalie Abella wrote the majority decision, she agreed on one of the key points. "A.C. argued to strike down the treatment order provisions of the Manitoba Child and Family Ser- vices Act because they wholly dis- regard the wishes of minors," Day says. "Th ere was no opportunity to establish competence, and even if competent, no respect for their treatment choices." In addition, the court was asked to "interpret those provisions so that minors are entitled to estab- lish competence and, if competent, receive respect for their treatment choices," he says. Binnie agreed with the fi rst premise while Abella, supported by three judges (making four of the seven judges who heard the appeal), agreed with the second. "Th is is why A.C. was granted costs throughout," he says. "Th e formal appeal judgment states the appeal was dismissed. Th is is because the written issues be- fore the court related only to the fi rst part. Nonetheless, four of the seven judges, in their written reasons for the formal judgment, accepted A.C.'s alternate argument in the second part. Th e written reasons, not the formal judgment resulting from the reasons, will be most important to agencies." Day cites the key paragraphs of the decision as those dealing The Supreme Court has left the door open to arguments about when a child can make their own health-care decisions. with claims to be a "mature mi- nor" — i.e., by age defi nition a child — is entitled to respect for his or her wishes by the treating physician, if, in the physician's judgment, the minor's medical decisions will not gravely endan- ger the child's life or health. Also, he says, in all other cases, which the court described as "very limited class of cases," the child is entitled to establish, in court, that he or she is competent to make the involved health-care decisions. As such, he says, factors to be applied by the court to ascertain such competence, should be based on whether the minor understands the information relevant to treat- ment he or she chooses and appre- ciates its consequences; whether the minor's views are "stable and a true refl ection of his or her core values and beliefs;" and whether the mi- nor's "lifestyle, family relationships, and broader social affi liations [im- pact] on his or her ability to exer- cise independent judgment." Day says: "Th e court accepted A.C.'s argument that competence for one health-care treatment may not suffi ce as competence for an- other, therefore the court recog- nizes the need for a sliding scale of decision-making autonomy." "Th e decision respects indi- vidual rights of minors by entitling them to establish competence, to deserve respect for their medical treatment decisions, and, if they establish competence, their treat- ment choices must be respected." Since 1987, Day has acted in 41 cases for young people around treatment choices. Applications for leave to appeal in three of the cases — one from Newfoundland and two from Al- berta — in which he acted were denied. He says A.C. was the fi rst time the SCC addressed the issue of bloodless treatment preferences. "Not to understate the eff ect of the decision, globally, the SCC recognized that acquisition by a young person of maturity — e.g., competence to make their own medical treatment decisions — is not a midnight epiphany; a term I used in oral argument," he says. "Rigid age defi nitions of 'children' in child protection statutes over- look the intellectual and emotional development of young people." 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