Canada: Update: Recent Case Regarding Parent Refusing Chemotherapy For First Nations Child In Favour Of Traditional Medicines: What Are The Implications For Health Care Providers?

Hamilton Health Sciences Corporation v. D.H., 2014 ONCJ 603, Ontario Court of Justice (G.B. Edward J.), 14 November 2014

On April 24, 2015, on consent, the Attorney-General of Ontario was added as a party to this proceeding, following which a Joint Submission from all parties was accepted by the Judge, requesting a clarification of the decision, which resulted in the addition of two further paragraphs to the reasons.

BACKGROUND

JJ, an 11 year old Mohawk girl was diagnosed with acute lymphoblastic leukemia (ALL). JJ's mother, DH, is her substitute decision maker (SDM). With chemotherapy, JJ was assessed to have 90-95% probability of survival. Pediatric oncologists are not aware of any child with ALL surviving without chemotherapy. JJ was treated with chemotherapy for a number of days before her mother withdrew consent, having decided that she wanted to pursue traditional aboriginal medicine to treat her daughter's cancer.

A report was made by the pediatric oncologist to the local children's aid society, Brant Family and Children's Services, as it was believed that this child was in need of protection as defined by subs. 37(2)e of the Child and Family Services Act (CFSA) ("the child requires medical treatment to cure, prevent or alleviate physical harm or suffering, and the child's parent refuses to consent to treatment"). The Brant CAS decided not to intervene which led the Hospital to bring an application under the CFSA to try to compel the CAS to intervene such as to bring the child back into chemotherapy treatment as soon as possible. Brant CAS opposed that application, as did the Six Nations Band, for different reasons. On the first day of the hearing of the application, the Judge issued an order that the child not be removed from Ontario without further order of the court; however, the child's mother took her to Florida that same day to attend an alternative treatment facility, and the hearing proceeded in their absence.

In a further hearing before the same Court in April, 2015, it was disclosed that the child's cancer had relapsed, and that her family had decided that chemotherapy was the next best option. The child was in the care of a integrative health care team consisting of both pediatric oncologists and Haudenosaunee traditional healers.

WHAT THE DECISION DETERMINED:

There are essentially two different parts to the decision, the first dealing with the important process issues as between the Hospital and the CAS, and the second with the constitutional law and aboriginal rights issues raised by the Band. The Hospital was wholly successful in respect of the first part of the decision, and it was untouched by the recent clarification.

1. The Process Issues: The CAS tried to argue that this was not a child protection case, because the mother was not "refusing treatment", but rather, was opting for another form of treatment with which the physicians disagreed. Hence, they argued that whether or not the mother's decision was in the best interests of the child was a Health Care Consent Act (HCCA) issue which the physicians ought to have brought before the Consent and Capacity Board (CCB) for a determination, not to the CAS and/or to the Court under the CFSA. They also argued that there was insufficient evidence that the child was not herself capable of making her own decisions with respect to the treatment of her leukemia. These arguments were unconnected to the First Nations status of the family.

The Judge rejected the CAS arguments, and accepted that the mother's decision to discontinue chemotherapy is a child protection issue and that its proper adjudication was before the Ontario Court of Justice under the CFSA. This included a finding by the Court confirming that the child was herself incapable of making the decision to refuse chemotherapy. He accepted the medical evidence as to chemotherapy's effectiveness, and acknowledged the absence of evidence as to the efficacy of the alternative and traditional medicines.

Because of what the judge went on to decide, he stopped short of finding that in fact this child was in need of protection, for no expressed reason other than the fact that her mother was making decisions in accordance with her native Mohawk (Haudenosaunee) culture. He did not appear to engage in an analysis of what is in the best interest of JJ, the test usually applied in child protection cases.

2. The Aboriginal Rights Issue: The judge found that the practice of traditional medicine forms an integral element of the Six Nations' (the band to which JJ's family belongs) culture and that JJ's mother was deeply committed to her aboriginal culture and the practice of traditional medicine. He found that the decision to pursue aboriginal medicine for JJ is her mother's constitutionally protected right, pursuant to s. 35 of the Constitution Act, without limitation.

It is only with respect to the second issue that most legal commentators questioned the Judge's unprecedented decision. It was concerning that the Court appeared to have considered only the mother's rights and not the child's best interests.

It was anticipated that in this or future cases, this Judge's views on this aboriginal right would be challenged in higher courts. It was argued that even if the pursuit of traditional medicine is an aboriginal right recognized and affirmed by s. 35 of the Constitution, it is subject to reasonable limits such that it cannot be used to trump an incapable person's right to life or the protections under the CFSA afforded to a child in need of treatment.

It was to these concerns that Justice Edward's recent clarification addresses itself. It has now been clarified that the law remains the same, ie, that with respect to any issue involving the health of a child – any child – that the child's best interests are always paramount. It has preserved the finding that the right to use traditional indigenous medicine is constitutionally protected, but it is not absolute when it comes to the treatment of children. We believe that this means that from now on, every case in similar circumstances must still be determined on its own facts. It also implies that the best decision that an aboriginal parent can make for a child with cancer is to pursue BOTH indigenous and conventional (western) treatment. (On the evidence in this case, the Judge formed the belief that the mother always did intend to bring the child back for chemotherapy if she relapsed.)

The following are some guiding principles for health care providers:

  • The constitutional right which has been protected and affirmed in this case is solely that of an aboriginal person to practice traditional (indigenous) medicine. It does not address any other situation.
  • It remains the case that where a parent is refusing required medical treatment for an incapable child – any child – under the age of 16, this is a matter which is reportable to the CAS. Where an aboriginal family is involved, the CAS, working collaboratively with the health care team, should carefully investigate, including whether the alternative treatment plan, if any, is actually rooted in the exercise of an aboriginal right. In our opinion, it would be wrong to assume that just because a child is a member of a First Nations family, that a parent's refusal of required treatment does not trigger the threshold duty to report the situation to the CAS. It is also not correct for a CAS to suggest that it has no role in these matters, or that the CCB has primary jurisdiction.
  • Hospitals are to be encouraged to and commended for their efforts to reach out to and work collaboratively with the aboriginal community, including providing integrative medical care for aboriginal patients and their families.
  • When a parent refuses or withdraws consent to a required treatment, it is wise to ensure that there is clear documentation of the determination, formal or informal, of the child's capacity or incapacity to make the decision, even where it is otherwise obvious.
  • In cases where the incapable person is an adult age 16 or over, and their SDM is refusing required medical treatment, a health care practitioner should still consider an application to the CCB if this decision is thought to be contrary to the patient's prior capable wish or, in its absence, the patient's best interests (which includes a consideration of the patient's values and beliefs). Where the SDM's decision is based, however, on a choice to pursue aboriginal traditional medicine, we can anticipate that the CCB would be cautious in light of Judge Edward's decision.

The bottom line is that this decision does not change the obligations of health care providers. If a physician believes that the treatment decisions of a SDM places a child at medical risk, and thus a child in need of protection, he or she has the obligation to make a report to CAS. At that point, it is the responsibility of the CAS, as always, to conduct an investigation to determine whether the child is in need of protection and to bring the matter before the court if appropriate. Judge Edward's decision essentially affects the decision(s) the CAS may come to only if the child's family is aboriginal and the SDM is opting out of the physician's proposed treatment plan to pursue traditional aboriginal medicine.

To read the original decision in this case, please click here.

To read the recent Joint Submission, please click here.

To read the Judge's Endorsement dated April 24, 2015, please click here.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions