health week
Tuesday, October 27, 2015 13
The Intersection between Consent to Medical
Treatment and Aboriginal Rights for Children
T
amritpal sandhu › contributor
he righ t to be free from
non-consensual
medical
treatment is deeply entrenched
in Canadian case law and
statute. Consensual medical treatment
embodies the principles of individual
autonomy and self-determination. In
non-emergency situations, all medical
treatments require informed, capable,
and voluntary consent that is free from
fraud and misrepresentation. If a patient
is capable, the patient is entitled to make
the treatment decision. If a patient is
assessed to be incapable, the decision
regarding treatment is deferred to a
substitute decision maker.
Within the context of medical care for a minor,
the Health Care Consent Act does not define the
age at which a minor may exercise consent and,
accordingly, the capacity to exercise consent varies
on a case-by-case basis. Physicians are required to
make a decision regarding the consent capacity for a
minor in a similar manner they would for an adult.
Factors that are considered include the cognitive
ability of the specific individual and the complexity
of the particular decision to be made. As such, it is
well understood that an individual may have the
capacity to consent to certain treatment but not to
others, for instance one may be able to consent to the
treatment of a broken leg but not to the treatment
for lung cancer. However, in general, when a minor
requires necessary medical treatment neither the
minor nor a substitute decision maker has the right to
refuse the treatment. It is in such circumstances that
disputes regarding the protection of liberty, freedom
of expression, security of the person, and religious
freedom often arise. Two recent cases in Ontario
of Aboriginal children forgoing chemotherapy to
pursue traditional treatment made national headlines
and sparked considerable debate in the media. Both
these cases illustrate the relatively rare examples
where a child is allowed to forego necessary medical
treatment, even if the decision will likely increase
the likelihood of the child’s death. Hamilton Health
Sciences Corp v DH [Hamilton Health] is particularly
significant because the court purports to carve out an
unprecedented Aboriginal right for children to forego
necessary medical treatment to pursue traditional
treatment. By reflecting on the two Aboriginal
children cases, and the practices of the Children’s
Aid Society [CAS], this paper suggests that Aboriginal
children should not have the Aboriginal right defined
in Hamilton Health.
Part I of this paper will provide a brief contextual
ê Photo credit: Toronto Star
look into the two 2014-2015 cases of Makayla Sault
and J.J.. Part II will then reflect on the two cases to
suggest that the Hamilton Health Aboriginal right to
forgo medical treatment is flawed. Part III will then
further support the argument against the Aboriginal
right expressed in Hamilton Health by reflecting on
the CAS’ established practices. Part IV will reflect on
a recent clarification provided to Hamilton Health.
Finally part IV will provide a brief summary.
Part I: A contextual look into the case of
Makayla Sault and J.J.
The two aforementioned recent cases relate to
Makayla Sault and J.J., two girls who were diagnosed
with acute lymphoblastic leukemia but prematurely
terminated their chemotherapy treatments. Makayla
was the first of the two girls to be diagnosed with
acute lymphoblastic leukemia in March of 2014.
Physicians estimated that with chemotherapy her
chance of survival was approximately 75 percent.
Nevertheless, following approximately three months
of chemotherapy at the McMaster Children’s Hospital
in Hamilton, Makayla stopped her chemotherapy
treatment because she believed that the treatment
was more detrimental than beneficial to her wellbeing. Makayla was able to clearly articulate to
authorities that she understood the fatal nature of her
condition and she preferred death to the continuation
of chemotherapy. Instead of chemotherapy, Makayla
sought treatment from her family physician, an
oncologist at the McMaster Children’s Hospital, and
a traditional medicine healer. Also, Makayla attended
the Hippocrates Health Institute in Florida. Her
parents supported her decision to forgo chemotherapy
but the hospital did not. Thus, the hospital referred
her case to Brant Family and Children’s Services
(BFCS). BFCS conducted an investigation, which
included consideration of Makayla’s First Nations’
culture and the active involvement of her Aboriginal
Band. Makayla’s Band supported her decision. BCAS’
investigation concluded that Makayla was not a
child in need of protection and, accordingly, they
would not compel her to continue the chemotherapy
treatment. No further legal action was taken. Makayla
died in January of 2015. Her parents suggest that her
death is attributable to the severe side effects of the
chemotherapy, while some medical experts suggest
that her death was caused by cancer. An inquiry into
the cause of her death is forthcoming.
J.J.
was
diagnosed
with
acute lymphoblastic leukemia in August of 2014.
She was given a cure rate of approximately 90 to 95
percent with chemotherapy. Unlike Makayla, as J.J.
did not understand the nature of her treatment and
“deferred all discussions to her mother”. Accordingly,
J.J. was determined by the hospital to be incapable of
giving consent to treatment and her mother, D.H.,
was deemed to be her substitute decision maker. J.J.
completed only 11 days of chemotherapy before D.H.
decided to discontinue J.J.’s chemotherapy treatment
to seek traditional treatment at the Hippocrates
Health Institute in Florida. D.H.’s decision was
rooted in her strong faith in her Native culture
and her belief that pursuing traditional treatment
rather than chemotherapy would better improve
J.J.’s c