Toward a Healthy Society

LexView 66.0 - A Child's Right to Medical Self-Determination

From the Archived "LexView" Series

Do mature children have a right to determine their medical treatment, even if the consequences of refusing treatment may cause harm or even death? Will the right to liberty and security of the person and freedom of religion allow mature children to refuse treatment? How will the state make a determination of when it should override self-determination by mature children?

A.C. v. Manitoba (Director of Child and Family Services)
2009 S.C.C. 30
Supreme Court of Canada

Date of Decisions: June 26, 2009
Date of Issue: October 20, 2009

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary

Key Terms:

Religion; freedom of conscience and religion; section 2(a); liberty; security of the person; s. 7; equality; age discrimination; section 15; the Charter of Rights and Freedoms; personal autonomy; mature minor; medical treatment; children; consent; bodily integrity

Summary of Facts:

A.C. was 14 years and 10 months old when admitted to hospital for gastrointestinal bleeding caused by Crohn's disease. As a devout Jehovah's Witness, she signed an advance medical directive that she not be given blood under any circumstances. Her doctor believed that there was an imminent and serious risk to her health if she did not receive blood. Her life may have been in danger.

A.C. refused to consent to receive blood, despite the doctor's recommendations. She underwent a psychiatric assessment. A report was completed by three psychiatrists, finding that she had no psychiatric limitations and understood "the reason why a transfusion may be recommended, and the consequences of refusing to have a transfusion".

The Director of Child and Family Services apprehended her as a child in need of protection under the Manitoba Child and Family Services Act. A court order was sought under that legislation to compel a blood transfusion. Subsections 25(8) and (9) of the Child and Family Services Act provides that the court may authorize medical treatment for a child under 16 years of age when "in the best interests of the child". For children 16 and older, the child's consent is required unless it is found that that the child is unable to understand the relevant information or appreciate the consequences of refusing the treatment.

Justice Kaufman dealt with the court application, in which A.C. did not participate. Kaufman J. dealt with the application on the assumption that A.C. had the capacity to make medical decisions, ordering the transfusion. He based the decision as being in the "best interests of A.C." relying on medical evidence that she was "in immediate danger as the minutes go by, if not [of] death, then certainly serious damage." A.C. and her parents appealed to the Manitoba Court of Appeal, which upheld the decision of Justice Kaufman. They appealed to the Supreme Court of Canada.

Significant Issues:

In B.(R.) v. Children's Aid Society of Metropolitan Toronto, the Supreme Court of Canada determined that freedom of religion and the right to liberty does not preserve the right of a parent to refuse treatment for a very young child when doing so could jeopardize the child's health or life. This case is the next stage, determining whether the Charter of Rights and Freedoms will guarantee the right of a mature child to refuse treatment for religious reasons. An underlying theme is whether the state's interest in the health and life of a child outweighs the child's own interest in his or her health and life.

Do mature children have a right to determine their medical treatment, even if the consequences of refusing treatment may cause harm or even death? Will the right to liberty and security of the person and freedom of religion allow mature children to refuse treatment? How will the state make a determination of when it should override self-determination by mature children?

Decision and The Court's Reasons:

The Supreme Court of Canada dismissed the appeal and upheld the Court of Appeal's decision, finding that subsections 25(8) and (9) of the Child and Family Services Act are constitutional. The seven judges of the Supreme Court of Canada hearing the appeal wrote three separate decisions. Justice Abella wrote the majority decision and her conclusion was agreed to in a separate decision written by Chief Justice McLachlin. Mr. Justice Binnie wrote his own decision, dissenting in the result.

All of the judges appear to agree that there is no constitutional justification for ignoring the decision-making capacity of children under the age of 16. Justice Abella and Chief Justice McLachlin differed on whether the common law of medical decision-making generally is relevant in interpreting the applicable provisions of the Child and Family Services Act and the constitutionality of those provisions.

The majority's analysis centred around a "sliding scale of scrutiny, with the adolescent's views becoming increasingly determinative on his or her ability to exercise mature, independent judgment." In determining the "best interests" of a child under 16, greater weight would be given to a child's views the more the court is satisfied that he or she is capable of making mature and independent decisions. The degree of scrutiny by the court would also increase based on the seriousness of the medical consequences.

The majority and Chief Justice McLachlin agreed that the inability of an adolescent to determine his or her own medical treatment constitutes a deprivation of liberty and security of the person as guaranteed under s.7 of the Charter. The majority concluded that this deprivation is not arbitrary as the legislation provides for an increasing autonomy as a child matures, therefore concluding no actual breach of s.7. McLachlin CJ agreed with this conclusion as age is "a reasonable proxy for independence."

The majority and McLachlin CJ also agreed that there was no infringement of the right to equality under s. 15 of the Charter. A.C. had argued that she was discriminated against on the basis of age since those 16 years and older had presumptive control over their own medical treatment and she did not. The majority was satisfied that children under 16 would be able to bring evidence of their maturity as part of the "best interests" assessment. Chief Justice McLachlin held that the age provisions were ameliorative and protective of children and therefore complied with s. 15.

The Director of Child and Family Services conceded that the statute breached A.C.'s freedom of religion under s.2(a) of the Charter but argued that any such breach was justified under section 1. The majority did not conduct a section 1 analysis, concluding that the legislation was constitutional as it "provides that a young person is entitled to a degree of decisional autonomy commensurate with his or her maturity."

Chief Justice McLachlin conducted a very brief s. 1 analysis, finding that the legislation's objective was important and that giving the court discretion to order treatment after considering all relevant circumstances was a proportionate limit on any constitutional rights.

Justice Binnie, in dissent, disagreed that the Child and Family Services Act is sufficiently respectful of A.C.'s constitutional rights as a mature minor. He held that the majority's decision "ignores the heart of A.C.'s argument [that] the individual autonomy vouchsafed by the Charter gives her the liberty to refuse the forced pumping of someone else's blood into her veins regardless of what the judge thinks is in her best interest." He held that the "sliding scale of weight the majority is prepared to give to [A.C.'s] views is not responsive to her argument. Her point is: who decides?"

Binnie J. found that the legislation created an irrebuttable presumption of immaturity for those under 16, which took away A.C.'s personal autonomy for no valid state purpose. He found a breach of the s. 7 guarantee of liberty and security of the person.

In terms of whether the s.7 and s.2(a) breaches were justified, Justice Binnie accepted that the purpose of protecting children is pressing and substantial. However, he found that the irrebuttable presumption of incapacity did not impair the rights as little possible and therefore was unconstitutional.

LexView Commentary:

As stated by Abella J. at the beginning of her reasons "one of the most sensitive decisions a judge can make in family law is in connection with the authorization of medical treatment for children. It engages the most intensely complicated constellation of considerations and its consequences are inevitably profound."

The foundational question of a judge being asked to order medical treatment is whether that judge should be making the determination, at all. If the judge orders treatment over the objections of the patient, the state is overtaking the individual's role of self-determination. The Charter and Canadian common law recognizes the right of Canadians to control their own medical care. That right is only lost if the patient is not capable of making his or her own decision.

In the individual is not competent because of age or mental ability, someone else has to determine what is in his or her best interests. The question of the court's view of best interests does not even come into play if the individual has the capacity to make the decision. As stated by the Supreme Court of Canada in Starson v. Swayze:

A patient who is capable has the right to refuse treatment, even if that treatment is, from a medical perspective, in his or her best interest.

It is admittedly difficult to determine when a child has reached a level of maturity to make life and death determinations (assuming that any of us ever achieve a sufficient mental acuity to truly understand the impact of such decisions). The Manitoba Child and Family Services Act drew a fairly bright line at age 16, but allowed the court to still consider the wishes of a child under 16 in its determination of the best interests of the child (as held by the majority). Binnie J. found that this line was not justifiable since it presumed incapacity, such that a finding of mental maturity did not remove the decision-making ability of the state.

In order to assess the different reasoning offered by Justice Binnie and the other judges of the Supreme Court of Canada, the root consideration is whether a finding of mental capacity is enough to remove the authority of the state. Is it appropriate to simply determine whether a child is mentally able to make a profound decision about his or her health and life and, if so found, allow that decision to made by the child? This question revolves around the constitutional guarantee to liberty and security of the person. If Justice Binnie is correct, as a society we must accept that mature adolescents may refuse readily available medical treatment and die as a result.

The next question is whether a decision to refuse medical care for religious reasons changes how we, as a society, should approach honouring that decision.

(a) Liberty and Security of the Person: Whose Views Should Prevail?

It is paternalistic for any person to decide what is in another person's best interests. Paternalism is often justified and, in fact, needed. Children rely on their parents and guardians to make decisions in their best interests. Parents and guardians have a moral and legal duty to make decisions in the best interests of the children, apart from what may benefit the parents/guardians.

The law recognizes this as a fiduciary duty; being a duty to act in the best interests of another and put their interests ahead of one's own. In the case of children, the state becomes involved when a parent or guardian fails in that fiduciary duty and does not act in the best interests of the child.

In this way, the state's role is secondary to the decision-making power of a parent or guardian. A state agent, including the court, only decides if the parent or guardian fails to act in the best interests of the child.

However, at some stage, the child will acquire the right not to have either a parent/guardian or the state make a decision for him/her. That may occur at a discrete point in time, based on age, or based on an assessment of mental capability. At that stage, the child has the right to make his or her own decisions and no one has the right to impose a different result based on views of his or her "best interests". In other words, at some point, a competent individual has an immutable and indisputable right to determine what is in his or her best interests.

The majority of the Supreme Court of Canada found that the statute appropriately retained a discretion for the court to determine what is in the best interests of a child, even if that child has the mental capacity to make medical decisions with profound consequences. The degree of scrutiny, it was found, is on a sliding scale and will vary depending on the consequences of the decision and other factors. One such factor is the ability to of the child to make a mature and informed decision.

The courts, in other situations, have already held that children (being anyone that has not achieved the legal age of adulthood, which varies by province) have the right to determine medical treatments and other matters apart from their parents. The common law has recognized the right of children to provide their own informed consent to medical procedures if they have the requisite intelligence, maturity and capability of understanding. This extends to a right to abortion, even if a mature parent's disagree with the procedure being performed.

The right of liberty and security of the person in s.7 of the Charter would bolster the common law approach and add constitutional weight to these rights.

A sliding scale of court involvement, based in part of the negative medical consequences of refusal of treatment, reduces the pre-eminence of the right of self-determination. As Justice Binnie intimated, once a person is legally capable of making their own decision, there is no longer a legitimate state interest in making the determination in the "best interests" of that individual.

As hard as it may be to witness a young person refusing medical treatment and physically suffering or even dying as a result, a rights-based approach should be preferred to one that is unnecessarily paternalistic. If the child has intelligence, maturity and capability of understanding to make a decision, that decision should be respected.

This does not remove the role of the courts. Someone will have to determine whether a child has the requisite level of intelligence, maturity and capability of understanding. The courts are well suited to this determination, but is inappropriate for the state to impose legislation that effectively presupposes the result based on age alone.

The determination of whether an adolescent has the intelligence, maturity and capability of understanding to make a life-and-death medical decision will be difficult. As such, it is entirely appropriate to place an onus on the adolescent to prove this capability. As Binnie J. suggested, a rebuttable presumption of incapacity for young people is appropriate, but still respects their rights to self-determination when they are mentally capable of making the decision.

(b) Religiously Motivated Refusal by a Child

A.C.'s decision to refuse medical treatment was based on her beliefs as a Jehovah's Witness. As such, her freedom of conscience and religion is implicated. The Manitoba government quite rightly accepted that this was the case and that an order compelling a blood transfusion would breach her religious liberty.

Canadian constitutional jurisprudence is now clear that the courts do not have a role in determining the validity of religious beliefs that are protected under s.2(a) of the Charter, provided that they are sincerely held. It is legitimate for the courts to question and determine whether a belief is sincerely held, but not consider the value or validity of the belief itself.

The child involved in the B.(R.) v. Children's Aid Society of Metropolitan Toronto case was too young to have her own religious beliefs. A.C. was not too young and had her own religious beliefs, which her parents undoubtedly inculcated in her. However, the fact that a person's religious beliefs are influenced or moulded by his or her parents does not invalidate the beliefs or lead to a finding that they are not duly considered and sincerely held.

The fact that the Manitoba government conceded a breach of s.2(a) indicates that the evidence supported that she had a sincerely held religious belief against blood transfusions. This presupposes, and accepts, that she had the intelligence, wisdom and maturity to form religious beliefs and hold them sincerely to the point of risking her own physical health.

The majority would "expand the deference to [A.C.'s] religious wishes as her maturity increases." It is without question that religious beliefs can develop and change over time. This is true as a person matures into adulthood and is also true over the course of a person's adult life.

It is not appropriate for the courts to assume that religious beliefs may be different in the future than they are at the time of an alleged breach of freedom of religion. In other words, a court cannot contemplate that state action restricting a religious belief or practice may not have the same impact on a person in the future because the person's religious beliefs may change.

Similarly, it is not appropriate for a court to assume that a mature adolescent's sincerely held religious beliefs will change as he or she develops into adulthood. An "expanding deference" to religious beliefs effectively does this. If a mature adolescent has the maturity, wisdom and intelligence to form an independent set of religious beliefs (whether or not they accord with those of the parents), those beliefs should be respected and the adolescent fully protected under s.2(a) of the Charter.

It is inconsistent to suggest that A.C.'s freedom of religion is breached but that she is not sufficiently mature to refuse treatment. If, as accepted by the Manitoba government, she is sufficiently mature and intellectually capable of having a sincerely held religious belief against blood transfusions, that belief ought to be respected. Barring any other legitimate state interest in compelling her to take blood, the state's role should end at that juncture. If the Manitoba government did not accept that A.C. had the mental ability to form a religious belief against blood transfusions, it ought to have argued that her belief was not sincerely held because of parental influence or immaturity.

As recognized by the judges of the Supreme Court of Canada, this was a disturbing case. However, it should have been determined based on the threshold question of whether A.C. had the ability to make a profound medical decision and therefore had the right of self-determination. If she did, as the evidence suggested, then she was entitled to make her own decision, as much as the rest of us would regret and be disturbed by the results.

This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar.

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