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Case Update: Aboriginal right to traditional medicine does not trump best interests of the child

We previously blogged about an Aboriginal girl with cancer whose parents were allowed to refuse chemotherapy (pursuant to a controversial court ruling). The case turned on the rights of Aboriginal peoples provided for in the Constitution Act.

In an unexpected twist, the parties recently returned to the court to have the judge clarify the decision. It has been reported that the judge amended his original order and clarified that the bests interests of the child be paramount. Specifically, it was clarified that the rights arising from her Aboriginal status be considered as one of multiple factors in the analysis of what constitutes her overall best interests. This is consistent with the majority of Ontario case law involving children.

To everyone’s credit, it appears (based on media reports) that all of the parties were very cooperative in the process. It is always reassuring to see families, health care providers and government work together toward a common goal, and is an important reminder that in even in adversarial proceedings, health law litigation can be conducted with a common goal of doing what is best for the patient.

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