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Judge rules Aboriginal family can refuse chemotherapy for 11 year old

An Ontario judge ruled this week that an Aboriginal girl would not be taken from her family by Children’s Aid and forced to resume chemotherapy. Interestingly, the judge may have decided differently if the girl was not Aboriginal.

Some have welcomed the decision as a victory for Aboriginal rightsothers have stated the best interests of the child were not the primary criterion.

As we have blogged about here, situations involving minors and treatment refusals are difficult for everyone involved. And even more so when the parents are clearly loving and caring.

In this case the 11 year old girl was diagnosed with leukemia and began chemotherapy.

Treatment was discontinued after her parents withdrew consent. An oncologist treating the girl contacted the local Children’s Aid Society (“CAS”) because the medical team felt the decision to end chemotherapy put the girl’s life at risk. They did not believe the girl was “capable” of making the decision herself (a legal concept described described further in our blog here about legalities of forcing medication); therefore, her parents are her substitute decision-makers (a role that has legal rights and responsibilities attached to it).

CAS became involved but decided not to apprehend the girl, who was ultimately discharged from the hospital. The matter ended up before the courts.

The hospital argued that the girl was a “child in need of protection” under the Child and Family Services Actand that CAS should have apprehended her. It essentially wanted the Court to make an order that the girl be brought back for treatment. The Court acknowledged that apprehending her at the present stage would be particularly difficult given the support the family has of the Six Nations community.

The Court was also directed to look at the section of the Constitution Act that recognizes Aboriginal and treaty rights of Aboriginal peoples of Canada. It had to analyze whether the parents’ decision to refuse chemotherapy in lieu of traditional medicine is an Aboriginal right to be “recognized and affirmed” pursuant to the Constitution Act. The Court reviewed landmark cases involving the balancing of Aboriginal rights in Canada against other laws, and the history and importance of traditional medicine in First Nations communities.

The Court decided that the decision to refuse chemotherapy was “a decision made by a mother, on behalf of a daughter she truly loves, steeped in a practice that has been rooted in their culture from its beginnings”. The Court concluded that her decision to pursue traditional medicine was her Aboriginal right and that it could not find the girl to be “a child in need of protection when her substitute decision-maker has chosen to exercise her constitutionally protected right to pursue their traditional medicine” over the proposed chemotherapy.

These cases, while difficult, are always interesting because they are unique from other types of litigation. In this case, and many other health law disputes, there is a shared concern for the patient, but the parties have different ideas about what is the best course of action in the circumstance.

The importance of legal advice in these situations cannot be understated. This precedent-setting case further complicates the landscape and will make it even more difficult to predict what might occur in future cases where parents wish to refuse life-saving treatment for their children.

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