Aboriginal rights and refusal of treatment in Canada

Consider:

An 11 year-old girl, J.J., is diagnosed with high-risk acute lymphoblastic leukemia, a type of cancer that arises in the bone marrow. She is put on a 32-day course of chemotherapy with an estimated success rate of over 90%. Her doctors don’t know of anyone who has survived this illness without such a course of treatment. However, after just 10 days, her mother withdraws her consent to J.J.’s chemotherapy in order to pursue alternative, non-western remedies. J.J. doesn’t object, but both of her doctors believe that J.J. doesn’t understand either her illness or the importance of the treatment she is on. In all matters, she defers to her mother who is also her surrogate decision maker. The hospital in which J.J. is a patient appeals to Child Services, stating that by ceasing treatment J.J.’s mother has put J.J. into the position of a child in need of protection. Such a status would permit the hospital to continue treatment despite disagreement from J.J’s mother (in her capacity as surrogate decision maker). The case goes to trial, and a ruling is made in favour of J.J.’s mother. J.J. is taken out of the hospital in order to pursue non-western treatment alternatives. It is very likely that J.J. will die.

These are the details of a case that was recently argued in the Ontario Court of Justice. There is precedent in the Canadian legal system for disregarding the express wishes of parents who are also a child’s surrogate decision maker. For example, children of Jehovah’s Witnesses will continue to receive blood transfusions despite the fact that the tenets of their parents’ faith prohibit such a procedure. Why not override the mother’s decision in this case then, which seems so similar? J.J. and her mother, D.H., are both members of The Six Nations of the Grand River, the largest First Nation band in Canada. In Canada, the rights of aboriginal peoples are protected under Section 35 of the 1982 Canada Act. The text of this act states:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “Aboriginal Peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

35(1) has been understood to encompass all rights that existed prior to the creation of the Canada Act that can be demonstrated to be centrally important to the continued culture and lifestyle of aboriginal peoples. That is, those rights possessed before European settlement of Canada that are central to the traditions of aboriginal peoples are to be both recognized and affirmed. It is important to note that these rights fall outside of those protected by the Canadian Charter of Rights and Freedoms, which begins with the proviso that the rights contained in that document are only guaranteed on the condition that they can be demonstrably justified in a free and democratic society. The rights of aboriginal peoples are not limited by that proviso.

D.H. withdrew J.J. from treatment in order to pursue a course of traditional aboriginal medicine [1]. Given that the use of traditional medicine is a centrally important and continuing practice, it was deemed to be protected under 35(1) of the Canada Act. For this reason, the case to have J.J.’s status changed to a child in need of protection was dismissed. No party in the dispute believes that D.H. is an unloving mother or that other aspects of J.J.’s life could warrant such a status. The only concern—and it is clearly a big one—is that the result of D.H.’s rejection of chemotherapy is the likely death of her child.

The obvious question is: Should the Ontario Court have ruled in the way it did? I think the answer is No, but it’s important to be careful. The history of Canada’s treatment of aboriginal peoples is abhorrent, and some feel that any other ruling would have been a step towards the erosion of rights that are justifiably protected under the Canada Act. It is easy to see why one might worry about this. The traditional medical practices of The Six Nations are centrally important to their culture. If the court had overridden the wishes of the mother, that might have been seen as a legal precedent for denying traditional medical practices more generally. That would surely be unjustified.

But it is important to acknowledge that we know how the Court would have responded if the cultural practices in question were those of any non-aboriginal group. The parents’ decision as a surrogate would not have been respected and the child would have been treated. The understandable caution taken in this case (if we want to call the judge’s reading of 35(1), which is undoubtedly an extension of previous interpretations, caution) is a result of the awareness of previous wrongdoing. But, the overriding of parents’ decisions in other cases doesn’t amount to some form of legal prohibition on the practice of the tradition the tenet of which was in conflict with the proposed treatment. Nor does it diminish the capacity of the parents to bring the child up in their faith or cultural tradition. Nor does it indicate any malice towards the group in question. Rather, overriding the parents’ decisions amounts to the state asserting that, in the case in question, it is the child’s wellbeing that matters most. And this is just as it should be.

It seems to me that in making the decision to respect D.H.’s adherence to her cultural tradition we forget that it is the child the decision is being made for. In fairness, D.H.’s reason for stopping the chemotherapy was that chemotherapy is poison, and that’s true. Chemotherapy is poison. But it’s also a poison that we use to treat something that is far worse. With an expected success rate of over 90% it is simply unacceptable to cease treatment unless one has found something better. This wouldn’t be the case if it were D.H. herself who was undergoing treatment. But that is because she is an adult and has had the time to consider her relationship to the culture to which she belongs and the capacity to do so. J.J. lacks both of these things. The reason it is so worrying that mother’s preferences are being chosen over the child’s wellbeing is that we don’t have any reason to believe that the child has the same preferences. If, despite being 11 and undergoing treatment for a serious illness, J.J. were able to articulate her own reasons for ceasing the course of chemotherapy and was deemed to have the capacity to make such a decision, the case would be much different. As things stand, the mother is acting in her own best interest, not her child’s. For that reason, I doubt that the crux of the case is a proper understanding of 35(1) of the Canada Act. Rather, the case requires an answer to the question: Has D.H. acted appropriately as a surrogate decision maker? Given that the decision she has made for her daughter is based on a cultural tradition J.J. is too young to understand and therefore unable to appraise and given further that this choice will very likely lead to J.J.’s death, it seems to me that the answer is simple. D.H. has not acted appropriately as a surrogate decision maker and the court was wrong to uphold her refusal of J.J.’s treatment.

[1] It seems that this isn’t actually true. D.H. plans to take J.J. to a holistic health centre in Florida that practices alternative not aboriginal medicine. To my mind, this weakens the claim that the crux of the case is an appropriate understanding of 35(1) of the Canada Act, as the treatment being pursued is not part of the history of The Six Nations of the Grand River even if the rejection of chemotherapy is. 

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