Family of aboriginal girl can legally opt for traditional medicine
BRANTFORD, Ont. – The family of an 11-year-old aboriginal girl with cancer has a constitutional right to opt for traditional medicine over chemotherapy, an Ontario judge ruled Friday in what some observers called a landmark decision.
A hospital that had been treating the First Nations girl sought to have the child apprehended and placed back into chemotherapy after her mother had pulled her out of the treatment earlier this year, but its application was dismissed by Judge Gethin Edward.
The case in Brantford, Ont., west of Hamilton, saw the McMaster Children's Hospital take the Brant Family and Children's Services to court over the issue of the girl's treatment.
The girl, whose name cannot be revealed due to a publication ban, was receiving chemotherapy treatment before her mother removed her in mid-September to take her to Florida for alternative therapy, which involved herbal treatments and lifestyle changes.
At that point, the hospital asked the BFCS to intervene to ensure the girl continued her chemotherapy but the agency refused, triggering the legal case.
The girl and her immediate family were not in court on Friday, but the decision was hailed by the chief of the Six Nations Reserve, where the child is from.
``I don't think we're risking our kids' lives. Her mother loves her to the world and back,'' said Chief Ava Hill. ``We've been practising traditional medicine, we've never stopped, and now we're just going to do it more openly.''
The court's decision also sent a message about the right of aboriginal communities to look after their own, said Hill.
``No longer are we going to let people come and take our kids,'' she said. ``The residential school era has ended, we're moving on, now we've got a lot of healing to do because of that era and we're not going to let anybody else take our kids anymore.''
A lawyer representing the BFCS said aboriginal rights were fundamental to the case and should be recognized.
``I think this is a landmark case and I think it will ripple at length,'' Mark Handelman said in an interview.
``It recognizes the traditional rights of First Nations people to practice their own medicine, secondly it's a reminder to health practitioners that it's important to factor into treatment proposals and recommendations the wishes, values and beliefs of the patient.''
The hospital's application to the court sought to have the child apprehended and placed back in chemotherapy, but the BFCS took the position that the child was not in need of protection, but rather, in need of a treatment decision, Handelman said.
The judge hearing the case concluded in his ruling that traditional aboriginal treatments were in existence before First Nations communities were in contact with Europeans, and were consequently entitled to special protection in Canada, Handelman said.
The ruling means the girl is free to pursue traditional treatment for her leukemia instead of chemotherapy, or alternatively, she is also free to decide to return to chemotherapy in the future, Handelman said.
Indeed, the girl and her family are back in Canada after their trip to the U.S., and a referral for the girl has been made to an oncologist at a different hospital, he said.
When asked if the outcome of the case might have been different if the child had not been aboriginal, Handelman said every case was different.
``It's impossible to answer that question because both health-care cases and child-welfare cases, every one is unique, every one depends on its own facts,'' he said.
``A broader aspect to this case is a reminder to all of us that medical decisions are never made solely on the basis of the best medical result – individual wishes, values and beliefs come into play.''
In an interview with AdvocateDaily.com, Toronto health lawyer Lonny Rosen says Ontario's Health Care Consent Act provides the legislative regime for substitute decision-making in which someone making a decision on behalf of another person would have to consider first their wishes and then their best interests.
“But in this case, the court determined that the child had the constitutional right to seek aboriginal treatment and therefore declined to impose a custody or supervision order," he says. "The judge found that because the child’s mother chose to exercise her ‘constitutionally protected right to pursue their traditional medicine' over chemotherapy, the child was not in need of protection – even though her parents were refusing to provide consent to the recommended treatment, which had a high likelihood of curing the child’s cancer."
Rosen, partner at Rosen Sunshine LLP, says this matter is unique and may have legal implications moving forward.
“This is the first case I’m aware of in which the court found a constitutional right to choose aboriginal treatment, regardless of whether the child was capable of consenting to treatment or whether this choice was in the best interest of the child,” he says.
The hospital was not immediately available for comment but said it planned to issue a statement later in the day.
© 2014 The Canadian Press
With a file from AdvocateDaily.com