On June 26, 2009, the Supreme Court of Canada upheld Manitoba legislation under which a child of almost 15 years old was given a court-ordered blood transfusion contrary to her religious beliefs as a Jehovah’s Witness.
A.C. v. Manitoba (Director Child and Family Services) is less about religious freedom and more about the weight to be given a child’s refusal of medical treatment when she is under the age of 16 years of age, has the “capacity” to make medical decisions, and is facing imminent and serious danger to her health or life.
The focus of this case is on mature adolescents, not young children, and is in the context of children found in need of protection under provincial child welfare legislation.
In this case, two sections of the Manitoba Child and Family Services Act were challenged under the Charter: s. 25(8), by which a court may authorize medical treatment it considers is in the best interests of a child; and s. 25(9), which gives the wishes of a child 16 years of age or older presumptive weight unless it is shown that the child does not understand the nature or consequences of the treatment. There is no such presumption for a child under 16.
Section 2(1) of the act provides that in determining the “best interests” of a child, all relevant factors shall be considered, including the “mental, emotional, physical, and educational needs of the child and the appropriate care or treatment or both, to meet such needs”; “the child’s mental, emotional, and physical stage of development”; “the views and preferences of the child where they can be reasonably ascertained” and “the child’s cultural, linguistic, racial, and religious heritage.”
The majority’s decision, written by Justice Rosalie Abella, upholds the constitutionality of the impugned provisions of the act, provided that the child’s best interests in s. 25(8) are properly “interpreted in a way that sufficiently respects his or her maturity in a particular medical decision-making context.”
Acknowledging that “maturity” is difficult to measure, the majority held that a full assessment of maturity is required in determining the child’s best interests.
According to the majority, “[i]t is a sliding scale of scrutiny, with the adolescent’s views becoming increasingly determinative depending on his or her ability to exercise mature, independent judgment. The more serious the nature of the decision, and the more severe its potential impact on the life or health of the child, the greater the degree of scrutiny that will be required.”
The majority concluded that its interpretative approach to “best interests” is consistent with common law principles related to “mature minors,” the reality of child development, and the demands of child protection.
An extensive review of the common law doctrine of the “mature minor” was undertaken, which was summarized as “a general recognition that children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding.” This doctrine has been used to support minors making their own decisions about such matters as contraception and abortion.
Abella emphasized that a “mature minor” is not to be treated as an adult for all treatment decisions, nor is the “mature minor status” to oust the court’s inherent parens patriae jurisdiction when the child’s life is in danger.
In such cases, the court may “exercise its parens patriae jurisdiction to authorize treatment based on an assessment of what could be most conducive to the child’s welfare, with the child’s view carrying increasing weight in the analysis as his or her maturity increases.” [para. 56]
The s. 25 cases that end up in court are there because child protection authorities have determined medical treatment is necessary to protect the health or life of the child.
“In this very limited class of cases, it is the ineffability inherent in the concept of ‘maturity’ that justifies the state’s retaining an overarching power to determine whether allowing the child to exercise his or her autonomy in a given situation actually accords with his or her best interests. The degree of scrutiny will inevitably be most intense in cases where a treatment decision is likely to seriously endanger a child’s life or health,” says the ruling.
Recognizing the difficulty of defining maturity and reiterating that it is an individualized assessment, the decision identified several factors that may assist the court in assessing “with respect and rigour” the maturity of adolescents and whether their wishes reflect stable independent choices, it says.
Once the “best interests” standard in s. 25(8) is interpreted to take into account the young person’s views in accordance with her maturity, the court held the impugned provisions are not arbitrary or discriminatory and do not violate freedom of religion. This interpretation is a measured response to the objective goal of protecting vulnerable children while respecting the autonomy of those who are “sufficiently mature to make a particular treatment decision.”
The concurring opinion, written by Chief Justice Beverley McLachlin, concurred in the result but not the reasons of the majority. Focusing on the act itself, the chief justice held that, with respect to refusal of treatment, the act provides a complete code for children in need of protection, thereby ousting the common law “mature minor” doctrine; a key difference with the majority opinion.
The effect of this conclusion is that the wishes of the adolescent are simply one factor to be considered by the court, not a potentially determinative factor.
The chief justice held that while the act deprived A.C. of her “liberty” to refuse treatment and perhaps her “security of the person,” it did so in accordance with the principles of fundamental justice. The limits placed on her personal autonomy advanced a genuine state interest of protecting children from harm and were based on rational not arbitrary grounds.
The age marker of 16 was not discriminatory because it was “ameliorative not invidious,” she wrote.
The infringement of freedom of religion was justified for much the same reasons that it was not arbitrary under s 7. Religious motivation was ultimately irrelevant in a case that was essentially about personal autonomy.
Justice Ian Binnie delivered a strong dissenting judgment, describing “forced medical procedures” as “one of the most egregious violations of a person’s physical and psychological integrity against the will of an individual whose refusal is based on a strong religious faith.”
For Binnie, once capacity is determined, the minor should not just have “input” into the judge’s decision, but make the decision irrespective of her best interests or the judge’s views.
The state’s interest in protecting vulnerable children disappears when a “mature minor” shows there is no need for protection because she has capacity to make her own decisions about medical treatment.
It will take some time to absorb all the nuances of this lengthy and complicated decision. Provinces will, however, be reviewing their child welfare legislation to see if it gives adequate weight to the wishes of mature adolescents.
The majority judgment is a creative response to the Charter challenge. By importing the common law doctrine of “mature minor” into the statutory standard of “best interests” of the child, it intends to respect an adolescent’s developing maturity while retaining the state’s “overarching power” to act in her ‘best interests.”
This is similar to the principle that the “mature minor” doctrine does not oust the court’s inherent parens patriae jurisdiction. The judgment does, however, raise some questions:
1. Given that decisions of this nature arise in the context of child protection hearings, when it has already been determined that the life and health of the child is at risk and time is of the essence, the judgment seems somewhat theoretical.
With the statute allowing for short notice, dispensing with paperwork and the taking of evidence by telephone, how realistic is it that there will be a “full assessment of maturity” as envisioned in the majority judgment?
Will that requirement, with its potential for delay, pose further risks to the adolescent’s “security of the person” and perhaps even her life, which is also guaranteed under s. 7 of the Charter? The chief justice referred to the “impracticability” of evaluating a child’s maturity in the “crucial and often exigent context of authorizing medical treatment.”
2. Will this decision be limited to the very narrow class of treatment cases in child protection cases where the life or health of the child is at risk or will it throw into doubt other age-based restrictions, (e.g. capacity to marry, licence to drive, right to vote, compulsory attendance at school) substituting a standard of maturity for the traditional marker of age?
Jennifer M. Leddy is an associate with the Ottawa office of Carters Professional Corp.