Head notes for Session “Landmark Cases” March 30th, 2009.
Rotaru v. Vancouver General Hospital Intensive Care Unit (BCSC, 2008)
Petition for orders requiring that (a) medical staff of defendant hospital continue to provide life support for the petitioner's mother, and (b) that the staff provide her with medication vital to her life and well-being, and that they change their "death-inducing" actions. The mother was said to have global, irreversible vascular disease, with inoperable lesions resulting in compromised blood flow to vital tissues, plus chronic ischemic colitis, with GI bleeding and inability to support enteric nutrition requiring TPN. The issue was whether the court was in a position to order that treatment resume where the medical advisors stated that it was in their bona fide clinical judgment that the former treatment was contra-indicated.
HELD: The petition was adjourned generally. An intervention such as the one sought would not be appropriate in this case. Only the petitioner was of the view that there should be a resumption of the prior treatment for the mother. The medical advisors believed that the treatment would in fact be harmful. The court was not in a position to accede to the relief sought. Rather than dismiss the petition, it was to be adjourned generally. The medical records would be made available to a licensed medical practitioner so the petitioner might receive an independent view of her mother's best interests.
Manitoba (Director of Child and Family Services) v. A.C. (Man. C.A. 2007)
Appeal by the respondents from a decision allowing the Director of Child and Family Services' application for a treatment order. At the time of the initial hearing on April 16, 2006, AC was a 14-year-old girl who suffered from Crohn's disease. She had been admitted to hospital on April 12, after suffering an episode of gastrointestinal bleeding. The loss of blood had decreased her hemoglobin count. On April 16, she suffered another internal bleed, which decreased her hemoglobin count even further. In the opinion of medical personnel, that created an imminent and serious risk to her life or health. Her doctors wished to give her a blood transfusion, but both she and her parents refused to consent to the receipt of any blood or blood products on religious grounds. AC was a baptized member of the Fellowship of Jehovah's Witnesses and believed that one of God's commandments was that she abstain from blood, including receiving blood as part of a blood transfusion. The hospital contacted the Director of Child and Family Services when AC indicated that she would not consent to blood transfusions. The Director apprehended AC as being a child in need of protection. The Director brought an application pursuant to ss. 25(6) and (7) of the Child and Family Services Act for an order authorizing qualified medical personnel to administer blood transfusions to AC as deemed necessary by the attending physician, without the consent of her parents. The applications judge was satisfied that there were "immediate dangers as the minutes go by, if not death, then certainly serious damage." The judge took into account an advance medical directive executed by AC earlier that year, but granted the treatment order, concluding that the blood transfusions were in AC's best interests. He held that, pursuant to s. 25(8) of the Act, the "best interests" test governed the decision even for minors with capacity if they were less than 16 years of age. AC was then given three units of blood. On appeal, in addition to requesting that the order be set aside, the appellants sought a declaration that ss. 25(4), 25(8), and 25(9) of the Act were unconstitutional on the basis that they infringed AC's rights under ss. 2(a), 7 and 15(1) of the Charter.
HELD: Appeal dismissed. The Act adopted the age of 16 as raising the presumption that the minor was entitled to make their own decisions with regard to medical treatment. With respect to minors under the age of 16 the Act treated all persons the same. While taking their wishes into account, it placed final decision-making authority in the hands of a judge. The judge made that decision based on the best interests of the minor. Reading s. 25(8) together with s. 25(9), in the context of the whole Act, it was clear that the legislature did direct its mind to the question of a mature minor. It decided to provide a modified mature minor rule where the treatment decisions of those 16 and over with capacity would be respected. For those under 16, with or without capacity, the court would decide based on the best interests test. The cases relied on by the appellants to establish the common law concept of the mature minor did not consider children in need of protective services as a result of their refusal to undergo recommended life-saving medical treatment. The Act was clear and formed a complete and exclusive code for dealing with the refusal of medical treatment where an application was made under s. 25. With respect to the appellants' Charter arguments, it was accepted that an order imposing medical treatment under s. 25 implicated AC's security of the person interest. However, given concerns over protecting the lives of children in relation to essential medical treatment and the difficulty in determining capacity in emergency situations, the choice of a best interests test for minors under 16 that took the child's wishes into account was not unfair or arbitrary. While AC's s. 2(a) Charter rights were infringed, the infringement was justified under s. 1. There was a rational connection with the objective of the legislation and the means used were the least intrusive possible. The order was a temporary one, subject to the filing of appropriate documentation and mandatory review. The process contemplated by the legislation was "carefully crafted, adaptable to a myriad of different situations, and far from arbitrary." With respect to the appellants' s. 15(1) arguments, the distinction between children over and under 16 was not an affront to human dignity in the manner contemplated in the jurisprudence. Section 25 was a "sensitive, balanced approach to the difficult issues that arise where a child refuses effective medical treatment, one which is firmly grounded in the needs and circumstances of children, requiring consideration of the child's capacity and wishes in an age-appropriate manner."