While I imagine that being a judge is never easy, some situations and cases present more difficult decisions than others. And I imagine that the most troubling rulings a judge must make are those which may be expected to lead directly to the death of another person. While Canada does not have the death penalty – and thus, such decisions are not usually made in the realm of criminal law – judges are nonetheless sometimes call upon to address disputes having to do with the provision of medical care and the fatal results if that care is not given or continued.
In this article I want to address two situations where these very difficult issues arise. Both involve cases of children in need of medical care, where the court has the power to intervene and to make decisions for children when no other person is in a position to properly do so.Applying legal principles dispassionately and objectively, and resolving issues where dire results will follow, must surely be one of the most trying challenges a judge will ever face. The first scenario I will address is where medical treatment is necessary to keep the child alive, but is being declined, either by the parents or the child herself. The second is the reverse of the first: where doctors are of the opinion that further medical treatment is pointless and as a result, propose to end their efforts to prolong the life of a child who is by then in a permanent vegetative state.
Like any other decision a judge must make, these rulings are made by following principles and guidelines which have been established over centuries of legal development. The most fundamental of these is that of the “best interests of the child”. A judge who is asked to decide something as important as medical treatment for a child must always make the decision, based upon what is shown to be in the best interests of the child, regardless of the impact upon, or feelings of, any other person. This is an area in which law, ethics and emotions collide. Applying legal principles dispassionately and objectively, and resolving issues where dire results will follow, must surely be one of the most trying challenges a judge will ever face.
Refusing Medical Treatment for a Child
Many disputes which come to court involve competing rights and values. This is certainly the situation when parents, usually for religious or cultural reasons, do not wish their children to undergo recommended necessary medical procedures. The most frequent scenarios seem to involve Jehovah’s Witnesses who, in accordance with their religious beliefs and principles, do not wish a child to undergo a blood transfusion even though that procedure is necessary to keep the child alive.
In 1995, the Supreme Court of Canada made a ruling in a case where Jehovah’s Witnesses parents opposed a blood transfusion for their newborn daughter (B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC)) . Doctors had tried to treat the baby (who was by then in the care of Ontario child welfare authorities) by means other than transfusing, but her condition had deteriorated. They were concerned that she might suffer heart failure, and a blood transfusion would then be urgently required to keep her alive. The parents argued that their “liberty” as enshrined in Section 7 of the Canadian Charter of Rights and Freedoms included the right to make decisions about the essential medical care to be given their daughter, and that their freedom of religion under Section 2 allowed them to do so in accordance with their fundamental religious beliefs.
The Supreme Court ruled against the parents and permitted the blood transfusion to take place. When it came to assessing the Section 7 liberty interests of the parents, the nine judges who heard the case could not agree. The majority held that while parents have extensive rights when it comes to making decisions for their children – including the right to make decisions about medical care to be provided – that liberty was properly curtailed by the power of the state, and the courts, to protect persons who are unable to make their own decisions and protect themselves. Section 7 of the Charter permits our liberty rights to be restricted so long as this is done “in accordance with the principles of fundamental justice. ” One of those principles allows the state to override the wishes of parents if this is done to protect the well-being of a child, after taking proper account of the parents’ input and values, and after allowing them an opportunity to be heard. This group of judges decided that, although the order for treatment infringed upon the liberty of the parents, this was in accordance with the principles of fundamental justice and therefore, acceptable.
The Court also divided 5 to 4 when it came to considering the parents’ freedom of religion. The five-member majority of the Court held that the freedom of religion of the parents included the right to raise their child in accordance with their beliefs and values. Because of her extremely young age, the baby in question had not yet adopted the religious views of her parents, and was entitled to live long enough to make her own decisions about religion… Allowing the state to perform a blood transfusion on the baby was therefore contrary to their freedom of religion under Section 2 of the Charter, but this was a limit upon their freedom which was justified and acceptable in a free and democratic society such as ours.
The other four members of the court held that a parent’s freedom of religion does not include the right to impose those beliefs on a child where doing so might endanger her own safety, health or life. Because of her extremely young age, the baby in question had not yet adopted the religious views of her parents, and was entitled to live long enough to make her own decisions about religion (including whether she was going to follow one at all).
A similar situation was considered by the Court approximately 14 years later, when, in 2009, it dealt with a case involving an older Manitoba girl also in need of a transfusion (A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 (CanLII)) . She was almost 15 years old at the time, and had by then chosen to be a devout Jehovah’s Witness. She and her parents rejected the suggestion of blood transfusions. Because the girl in question was under the age of 16 years, the trial judge ruled that transfusions should take place until she reached that age. When it comes to decisions about medical treatment, the role of the courts must accommodate the views and input of young people as far as possible… The girl and her parents challenged the law on the basis that it infringed on their freedom of religion under Section 2 of the Charter; their liberty and “security of the person” rights under Section 7; and their equality rights under Section 15.
The Supreme Court dealt with the issues within the context of the “mature minor” doctrine. Contrary to more traditional principles which presumed an inability to make such important decisions for anyone under the age of majority, this doctrine recognizes that it is neither appropriate nor fair to treat all young persons the same. When it comes to decisions about medical treatment, the role of the courts must accommodate the views and input of young people as far as possible; the older, and more intelligent, informed and mature the young person, the greater the weight to be given her opinions and wishes as the court decides what is in her “best interests”.
The majority of the Court held that the laws in question did not violate any of the rights of the young girl or her parents. Permitting her to provide evidence of her maturity and development so a judge could take those factors, and her wishes, into account in assessing what was in her best interests, preserved her liberty and security of person rights under Section 7; her right to the equal treatment, benefit and protection of the law under Section 15; and her freedom of religion under Section 2.
Ending Necessary Medical Care
If ordering medical treatment for a child or whose family does not wish it is difficult, making a decision to the reverse effect – ordering or permitting the withdrawal of life-prolonging care or procedures in the face of family wishes that they be continued – must be even more challenging. Yet that is a situation which judges must face, from time to time, in circumstances which are truly heart-breaking. …judges are the persons we have asked, in our society’s structure and composition, to make such determinations when no other individual is able or willing to do so. Sometimes the medical reality is that further efforts are pointless: in some situations the condition of a patient is such that if kept alive they will be forever in a comatose state, and doctors therefore propose to withdraw or end their efforts – usually by removing the patient from the various machines which are by then performing the essential functions of the human body, including breathing itself.
This is not a situation the Supreme Court of Canada has yet seen fit to address in the context of child patient. However, some guiding principles have been developed by the lower courts. The courts in Alberta faced such a situation in 2012 when they were called upon to consider the case of an emaciated 2-year-old infant whose doctors were of the opinion that she had suffered “profound and irreversible brain injury” and would never again regain consciousness (Alberta (Child, Youth, and Family Enhancement Act, Director) v D.L., 2012 ABQB 562 (CanLII)).
The complicating factor in this case was that both her parents were charged with serious criminal offences as a result of the condition of their daughter. They were being held in custody at the time of the court proceedings and were refusing to accept the recommendations of the medical team that life-prolonging procedures be ended. Although the parents gave evidence that they were relying upon their religious beliefs in insisting that their daughter continue to receive treatment to keep her alive, they also stood to suffer a serious legal disadvantage if she were to die, because they would then likely be charged with either manslaughter or murder.
Child Welfare authorities in Edmonton asked the Provincial Court to make an order for the withdrawal of medical care based upon the opinions of the doctors, but that Court found that its own enabling legislation did not permit it to do so. Proceedings were then brought in the Court of Queen’s Bench, which considered the issues of the parents’ religious beliefs, and examined what other courts had decided in similar situations. In addition to other Canadian rulings, the judge noted the comments from a British House of Lords decision in 1993, when one of the Law Lords had observed that the issue in such situations is not whether it is in the best interests of the patient that he die, but rather, whether it is in his best interests that his life be prolonged by continuation of medical treatment. …society now expects that before intrusive medical procedures be undertaken for someone who cannot make the necessary decisions for herself, there be at least a potential benefit for the patient. Because of the clear conflict of interest of the baby’s parents – their own legal interest in keeping her alive, even where this meant she would almost certainly remain forever in a coma – the judge agreed their wishes should not be given much weight or influence in this case.
The judge considered carefully what was truly in the best interests of the child, and noted that recent court decisions addressing similar situations had come to reflect a general understanding in society that artificially supporting and continuing a life which would be lived unconscious, and entirely supported by machines, is usually not in the best interests of any patient, of any age. She observed that society now expects that before intrusive medical procedures be undertaken for someone who cannot make the necessary decisions for herself, there be at least a potential benefit for the patient. In this case, not only was the baby reliant on technology to continue to live, but she was expected to continue to suffer worse and worse medical situations which would mean her medical care would become ever more intrusive as the years went by. In this case, based upon the medical information from the doctors, the judge concluded that it was in the best interests of the little girl that the life-sustaining treatment be withdrawn, and that she be given only palliative care from that point forward.
Because of the urgency of the situation, an appeal brought by the baby’s parents was heard by the Court of Appeal five days later. The higher court refused to intervene. The little girl died within hours of the Court’s decision, when life-prolonging medical procedures were ended.
Contrary to some of the public criticisms sent their way from time to time, it is to be remembered that judges are human too, and carry with them the usual range of human emotion and feeling. I am confident no judge is “pleased” or “happy” to have to make a decision which will lead to the ending of someone else’s life, especially when that other person is an innocent child. But judges are the persons we have asked, in our society’s structure and composition, to make such determinations when no other individual is able or willing to do so. In such situations, they must leave their own emotions and values at the door of the courtroom and make their decisions dispassionately, in accordance with the law which governs and applies in the circumstances of the matter before them. These, I imagine, are the days when it is most difficult to be a judge.
About Charles Davison
