hank_scorpio
26-06-2009, 08:59 PM
http://www.theglobeandmail.com/news/national/top-court-rules-transfusion-law-constitutional/article1198575/
Seriously-ill children under 16 can be forced to take life-saving medical treatment against their wishes – but only after their maturity and viewpoint has been carefully considered, the Supreme Court of Canada ruled today.
In a 6-1 ruling, the majority concluded that the wishes of a minor may win out even in a life-or-death situation, provided that he or she displays genuine maturity and autonomous thinking.
“It 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,” Madam Justice Rosalie Abella said, writing for the majority.
However, Judge Abella said that the state must retain “an overarching power” to determine whether it is truly in the best interests of a child to exercise his or her autonomy of choice in an emergency.
“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,” she said, writing on behalf of Mr. Justice Louis LeBel, Madam Justice Marie Deschamps and Madam Justice Louise Charron.
“In some cases, courts will inevitably be so convinced of a child's maturity that the principles of welfare and autonomy will collapse altogether and the child's wishes will become the controlling factor.”
Madam Justice Beverley McLachlin and Mr. Justice Marshall Rothstein wrote concurring reasons, upholding a Manitoba law that allowed doctors to force a blood transfusion on a 15-year-old Jehovah's Witness - known as A.C.
At the time, A.C. had suffered serious internal bleeding caused by a gastro-intestinal disorder known as Crohn's Disease. She attempted to refuse transfusions based on a basic tenet of her faith - that the Bible forbids ingesting blood.
Four days after being admitted to a Winnipeg hospital with internal bleeding, Dr. Stanley Lipnowski concluded that her life was in immediate danger. A.C. and her parents ask him to treat her with iron and other drug alternatives.
Hospital psychiatrists concluded that A.C. had the capacity to make medical decisions, but Manitoba's Child and Family Services stepped in to invoked a provincial law which permits a judge to act in the best interests of a child under 16 in a life-or-death situation.
Based on the law, a judge ordered that A.C. be given three units of blood. The Manitoba Court of Appeal unanimously upheld the decision.
David Day, a lawyer for A.C. said today that his client was “elated” with the court ruling that recognized that, “she had the right, as a mature, informed 15-year-old, to have her medical treatment decisions respected.”
Mr. Day said that the decision confirms the wisdom of looking at minors as individuals, not merely as members of a particular age group. He also commended the Court for granting the child her legal costs.
In strongly dissenting reasons, Mr. Justice Ian Binnie argued for A.C. to be granted an absolute right to decide her own fate.
“Forced medical procedures must be 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,” Judge Binnie reasoned.
“The Charter is not just about the freedom to make what most members of society would regard as the wise and correct choice,” he said. “If that were the case, the Charter would be superfluous. The Charter, A.C. argues, gives her the freedom — in this case religious freedom — to refuse forced medical treatment, even where her life or death hangs in the balance.”
Queen's University law professor Nick Bala - an expert in law affecting children - praised Judge Abella's ruling as being, “a very sophisticated effort to recognize the growing maturity of adolescents as they age, while still continuing to promote their welfare and recognize the limits of their capacity.”
He said that Judge Abella found the middle ground between the extremes of Judge Binnie absolute view about a child's right to decide, and Chief Justice McLachlin's view that the medical best interests of a child must prevail.
“Justice Abella is also clearly recognizing that minors under 16 have ability to make decisions without their parents' involvement about abortion, contraception, and other matters that are not life and death decisions,” Prof. Bala noted.
Fuck those guys for even discussing the very idea of these decisions.
Seriously-ill children under 16 can be forced to take life-saving medical treatment against their wishes – but only after their maturity and viewpoint has been carefully considered, the Supreme Court of Canada ruled today.
In a 6-1 ruling, the majority concluded that the wishes of a minor may win out even in a life-or-death situation, provided that he or she displays genuine maturity and autonomous thinking.
“It 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,” Madam Justice Rosalie Abella said, writing for the majority.
However, Judge Abella said that the state must retain “an overarching power” to determine whether it is truly in the best interests of a child to exercise his or her autonomy of choice in an emergency.
“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,” she said, writing on behalf of Mr. Justice Louis LeBel, Madam Justice Marie Deschamps and Madam Justice Louise Charron.
“In some cases, courts will inevitably be so convinced of a child's maturity that the principles of welfare and autonomy will collapse altogether and the child's wishes will become the controlling factor.”
Madam Justice Beverley McLachlin and Mr. Justice Marshall Rothstein wrote concurring reasons, upholding a Manitoba law that allowed doctors to force a blood transfusion on a 15-year-old Jehovah's Witness - known as A.C.
At the time, A.C. had suffered serious internal bleeding caused by a gastro-intestinal disorder known as Crohn's Disease. She attempted to refuse transfusions based on a basic tenet of her faith - that the Bible forbids ingesting blood.
Four days after being admitted to a Winnipeg hospital with internal bleeding, Dr. Stanley Lipnowski concluded that her life was in immediate danger. A.C. and her parents ask him to treat her with iron and other drug alternatives.
Hospital psychiatrists concluded that A.C. had the capacity to make medical decisions, but Manitoba's Child and Family Services stepped in to invoked a provincial law which permits a judge to act in the best interests of a child under 16 in a life-or-death situation.
Based on the law, a judge ordered that A.C. be given three units of blood. The Manitoba Court of Appeal unanimously upheld the decision.
David Day, a lawyer for A.C. said today that his client was “elated” with the court ruling that recognized that, “she had the right, as a mature, informed 15-year-old, to have her medical treatment decisions respected.”
Mr. Day said that the decision confirms the wisdom of looking at minors as individuals, not merely as members of a particular age group. He also commended the Court for granting the child her legal costs.
In strongly dissenting reasons, Mr. Justice Ian Binnie argued for A.C. to be granted an absolute right to decide her own fate.
“Forced medical procedures must be 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,” Judge Binnie reasoned.
“The Charter is not just about the freedom to make what most members of society would regard as the wise and correct choice,” he said. “If that were the case, the Charter would be superfluous. The Charter, A.C. argues, gives her the freedom — in this case religious freedom — to refuse forced medical treatment, even where her life or death hangs in the balance.”
Queen's University law professor Nick Bala - an expert in law affecting children - praised Judge Abella's ruling as being, “a very sophisticated effort to recognize the growing maturity of adolescents as they age, while still continuing to promote their welfare and recognize the limits of their capacity.”
He said that Judge Abella found the middle ground between the extremes of Judge Binnie absolute view about a child's right to decide, and Chief Justice McLachlin's view that the medical best interests of a child must prevail.
“Justice Abella is also clearly recognizing that minors under 16 have ability to make decisions without their parents' involvement about abortion, contraception, and other matters that are not life and death decisions,” Prof. Bala noted.
Fuck those guys for even discussing the very idea of these decisions.