Mature Adolescents Should Have a Say in Medical Treatment: Supreme Court of Canada

Tue Aug 4, 2009 - 12:15 pm EST

By Patrick B. Craine

June 26, 2009 ( - The Supreme Court of Canada (SCC) has told the nation's courts that they must consider the opinions of "mature adolescents" (those under 16 years of age), in medical decision-making.

The SCC directive relates specifically to Manitoba.  Under current Manitoba law, The Child and Family Services Act, the court has the authority to prescribe medical treatment that it deems to be in the "best interests of the child."  The Act presumes that the decision of children 16 and over is in their best interests, unless the child does not understand the decision or its consequences.

While in Manitoba, such a presumption does not exist for those under 16, the SCC has directed that the decision of a child under 16 should be respected according to their level of maturity and the gravity of the circumstance.

The decision about teens' autonomy in decision-making could potentially impact a range of issues where parents and teens disagree. According to Queen's University law professor Nick Bala, quoted in The Globe and Mail, Justice Rosalie Abella, who penned the decision, is "clearly recognizing that minors under 16 have ability [sic] to make decisions without their parents' involvement about abortion, contraception and other matters that are not life-and-death decisions."

In the decision, Justice Abella wrote, "In my view, to be constitutionally compliant, the interpretation of 'best interests' in [the Act] requires that sufficient account be taken of a particular adolescent's maturity in any given medical treatment context."

She describes the situation as "a sliding scale of scrutiny" that respects the adolescent's decisions increasingly with his or her degree of maturity.  Further, "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 right of mature adolescents not to be deprived of their medical decision-making autonomy means that the assessment must be undertaken with respect and rigour," she wrote. "In some cases," she added, "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."

The directive came in a decision regarding the case of "A.C" against the Manitoba Director of Child and Family Services.  A.C. is a Jehovah's Witness who was admitted at a Winnipeg hospital in April 2006, at 14 years of age, due to internal bleeding related to Crohn's disease.  She had previously submitted an advance medical directive stating that she did not want a blood transfusion, as this would violate her religious beliefs.

While in the hospital, however, her physician, Dr. Stanley Lipnowski, determined that without a transfusion her life was at risk, but A.C. refused nevertheless.  Child and Family Services intervened, taking A.C. into their custody, and subsequently obtained a judge's approval to force A.C. to undergo the transfusion, having satisfied him that she was in danger of death or serious injury.

In a court affidavit, A.C. compared the forced transfusion with the experience of being raped.  "That day, my tears flowed nonstop," she wrote. "I could liken it to being raped and violated, but even those words do not express my feelings strong enough."

The SCC upheld the constitutionality of the current law, while issuing the directive about taking the wishes of adolescents into account. Nevertheless, they still dismissed A.C.'s appeal with a vote of 6-1, although they required the province of Manitoba to pay her legal costs, estimated at $450,000.

In his dissenting view, Justice Ian Binnie asserted that A.C. had the right under the Charter to determine her best interests based on her religious views. "The Charter is not just about the freedom to make what most members of society would regard as the wise and correct choice," he wrote. "If that were the case, the Charter would be superfluous."

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