First Nations family's refusal of chemo a precedent-setting case, expert says

Final submissions in a precedent-setting case over treatment for a young First Nations girl with leukemia were underway today in Brantford, Ont.

McMaster Children’s Hospital is asking Judge Gethin Edward to force the Children’s Aid Society to intervene after the girl left chemotherapy treatment at McMaster to pursue traditional indigenous medicine.

The girl, whose identity is protected by a publication ban, was diagnosed with acute lymphoblastic leukemia in August. After 11 days of treatment, her mother told the doctors they would be leaving the hospital for a holistic health centre in Florida. The family spent three weeks at the Hippocrates Health Institute, a facility they say is in line with their traditional treatments.

• First Nations girl's family rejects chemo, hospital goes to court to force treatment
• McMaster wants aboriginal child taken from family for chemotherapy
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This was not a frivolous decision I made.— Mother of girl at centre of court case

In an interview with CBC News, the mother said, “This was not a frivolous decision I made. Before I took her off chemo, I made sure that I had a comprehensive health-care plan that I was very confident that was going to achieve ridding cancer of her body before I left the hospital. This is not something I think may work, this is something I know will work.”

Case will set precedent, legal expert says

Nicholas Bala, a professor in family law at Queen’s University, said that regardless of the judge’s decision, this case will be precedent setting.

“It`s going to set a precedent on the rights of parents and also on the question of which piece of legislation governs, the Child and Family Services Act or legislation governing the health Capacity and Consent Board.”  

It`s going to set a precedent on the rights of parents and also on the question of which piece of legislation governs, the Child and Family Services Act or legislation governing the health capacity and consent board.— Family law professor Nicholas Bala

In Ontario, disputes over medical decisions, including consent and mental health issues, are heard by an independent body called the Consent and Capacity Board.

Bala said the case is more complex because it involves a First Nations family, but the decision will apply to other children as well.

“Some of these issues will apply to other contexts, for example, Jehovah`s Witness children and others. We've had quite a few cases in Canada where parents and doctors have disagreed about treatment of children in a range of situations.

“The unfortunate history is when doctors have predicted death, it turns out that they're often correct, and that is probably going to influence how the courts view this as well.”

2nd time Children's Aid has not intervened

In the case that is in court now, doctors at McMaster called the Brant Children’s Aid Society to investigate when the family chose to leave treatment.

When Children's Aid decided not to intervene, McMaster took the unusual step of taking the matter to court.

• McMaster Hospital defends court action to treat aboriginal girl
• Makayla Sault, earlier First Nation child who refused chemo, relapsed: doctor

It was the second time in four months that the Brant Children's Aid Society made the decision not to intervene when a First Nations child left chemotherapy to pursue alternative treatment.

In May, 11-year-old Makayla Sault made national headlines when she wrote a letter outlining why she was leaving chemotherapy treatment at McMaster.

In other cases where children refuse life-saving treatment, Children's Aid has often intervened to force them back into care.

In the Sault case, after Children's Aid closed its investigation, the family travelled to the Hippocrates Healing Institute in Florida.

McMaster doctors testified that Sault has suffered a relapse, but in a video posted on Facebook, Makayla says she is “alive and well and healed.”

Decision expected soon

The judge in the latest case has been hearing testimony from McMaster doctors, indigenous medicine experts, and Children’s Aid workers since last month.

Our sole focus is trying to bring this child into treatment so we have an opportunity to provide her with a long, healthy life.— Dr. Peter Fitzgerald, McMaster Children's Hospital

McMaster doctors have testified that the girl had a 90 to 95 per cent chance of survival if she continued with chemotherapy, but would surely die without it.

"Obviously our main concern is with the well-being of this child.… This child has a life-threatening illness [and] without standard treatment will not survive, so our sole focus is trying to bring this child into treatment so we have an opportunity to provide her with a long, healthy life." said Dr. Peter Fitzgerald, president of McMaster Children's Hospital.

The Children's Aid Society has argued that this casts it only as a child protection issue. Its lawyer, Mark Handleman, made the case that under Ontario’s Health Care Consent Act, the child’s capacity to choose her own treatment needs to be determined.

Today, final submissions were heard in court. The lawyer for McMaster, Daphne Jarvis, stated that the Children's Aid Society should have sought to get temporary custody of the girl so that she could continue treatment while hearings were underway.

Handleman, the lawyer for the society, said that appropriate steps were taken and after an investigation it was determined the girl was not a child in need of protection. Handleman also stated that her mother was not refusing treatment for her daughter, but simply chose treatment the doctors disagreed with.

The mother of the girl has not appeared at the court proceedings and says she does not recognize the Canadian judicial system.

“The Haudenosaunee people which I’m a member of, we have our sovereignty still intact and we are governed by the great law … that predates Canada.”

Final submissions will continue to be heard next week.