'We must never let a child die'

The Globe & Mail - Canada
May 21, 2008

Minors should not make life-or-death choices, court told

by Kirk Makin

OTTAWA -- It is impossible to imagine a situation in which a child should be allowed to make a medical treatment decision that might lead to his or her death, a Manitoba Child and Family services lawyer told the Supreme Court of Canada yesterday.

Arguing at an appeal launched by a Jehovah's Witness who, at 14, was given a blood transfusion against her will, lawyer Norm Cuddy said that mature minors can only hope that the courts and medical system consider their treatment wishes.

"It could never be in the best interests of children to make a decision that costs them their life," Mr. Cuddy told the court. "Even if it is a decision based on religion - whatever their wishes, we must never let a child die."

The child at the centre of the case - known only as A.C. - was given a blood transfusion on Easter Sunday, 2006, after she adamantly refused it in keeping with her faith.

Earlier that day, a judge had determined that, although A.C. was mentally capable of making a treatment decision, doctors could override it to save her life.

Yesterday, Mr. Cuddy said it would be fraught with risk to allow children under 16 to make such choices, given that they could be unduly influenced by spiritual teachers or intensely religious parents.

"It has to do with maturity and judgment," Mr. Cuddy said. "The question is: Is this person making an independent judgment? Three days later, she might be lying in bed, looking death in the face. Would she still think the same way?"

A.C. told reporters that were she facing possible death again, she would make the same decision without hesitation.

"The fact that my choice wasn't respected was heartbreaking," she said, shortly after the court reserved its judgment in her case.

A.C., who has a bowel disorder known as Crohn's disease, added that she has not been in a similar situation since 2006.

Different provinces impose different ages at which an individual can start making life-and-death decisions involving their medical treatment. In Manitoba, the age is 16.

"We would not be any happier letting a 17-year-old die than a 16-year-old, but that's the line the legislature has drawn," Mr. Cuddy remarked yesterday.

Deborah Carlson, a lawyer for Manitoba's Attorney-General, told the court that the legislation is balanced, allowing judges to consider a child's wishes, maturity level and the gravity of the medical situation in coming to a decision on what is in the patient's best interests.

"In this case, the facts are very, very stark," Ms. Carlson said.

"In some cases, it would not be as clear whether treatment would or would not be in the best interests of the child."

Her view was supported by Margaret Unsworth, a lawyer for Alberta's Attorney-General. "Are we, as a society, going to allow a religious conviction to prevail when exercising that conviction would result in death?" she asked.

David Day, a lawyer for A.C., said that some children under 16 can appreciate the weight of a major medical decision.

"Capacity is not a midnight epiphany," Mr. Day said. "The act assumes that some people under 16 will be capable, yet Manitoba locked the door to her medical integrity. The only reason that they locked the door was that she was under 16. But when she is turning 16, what - other than age - changes for her?"

Cheryl Milne, a lawyer for Justice for Children and Youth, told the court that adults cannot automatically take decisions out of the hands of children through arbitrary age limits that disregard their varying levels of maturity.

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