Children, transfusions and religious rights: Wading back into the debate

To what extent can sincerely held religious belief justify the denial of medically necessary treatment to a sick child? The question has dogged the legal and healthcare communities for years. Canadian courts have issued dozens of rulings. Legislatures have responded with rules that attempt to balance religious rights with child protection. Even the medical community has responded with new, less invasive treatments that purport to reduce the likelihood for such conflicts.

And yet, the debate continues. In January, a British Columbia court heard Charter arguments from the parents of sextuplets, four of whom received blood transfusions over their parents’ objections after the children were born prematurely last year. And last summer, the Alberta Court of Appeal gave a Calgary father the go-ahead to pursue a civil claim against lawyers for the society that represents Jehovah’s Witnesses in Canada. The suit alleges that the lawyers advised Bethany Hughes to refuse blood transfusions, and thus contributed to the death of the leukemia-stricken 16-year-old. (Ed. note: Bethany Hughes ultimately received several court-ordered transfusions. She died in spite of these.)

Now, the Supreme Court of Canada (“SCC”) has decided to wade in, as well. The SCC has recently granted a Winnipeg teen’s request for leave to appeal the Manitoba Court of Appeal decision in AC et al v Director of Child and Family Services (Manitoba), 2008 MBCA 18, on May 20, which upheld a blood transfusion order issued over the teen’s objections.

Facts & Trial Decision

The appeal involves A.C., a 14-year-old when the case began. After severe gastrointestinal bleeding linked to Crohn’s Disease, A.C. was admitted to the hospital in April, 2006. Following a second bleed, and a determination that her hemoglobin count was dangerously low, doctors sought consent to administer a blood transfusion. A.C. and her parents refused consent on grounds they were Jehovah’s Witnesses, and subscribed to an interpretation of the bible which forbade the ingestion of blood. Doctors subsequently contacted the Director of Child and Family Services, who apprehended A.C. and promptly sought a court order for a transfusion.

At the hearing, the court heard testimony from A.C.’s father, her doctor, and a social worker. It also heard evidence related to A.C.’s own wishes, including an advance medical directive executed by A.C., in which she indicated that she would not consent to a transfusion. The court nonetheless ordered a transfusion, concluding that this would be in A.C.’s “best interests”; the standard established by s. 25(8) of Manitoba’s Child and Family Services Act, CCSM c C80, which governs non-consensual treatment of children under 16. (By contrast, the legislation provided that children 16 and over should have their treatment decisions respected.) Following the ruling, A.C. received a blood transfusion. Her temporary wardship also eventually expired. Nonetheless, she appealed to the Manitoba Court of Appeal, which issued its ruling in February, 2007.

Court of Appeal

The Court of Appeal unanimously upheld the trial court’s decision. First, it rejected arguments that the Manitoba’s legislation did not apply, and that A.C.’s case should have instead been decided under the common-law “mature minor” rule.

Next, the court considered A.C.’s principal Charter argument &mdash: that Manitoba’s legislation infringed ss. 2(a) (freedom of conscience and religion) and 7 (life, liberty and security of the person) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [“Charter“]. Although the court dealt with each provision separately, the two analyses closely resemble one another.

The court readily acknowledged that the legislation engaged A.C.’s s. 7 interest in security of the person, and that it infringed her section 2(a) rights. It proceeded to find, however, that the imposition of medical treatment in this case was both in accordance with the principles of fundamental justice, and justified as a reasonable limit on A.C.’s rights. According to the court, the legislation reflected the state’s interest in child-protection and the sanctity of life. And while the legislation no doubt interfered with personal autonomy, it was carefully crafted to minimize this interference. While the legislature had not guaranteed that the wishes of children under 16 would be respected, it nonetheless took their wishes into account, and in so doing, turned its mind to the question of the “mature minor.” Further, the legislative scheme provided children and their parents with ample procedural protections, and ample opportunity to have their concerns heard.

The court similarly dismissed suggestions that the legislative scheme discriminated on the basis of age, contrary to s. 15 of the Charter. Although the scheme clearly provided for differential treatment, and did so on the basis of an enumerated ground, A.C. failed to demonstrate that the scheme had the purpose or effect of denying human dignity. On the contrary, the court likened the case to Gosselin v Quebec, [2002] 4 SCR 429 and Canadian Foundation for Children, Youth and the Law, [2004] 1 SCR 76, in which the impugned schemes were found to correspond to the unique “needs and circumstances” of young people.

Analysis

This is not the Supreme Court’s first foray into this debate. In B(R) v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315 (aka “Sheena B.”), the SCC dismissed arguments from a Toronto couple who claimed their Charter rights were violated when their infant daughter received a court-ordered blood transfusion over their religious objections.

However, A.C. is distinguished from Sheena B. in several respects. Most important among these differences, while the focus in Sheena B. was on the rights of parents, the focus in A.C. is squarely on the child’s own right to refuse treatment to which she herself objects.

In turn, this distinction has several implications. First, it means the real action at the Supreme Court will almost certainly be at the justification phase of the justices’ analysis. In Sheena B., although they unanimously dismissed the parents’ claim, the justices were divided as to reasons for doing so. The justices split 5-4 over whether the parents’ s. 2(a) rights had been violated, and 4-4 over whether their s. 7 liberty interests were engaged. On both issues, four justices found no violation, and thus, no need to proceed to justification. Their opinions make clear, however, that these justices were solely concerned with whether parents could assert Charter rights so as to jeopardize the health of a child too young to make her own treatment decisions. But given a child old enough to make such decisions and assert her own Charter rights, the Sheena B. justices all seem to suggest that they would have found a Charter violation, and proceeded directly to justification. Indeed, this may help to explain why, in A.C., Manitoba’s Director of Child and Family Services conceded both a s. 2(a) violation, and that A.C.’s liberty interest was engaged.

Second, the presences of a child claimant means the justices can consider something not considered in Sheena B. — namely, whether the impugned legislative scheme infringed s. 15 of the Charter. At first glance, a dismissal of A.C.’s equality arguments would seemingly be consistent with Gosselin and Canadian Foundation, in which the SCC suggested that differentiation based on age (and in particular, youth) was less likely than differentiation based on other grounds to compromise human dignity. However, A.C. could arguably be distinguished from those cases — for example, on grounds it involves additional Charter violations, which are not present in those cases, and which have significant potential to influence the human dignity analysis. If the Supreme Court does find a way to distinguish A.C., the ruling would likely be welcomed by youth advocates, some of whom have expressed concern about the implications of Gosselin and Canadian Foundation for the future of age-based discrimination claims.