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Cancer decision a shock to lawyers

Is ruling on treatment a throwback or constitutional advancement?
|Written By Yamri Taddese

An Ontario Court judge’s recent decision to allow an aboriginal girl with cancer to withdraw from chemotherapy and pursue traditional treatment is a throwback to a “prescientific era,” says a Toronto health lawyer.

‘From having worked in a hospital, there is no question that alternative and complementary therapy have a place but cannot and should not be treated in isolation,’ says Alan Belaiche.

The judge allowed the 11-year-old aboriginal girl, who has lymphoblastic leukemia, to seek alternative treatment at a Florida clinic in accordance with the wishes of her mother, D.H., after she invoked the constitutional rights of aboriginal people to make their own treatment decisions.

But Toronto lawyer Alan Belaiche says the decision was a huge leap backwards and “should definitely be appealed.”

“What is glaringly absent from the decision is any meaningful consideration of the child’s best interest. And in lieu, the judge appears to have decided that a constitutional principle will trump all other considerations, including, most importantly, the best interest of the child,” he says.

“In my view, invoking and then essentially importing a constitutional principle, however laudable and important it may be, into the health-care context — where to my knowledge it’s never been judicially recognized in Canada — without considering the subject’s best interest is not a decision to be celebrated but a decision that should definitely be appealed.”

The court decided the girl, identified only as J.J., isn’t a child in need of protection as alleged by McMaster Children’s Hospital, the facility that treated her until her withdrawal in August. The court also found a constitutional protection for the right of aboriginal people to pursue traditional treatment as opposed to western medicine. “It is this court’s conclusion therefore, that D.H.’s decision to pursue traditional medicine for her daughter J.J. is her aboriginal right,” wrote Justice Gethin Edward. “Further, such a right cannot be qualified as a right only if it’s proven to work by employing the western medical paradigm. To do so would be to leave open the opportunity to perpetually erode aboriginal rights.”

Edward emphasized the mother’s deep commitment to her longhouse beliefs and her belief that traditional medicines work.

“This is not an 11th-hour epiphany employed to take her daughter out of the rigours of chemotherapy. Rather, it is a decision made by a mother, on behalf of a daughter she truly loves, steeped in a practice that has been rooted in their culture from its beginnings,” wrote Edward.

But according to Belaiche, former general counsel at St. Michael’s Hospital, the court had a duty to examine the efficacy of the alternative treatment the child would receive.

“From having worked in a hospital, there is no question that alternative and complementary therapy have a place but cannot and should not be treated in isolation,” he says. “It seems to me in the circumstances of this case, when one is dealing with a minor, it is incumbent upon a court to consider the efficacy of such alternative treatments against others.”

The judge’s reasoning about preserving aboriginal culture “seems to me to be a political agenda that effectively ignores the best interest of the minor and rolls back time to a historic prescientific era,” says Belaiche.

According to the ruling, the hospital’s position was that initial testing on the child showed she had a 90- to 95-per-cent chance of survival with chemotherapy. The hospital also said it wasn’t aware of any survivors of the disease without chemotherapy treatment.

Bioethics lawyer Mark Handelman says the Consent and Capacity Board would have been in a better position to deal with this case.

Handelman, a former vice chairman of the board, says he was “surprised that the case turned on the constitutional right of the girl’s mother to make her own treatment decisions.”

Handelman doesn’t believe the child needed protection because her mother didn’t refuse to make a treatment decision but had instead made one the doctors didn’t agree with. In this case, it would have been best to leave the issue to the Consent and Capacity Board, he suggests.

Toronto family lawyer Donald Baker calls the decision “extraordinary.” He compares the case to jurisprudence that has seen the children of Jehovah’s Witness families ordered back into treatment when their parents disagreed. That the girl was of an aboriginal background in this case had “everything” to do with the court’s decision, he says.

“These are constitutional issues which really go back to the time of when this country was formed — who has what powers over which people. To basically take this girl from that almost-guaranteed life-saving effort by the doctors and maybe kill her is really extraordinary. It’s shocking to me, but I’m not aboriginal and my code rights are not being trampled on,” he adds.

  • Rita Hartmann
    This was a tough case, revolving around the Health Care Consent Act, which allows a child of any age to agree, or not, to treatment. The onus is on health-care providers to show the young person is not capable of informed consent, and that did not happen. Religious or cultural beliefs cannot legally be used as indicators of mental incompetence, as this opens up society to abuse on a par with the residential school tragedies. To declare a system of beliefs grounded in one's cultural background "insane" or "incompetent" is to take a patriarchical position over a sovereign people, denying them the right to basic human dignity. Some have tried to distract from the core issue by pointing out that the aboriginal girl also sought alternative treatment from a 'white guy' down in Florida. It hasnow been reported that she is also receiving more traditional aboriginal medicine, including ceremonies and herbs, from her own community. It will be interesting to folow this and similar cases.
  • Rita Hartmann
    Whether this differing medical paradigm, what might be referred to as "ethnoscience", is effective at treating her leukemia or not, is irrelevant to the right of the patient to her human dignity. The court is not making a decision based on "cultural relativism", not equating the ethnoscience with western medicine as equally valid. The judge is saying that the patient and her family, understanding all the information presented to them, have a right to refuse treatment that they feel infringes upon the patient's quality of life. That the patient's cultural and religious backgrounds (aboriginal and of a Christian evangelical denomination) are part of said quality of life, is not for the court to rule on one way or another. Those issues only come into play because they are being misrepresented to frame this situation as western science vs. ethnoscience, which threathens to, to paraphrase Belaiche, make a huge leap backward in terms of aboriginal rights.
  • Mihaela Albu
    Allowing a child and her family to try a different approach to care is not outrageous, appalling or wrong. Having choices to improve one' s health is a desired feature in a democratic society, regardless of one's ethnicity, cultural or religious background. After all, there is no court order to not allow this individual to come back and resume the chemotherapy. Do you really know for sure the five year survival rate for either approach? Do you really know how this child's immune system responds to either treatment? How about the quality of (aboriginal family) life? Should Canadians also decide this issue?
  • L. Martenet
    This is what I call 'benign racism', based on a romantic idea of the 'noble savage'. As someone who works with children in the child welfare system, I am appalled at this decision. There is already a deadly inequality to the care and treatment of First Nations children, why would any rational person set out to make it worse? Separate but equal is never equal.
  • Mike S
    The child can die with western treatment or aboriginal care as well. The problem is that we have eroded aboriginal traditions for the last 200 yrs, there little left. Our government even wants to destroy the records of the Residential School abuse proceedings! There has to be a way to balance medical needs between two rigid schools of thought, ours and theirs! We all have a long way to go!!! Neither is perfect!
  • Lynn Whynn
    A perfect example of ignorance- beacuse you are not familiar with it and it is not YOUR idea of acceptable medicine, it cannot possibly be right! Finally a judge who got it right- Thank you for seeing that the Western way is not always the right way. Dont forget, perception is a wicked thing- "in the best interest of the child"...but from whos perspective and ideals?
  • Moe Litman
    Haven't read the decision, yet. Based on the La Times report, I'm confused. An aboriginal right to get treatment in a Florida clinic? Individual, not collective, aboriginal rights?. I'm sceptical of the aboriginal rights argument and despondent that best interest of the child, in a case where the child's life is at stake, did not prevail.
  • Bill Bull
    I agree with with Mr. Belaiche 100%. This is moral relativism under the guise of constitutional protection, with tragic consequences. The only evidence that mattered should have been the hospital's evidence that nobody with this condition has survived without chemotherapy. Nobody. Unless this child, by virtue of her Aboriginal heritage, is no longer part of Canada and not subject to Canadian laws then her right to life - exercised through the court since she is too young to make decisions for herself- should trump all other supposed rights. What is even more outrageous- and not mentioned in this article- is that the treatment the mother wants to pursue is not even a traditional Aboriginal treatment. So the very fact that she is Aboriginal means her parents can ignore science and let their child be treated by some quack peddling "natural remedies"? What an absolute travesty.
  • Anne-France Goldwate
    There is no question in my mind that this Judge should be removed from the bench. If this little girl dies, her blood will be on his hands.
    it is not because we have a grievous history of injustice to aboriginal peoples that we should tolerate permitting an aboriginal parent, in her ignorance, to imperil the life of her aboriginal child. The message that this judgment sends is that the life of an aboriginal child is less worthy of the court's protection than the life of a white child.
    It is time that judges participate in the Hippocratic Oath: First, do no harm.
    Where is the Conseil de la Magistrature when you need it?
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