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Month: February 2021

Pediatric Case Analysis

Pediatric Case Analysis

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First Nations Rights in Choosing Traditional Medicine

A Legal Analysis of The Honourable Justice Edwards ruling

 

Image result for Parent Refusing chemotherapy for first nations child
Supporters of the Six Nations side of the case hold up signs outside of an Ontario court house. (Photo: CBC)

BACKGROUND / CASE SUMMARY

JJ prepares a ‘green drink’ as part of her natural health diet. (CBC)

JJ, an eleven-year-old native girl, was diagnosed with acute lymphoblastic leukemia (ALL) and given a 90-95% survival rate by her oncologist; the family was also told there were no known cases of survival without chemotherapy. JJ commenced her chemotherapy treatment for a few days before her mother, DH — her substitute decision-maker (SDB) — withdrew consent in favour of pursuing traditional aboriginal medicine to treat her daughter’s ALL. JJ. and her family are part of the Mohawk tribe of the Six Nations band in Ohsweken, Ontario, which traditionally uses alternative healing methods. 

Physicians at the Hamilton Health Sciences center (HHSC) disagreed with DH’s decision to remove JJ from treatment and filed a report to the Brant Family and Children’s Services (CAS); CAS determined no intervention would occur. The HHSC then raised an application under Subsection 37(2)e of the Child and Family Services Act in the Ontario Court of Justice to have JJ return to chemotherapy. 

Subsection 37(2)e – Child and Family Services Act

"The child requires medical treatment to cure, prevent or alleviate physical harm or suffering, and the child’s parent refuses to consent to treatment."

This week’s topic will analyze the ensuing legal decision delivered by Justice Edwards and the Ontario Court of Justice (OCJ).

 

FEATURED LAW & POLICY

a) Canadian Charter of Rights and Freedoms

b) Constitution Act, 1982

c) Child and Family Services Act, RSO 1990, c. C-11

d) Health Care Consent Act, 1996

Mohawk Medicine – A look inside a traditional indigenous medicine shop

THE DECISION

The Honourable Justice G.B. Edwards found that JJ is not a child in need of protection when her SDM has chosen to exercise her constitutionally protected right to pursue their traditional medicine over the physician’s recommended course of chemotherapy.

The application was dismissed (OCJ, 2014).

The Decision

LEGAL ANALYSIS

This case depends upon the lens in which you choose to view it. JJ — an 11-year old girl — has a high chance of survival should she pursue and endure her chemotherapy treatment; the alternative is that there are no known survivors without it. It seems like there is only one option. However, recalling the additional fact that JJ and her family are part of the Mohawk Six Nations band of aboriginal peoples, believe strongly in traditional aboriginal medicine and have the right to seek alternative treatments.

This is the critical junction of this case.

The physicians seek an injunction to force JJ back to chemotherapy treatment under the CFSA, and the HCCA adjudicated before the Consent and Capacity Board. The physicians deemed JJ not capable of making an informed decision. They have concluded her mother DH’s (SDM) decision to remove her from chemotherapy has placed her at medical risk and seeks a child in need of protection status. The respondent’s counsel has refuted that JJ does not need protection but instead requires a diagnosis.

Enter Section 35 of the Constitution Act, 1982 — “Recognition of existing aboriginal and treaty rights .” As DH and her Mohawk Six Nations band practice traditional medicine as an integral element of their culture, this becomes a constitutionally protected right pursuant to the act listed above. The fact is, DH does not want to discontinue treatment for JJ; she wants to pursue an alternate treatment. Justice Edwards states that “such a right cannot be qualified as a right only if it is proven to work by employing the western medical paradigm” (OCJ, 2014). Justice Edwards’s statement reflects that we do have a choice in treatment plans and that it should not be constrained to typical western medicine.

How does “Recognition of existing aboriginal and treaty rights” expand into traditional medicine when not mentioned in the Consitution Act?

The Chief Justice Writes:

“The time period that a court should consider in identifying whether the right claimed meets the standard of being integral to the aboriginal community claiming the right is the period prior to contact between aboriginal and European societies. Because it is the fact that distinctive aboriginal societies lived on the land prior to the arrival of Europeans that underlies the aboriginal rights protected by s. 35(1), it is to that pre-contact period that the courts must look in identifying aboriginal rights.”


(OCJ, 2014)

Concluding our analysis in line with Justice Edwards’s decision, we can now, on the basis of law, understand why aboriginal people have the right to practice traditional medicine — even when western society says it may be harmful. Traditional medicine and culture have been ingrained within the Six Nations band, and as a constitutionally protected right, it is not up to us on which form of treatment they seek.

“Reconciliation means not having to say sorry a second time”

References
  1. CFSA. (1990). Child and Family Services Act. Ontario.Ca. https://www.ontario.ca/laws/view

  2. Constitution Act. (1982). Schedule B to the Canada Act 1982 (UK), 1982, c 11 | The Constitution Act, 1982.
    https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec35subsec1_smooth

  3. Jarvis, D. (2015). CanLII Connects. Recent Case Update – What are the implications for health care providers?.
    http://canliiconnects.org

  4. OCJ. (2014). Hamilton Health Sciences Corp. v. D.H., C287/14E (Ontario Court of Justice). https://canlii.ca/t/gf8sg
End of Life Legal Analysis

End of Life Legal Analysis

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CUTHBERTSON v RASOULI (2013)

Image result for supreme court of canada

If you are not already familiar with the story that led to the Supreme Court ruling on Cuthbertson v. Rasouli, please read these articles to gain an understanding of the complexities surrounding the Supreme Courts decision.

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The Rasouli family, from left to right: son Mehran Rasouli, daughter Mojgan Rasouli, Hassan Rasouli and Parichehr Salasel. (Photo: CBC)

To understand the Supreme Courts decision (Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341) and whether Mr. Rasouli’s wishes should be respected on legal grounds, we must comprehend the legislature backing the decision. The Health Care Consent Act (c. 2, Sched A) (HCCA) lays out the foundations for consent to treat, capacity, emergency treatment, and liability protection. Since Mr. Rasouli was incapacitated, Section 20 ‘Consent’ of the HCCA ranks possible substitute decision-makers (SDM) as a hierarchy. There was no argument between the family, courts, or physicians on who the SDM is — Mrs. Salesel. Next, we must consider what she was asking; maintaining life support as it was the expressed wishes of Mr. Rasouli, according to Mrs. Salasel. The attending physician Dr. Cuthbertson argued that life-support is not “medically indicated” and is not a “treatment” under s.2(1) of the HCCA and that the withdrawal of it does not constitute “treatment”; therefore, it does not require the consent of the SDM. 

The Health Care Consent Act, (1996, S.O, c.2, ‘interpretation’, 2(1)) defines treatment as “anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan…”

The central objection to this ruling surrounds the definition of treatment. The Supreme Court found that the removal of Mr. Rasouli’s life support fell within the definition of “treatment” and required consent. The Supreme Court ruled that the definition was amply broad and that the requirement for consent cannot be determined by medical benefit or futility. With the facts presented and as the HCCA is currently written, it is on these legal grounds that I believe we should respect Mr. Rasouli’s wishes as expressed by his SDM to remain on life-support.

Looking at this case from a Physicians’s perspective, you must advocate on behalf of your patient, their family, the hospital, and even the community needs. This perspective is a juggling act of emotions and resources; determining what is best for the patient is always at the forefront of the discussion. With Mr. Rasouli’s case, his family noticed ‘signs of life’ where the physicians declared him in a persistent vegetative state. End-of-life care is the most emotionally driven decision a SDM will incur.

To suggest removing Mr. Rasouli’s life support, one fact that could change my opinion is that if Mr. Rasouli had personally expressed his wishes differently (not wanting life support) — in some form (advance care directive, will, a note, etc.) of communication — while he had the capacity. This fact would change the hierarchy of decision-making within the HCCA. However, I believe the family would still pursue an injunction in this case; although, it may alter the courts final decision, also allowing my conclusion to fall within the courts views once again.

Image result for RasouliMr. Rasouli on life support with wife and daughter. (Photo: Toronto Sun)

To examine this legal decision from an ethical perspective, the course modules presented us with the IDEA framework. We have examined the case’s facts and appraised both the physicians’ and Mrs. Salasels’ arguments. The options presented are maintaining life support, withdrawal of life support and moving to palliative care, or moving Mr. Rasouli into private care at the family’s cost. Removal of life support that keeps a patient alive impacts patient autonomy in the most fundamental way and goes against the HCCA. The decision to stop treatment will ultimately lead to Mr. Rasouli’s death. Ethically, physicians must follow the ‘do no harm rule’ and ceasing a treatment that will lead to death must be harmful?

This is where the physicians argue that continuing the treatment does more harm, further complicating the situation. The family could have moved Mr. Rasouli out of the ICU into private care, but at cost they could not sustain. This presents another ethical challenge, knowing that forcing this option would lead to Mr. Rasouli’s death when the family could no longer afford the treatment. The physicians were unable to foster trust with Mr. Rasouli’s family. It was hard to determine the significance of cultural aspects from the Supreme Courts ruling. However, from reading the news articles, it appears culture played a significant role in the family’s decision-making process in keeping Mr. Rasouli alive. Cultural complexity in end-of-life care and presents a considerable challenge between physicians and family members.As the HCCA is written, I must agree with the Supreme Courts’ legal decision. The HCCA legislation defines the rules we must follow as a society. It is unfortunate that end-of-life care decisions come down to the interpretation of a definition; ethically, we have no other reason to believe that Mr. Rasouli expected different treatment. As the law stands, it is his right to continue treatment.

 

“The only easy day was yesterday”

References
  1. Cuthbertson v. Rasouli. (2013). SCC 53, [2013] 3 S.C.R. 341
    https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13290/index.do
  2. Health Care Consent Act. (1996). SO 1996, Chapter 2, Sch A,
    https://canlii.ca/t/5354b 
  3. Queens University. (2021). BMED/LISC 373 – Health Ethics, Law, and Policy – Modules 3 & 4.
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