"Why Not Tell It like It Is?" the Example of P.H. V. Eastern Regional Integrated Health Authority, a Minor in a Life-Threatening Context

By Mosoff, Judith | University of New Brunswick Law Journal, January 2012 | Go to article overview

"Why Not Tell It like It Is?" the Example of P.H. V. Eastern Regional Integrated Health Authority, a Minor in a Life-Threatening Context


Mosoff, Judith, University of New Brunswick Law Journal


INTRODUCTION

Adolescents in life-threatening circumstances present particular challenges to existing legal principles about consent to treatment. P.H. v. Eastern Regional Integrated Health Authority (1) (SJL), a case from the trial division in Newfoundland and Labrador, illustrates these problems. Social attitudes about the need to protect adolescents while recognizing their growing independence, and ambiguities about the distinction between developmental processes and pathology, form a complicated backdrop of ideas about the interpretation of statutory authority and common law principles.

In Canada, a competent adult may generally make any decision about his or her own health care, regardless of whether the choice is unpopular, against medical advice, or even likely to be fatal. Outside of emergencies and some narrowly restricted psychiatric or public health contexts, health providers must obtain consent from the individual before administering treatment. (2) Otherwise a doctor may be committing the tort of battery, even if the non-consensual treatment saves the individual's life. (3) An adult may refuse any treatment for any reason. Canadian courts have decided adults may refuse blood products because of religious convictions, and they may decline life-saving chemotherapy due to side effects. (4) Other cases involve the withdrawal of ongoing treatment, a decision that will result in death. (5) It does not matter whether the decision, to others, is principled or silly. Based on the value of personal autonomy, namely that people should be free to direct their own lives, decisions about what to do with one's body rest with the individual. (6)

For young persons, the law on health care decisions is more complicated. This paper looks at the matrix of legal issues and social attitudes involved in health care decisions for young persons when very serious consequences may result from refusing to accept treatment. My comments focus on SJL, a decision of the Newfoundland and Labrador Supreme Court Trial Division that concerns a 16-year-old who had been involved with the mental health system for several years, and had engaged in many acts of serious self-harm. In his judgment, LeBlanc J. relied on two important decisions of the Supreme Court of Canada: Manitoba (Director of Child and Family Services) v. C.(A.) (7) and Starson v. Swayze. (8)

Where adolescents are concerned, a patchwork of statutory and common law provisions which involve determinations about competence in various contexts, the concept of the "mature minor", and the 'best interests' principle make up the legal framework for young persons. Child protection legislation, laws regulating the operation of hospitals, statutes governing health decision-making, as well as codes of professional ethics for health care professionals, may all be brought into play, along with the court's parens patriae jurisdiction. (9)

Despite this, the courts invariably intervene in one circumstance: when the young person refuses treatment that is likely to save that individual's life. (10) That is, where the court finds that death is likely without treatment and the treatment is likely to be successful, there will be an order over the objection of the child or whichever adult has refused on the child's behalf. Despite arguments by some scholars that minors could refuse life-sustaining treatments in the right case, (11) courts consistently apply the best interests principle over a recognition of competence. In contrast to adults, where autonomy is paramount, the value of living takes precedence over autonomy when a young person is involved.

In my view, it is right to apply this principle to young persons in life-threatening circumstances. As a society, it is our collective responsibility to keep children safe. Where the value of autonomy threatens the very existence of a child living, it needs to give way to the principle of best interests. …

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