Children's Rights and Health Law: The 'Mature Minor' Rule Revisited

• Author: Gerald B. Robertson
• Pages: 39-55

39

 

Children’s Rights and Health Law: e “Mature

Minor” Rule Revisited

 . , 

is essay discusses t he rights of chi ldren in the contex t of consent to med-

ical treatment. It focuses in partic ular on the recent decision of the Supreme

Court of Ca nada in A.C. v. Manitoba (Director of Child and Fa mily Services),

in which t he Court exami ned the parameters of the right of a child to re-

fuse medical treatment (including potentially li fe-saving procedures) and

the correspondi ng power of the courts to overr ide that refusal a nd order the

treatment. A deta iled an alysis of the A.C. decision is especial ly impor tant

given that t here appears to b e considerable uncertaint y over what t he Su-

preme Court actu ally decided in that ca se.

A. THE R IGHT TO REFUSE M EDICAL TR EATMEN T

Reecti ng the fu ndamental impor tance of persona l autonomy and medica l

self-determi nation, the law recognizes th at mentally competent a dults have

the rig ht to refuse medical treatment.  Nowhere is th is legal pr inciple more

eloquently capture d than in the judgment of Robbins J of the Ontar io Court

of Appeal in t he leading case of Fleming v. Re id:

  SCC  [A.C .].

 See, generally, Ellen I. Picard & Gerald B. Rober tson, Legal Liabil ity of Docto rs and Hospi-

tals in Ca nada, th ed . (Toronto: omson Canada , ) at – [Picar d & Robertson].

  . , 40

e r ight to determine what shall, or sha ll not, be done with one’s own

body, a nd to be free from non-c onsensual medical treatment, is a r ight

deeply rooted i n our common law.  is right underl ies the doctri ne of in-

formed consent. W ith very limite d exceptions, ever y person’s body is con-

sidered inviol ate, and, accordin gly, every competent adu lt has the rig ht to

be free from u nwanted medical tre atment.

It is impor tant to note that th is right applies eve n when the treatment is po-

tentially life savi ng. As the Supreme Court of Ca nada has stated, “[t]he fact

that serious ri sks or consequences may result from a refu sal of medical treat-

ment does not v itiate the r ight of medical self-determination .” Indeed, it is

exactl y in t his ty pe of cas e that t he strength of the courts’ com mitment to

protect the right of med ical self-determinat ion is truly tested, a nd Canadian

courts have withstood t hat test. Consequent ly, the right of a mentally com-

petent adult to refuse life-saving treatment has been upheld in a number of

Canadia n cases, including Male e v. Sh ulman  (refusa l of potential ly life-sav-

ing blood tra nsfusions) and Nancy B . v. Hôtel-Dieu de Qu ébec (discontinua-

tion of respiratory l ife support).

Another ver y important aspect of the right to ref use medical t reatment

is that it applies regardless of the patient’s reasons for the decision (assumin g

that the pat ient’s competence i s not in question), and regardless of whether

other people view the deci sion as reasonable. Once again, th is is a key test of

the robustness of the right of medical self-deter mination. If it were to mean

only that the patient has a rig ht to ma ke decisions that other people agree

with and consider rea sonable (including the patient’s physician and fami ly,

and u ltimately the court), it would be reduced to a meani ngless and impo-

tent right. As Robins J noted in Mal ee v. Shulman, “For this fre edom to be

meaning ful, people must have t he right to make c hoices that accord with

 (),  OR (d)  at  (CA) [Fleming].

 Ciarlar iello v. Schac ter, []  SCR  at para.  [Ciarlariello], quoting fro m Fleming,

ibid. at . See a lso Rodrig uez v. Briti sh Columbia (Ao rney-Ge neral), []  SCR  at

para.  [Rodrig uez]; A.C., above note  a t para. .

 (),  OR (d)  (CA).

 [] JQ no (SC).

 e rea sons for the ref usal may be re levant if th ey indicate t hat the patient m ay lack the

mental ca pacity to ma ke the decisio n. However, the Sup reme Court of Ca nada has cau-

tioned aga inst usin g the patient’s di sagreement w ith the dia gnosis or propo sed treatment

plan as ev idence of incap acity. See Star son v. Swayze,   SCC  at para.  [Starson].