Medical care and children: Law, ethics and emotions collide.

AuthorDavison, Charles

While I imagine that being a judge is never easy, some situations and cases present more difficult decisions than others. And I imagine that the most troubling rulings a judge must make are those which may be expected to lead directly to the death of another person. While Canada does not have the death penalty--and thus, such decisions are not usually made in the realm of criminal law--judges are nonetheless sometimes call upon to address disputes having to do with the provision of medical care and the fatal results if that care is not given or continued.

In this article I want to address two situations where these very difficult issues arise. Both involve cases of children in need of medical care, where the court has the power to intervene and to make decisions for children when no other person is in a position to properly do so. The first scenario I will address is where medical treatment is necessary to keep the child alive, but is being declined, either by the parents or the child herself. The second is the reverse of the first: where doctors are of the opinion that further medical treatment is pointless and as a result, propose to end their efforts to prolong the life of a child who is by then in a permanent vegetative state.

Like any other decision a judge must make, these rulings are made by following principles and guidelines which have been established over centuries of legal development. The most fundamental of these is that of the "best interests of the child".

A judge who is asked to decide something as important as medical treatment for a child must always make the decision, based upon what is shown to be in the best interests of the child, regardless of the impact upon, or feelings of, any other person. This is an area in which law, ethics and emotions collide. Applying legal principles dispassionately and objectively, and resolving issues where dire results will follow, must surely be one of the most trying challenges a judge will ever face.

Refusing Medical Treatment for a Child

Many disputes which come to court involve competing rights and values. This is certainly the situation when parents, usually for religious or cultural reasons, do not wish their children to undergo recommended necessary medical procedures. The most frequent scenarios seem to involve Jehovah's Witnesses who, in accordance with their religious beliefs and principles, do not wish a child to undergo a blood transfusion even though that procedure is necessary to keep the child alive.

In 1995, the Supreme Court of Canada made a ruling in a case where Jehovah's Witnesses parents opposed a blood transfusion for their newborn daughter (B. (R.) v. Children's Aid Society of Metropolitan...

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