'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.

• Author: Mosoff, Judith
• Position: Canada - University of New Brunswick Law Journal Forum: Access to Justice

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.

However, the analysis in the cases before the courts has depended on individualized assessments and vague principles that have created a lack of clarity in situations that are agonizing for all concerned. I suggest a more straightforward approach that would do away with questions of competence in life or death situations involving minors by applying a more standard principle, one that is consistent with the results in past cases. We would acknowledge that irrespective of findings about competence and the value of autonomy, the choice is to preserve the child's life because that is in his or her best interest. Limited exceptions would exist where the proposed treatment is extremely painful, onerous, and has a poor chance of success. (12) Such an approach would alleviate, at least to some extent, the uncertainty in these emotionally-charged circumstances.

In this paper I will discuss three factors that underlie both the confusion in this area and the reluctance to close off the possibility that minors could decide to refuse life-saving medical treatment in the right circumstances. First, the question of a life-saving treatment for young persons is a very particular context that requires a unique approach. Unlike other choices that confront adolescents, where the recognition of adolescent autonomy is appropriate, the consequences of decisions here are simply too grave and possibly irreversible. Secondly, the arbitrariness of a bright line between childhood and adulthood is evident. Depending on the particular jurisdiction, the law protects an 18-year-old from decisions that are considered very dangerous and foolish, but not a 19-year-old. Also, there are difficulties with the meaning of maturity and gradations in legislation, where there is an attempt to give older teenagers more voice than younger teenagers on medical choices. Thirdly, a mental health diagnosis has a complicated impact on decisions. Mental health diagnoses in minors tend to blur two concepts: youth and capacity. As well, a mental health condition may mean that the treatment protocol is especially problematic, sometimes obscuring the distinction between detention and treatment.

In the following section I will outline the troubling facts in SJL. Next, I move on to describe briefly the two decisions of the Supreme Court of Canada, AC and Starson, which are important references about treatment, autonomy, competence, and best interests for the judge in SJL. I will then set out the decision made by LeBlanc J. in SJL, highlighting the complexities of the treatment order in this case. I next go on to comment on three factors, well-demonstrated in SJL, that underpin the dilemma involved with minors and medical decision-making in dire circumstances: the significance of a life and death context; the role of chronological age; and the impact of a psychiatric diagnosis. Finally, despite the critiques associated with the best interests principle, I will conclude that the best interests approach is appropriate when the life of a minor is at stake.

Background Facts

In SJL, S's mother tried to prevent her daughter from leaving the hospital by asking the court to find that her daughter was not competent to make her own decisions about health care. S was just over 16 years at the time of the hearing. The facts are heartbreaking and disturbing.

Over the preceding two years, S had engaged in a wide range of extremely dangerous activities that were potentially fatal to her. These included several overdoses of acetaminophen, and swallowing objects such as batteries, a butter knife, scissors, part of a compass, the blade of a steak knife, bottle caps, a sock, and clips from a hospital bed. She had attempted to strangle herself with strings from her own clothing, banged her head against the wall, and repeatedly cut her wrists. The acts of self-harm occurred not only during periods when she was discharged from the hospital on temporary passes, but also when she was inside the hospital environment, including times when she was supposedly under constant supervision.

During the period in issue, S was a patient in two different hospitals, the Janeway Children's Health and Rehabilitation Centre, a pediatric facility, and the Waterford Hospital, a mental health facility. There was no actual diagnosis, only a reference to 'Borderline Personality Disorder', and the course of S's treatment is not clear. She was given mood-stabilizing drugs, which she took for a time but stopped. On one occasion she discontinued taking the medication because it made her tired and she gained weight. At several points she was considered for out-of-province treatment but this was found to be inappropriate, in part because she was seen as lacking motivation. She was described as a challenging patient, reluctant to take medication or to participate in various treatments. In directing her own course in the hospital, LeBlanc J. stated that "it appears that she has managed, to some degree, the professionals she has been dealing with as opposed to them being able to manage her treatment." (13)

Over this time S was detained as an involuntary patient many times under the Newfoundland and Labrador Mental Health Care and Treatment Act. (14) In June 2009, the Ethics Panel of the Waterford Hospital criticized her continued isolation, stating that hospital staff believed the standard of care was not being met in S's case, and that a substitute decision-maker was required because S could not give consent to treatment. (15) In November 2009, two psychiatrists refused to certify S. This prompted her mother to apply to Court to prevent her daughter from being discharged.

AC and Starson

AC was a challenge to s. 25(8) of the Manitoba Child and Family Services Act, (16) which authorizes a court to order medical treatment it considers to be in the "best interests" of a...