But Manitoba case in which Jehovah’s Witness teen’s denial  of blood transfusion was overruled reflects reluctance by judges

One of the most long-standing rules in medical law is that if a patient does not wish to be treated, you can’t force them. There are of course exceptions. For instance, if the patient is younger than 16, the law in many jurisdictions allows a court to order medical treatment, regardless of what the patient says. On the theory that people under 16 are basically too young to know what’s best for them, their protestations against being treated can be overridden.

But what if we’re dealing with a “mature minor,” someone younger than 16, but mature enough that their views ought to be taken into account?

That question came before the Supreme Court of Canada in regards to the child protection law in Manitoba, which says that if you’re under 16, a court can order medical treatment upon you. This legislation came under fire as being unconstitutional in a recent case involving a patient who was 14 years, 10 months old, suffering from lower gastrointestinal bleeding caused by Crohn’s disease. She was a devout Jehovah’s Witness and, some months before, had signed an advance medical directive containing her written instructions not to be given blood under any circumstances.

However, her doctor believed the internal bleeding created an imminent, serious risk to her health and perhaps her life. Still, she refused to consent to the receipt of blood.

The Manitoba court ordered a transfusion, so the question of whether the child protection law is constitutional became academic in this case, although important for future cases. The Supreme Court decided the law allowing forced treatment for those younger than 16 is OK, as long as the court respects and takes into account the child’s wishes to the extent that the child has the capacity for mature, independent judgment.

The top court tried to strike a balance between what it termed “an individual’s fundamental right to autonomous decision-making in connection with his or her body, and the law’s equally persistent attempts to protect vulnerable children from harm.”

But what does it mean to “respect” and “take into account” a child’s wishes? This is a hard question to answer.

The court acknowledged that in the vast majority of situations where the medical treatment of a minor is at issue, his or her life or health will not be gravely endangered by the outcome of any particular treatment decision. And that is why courts have determined that medical practitioners should generally be free to rely on the instructions of a young person who seems to demonstrate sufficient maturity to direct the course of his or her medical care.

Life-and-death situations are a different ballgame, and the court refused to say whether kids, however mature, should be allowed to choose to die rather than be saved. “It is dangerous to speculate,” said the court, “on whether a judge would ever decline to order medical treatment for a child under the age of 16 where the result would be probable death.”

Similarly, the court added, it would not be helpful to hypothesize on where the line between autonomy and treatment should be drawn in particular cases. “It is common sense to suggest, however, that the more dangerous the situation from the perspective of the child’s security of person, the more compelling must be the case that the child is fully mature, not only in matters of intellect and understanding, but in comprehension of the potential life that lies before her and the full future impact of her immediate choice.”

In other words, there is a sliding scale—the child’s views becoming increasingly determinative depending on his or her maturity. And, the more serious the nature of the decision and the more severe its potential impact on life or health, the greater the degree of scrutiny required. The bottom line is that youths do have the right to at least attempt to demonstrate mature medical decisional capacity. But no one wants to say whether a judge would go as far as to actually refrain from ordering life-saving treatment just because a child insists on dying in the name of principle.

The factors that a court will look at in order to tell how much weight should be given to a child’s views are as follows:

• the nature, purpose and utility of the recommended medical treatment and its risks and benefits;

• the adolescent’s intellectual capacity and the degree of sophistication to understand the information relevant to making the decision and to appreciate the potential consequences;

• the stability of the adolescent’s views and whether they are a true reflection of his or her core values and beliefs;

• the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations on his or her ability to exercise independent judgment; and

• the existence of any emotional or psychiatric vulnerabilities and the impact of the adolescent’s illness on his or her decision-making ability.

Any relevant information from adults who know the adolescent may also factor into the assessment.

In the Manitoba case, there was no such thorough scrutiny done on the patient. However, three psychiatrists did assess her, and they concluded she understood her medical condition and the consequences of not getting a transfusion. The court ordered one anyway, and it remains to be seen whether any judge in the future will ever do otherwise.

Bill Rogers is a Toronto lawyer and journalist who covers medical legal matters. Readers with legal news can contact him at rogersmedlaw101@sympatico.ca.