Mandatory blood transfusion constitutional

A Manitoba law which forced a blood transfusion on a young Jehovah's Witness is constitutional, the Supreme Court ruled today. The case, A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, involved a young Jehovah's Witness, identified only as A.C., who received a court-ordered blood transfusion in 2006. She was 14 when she was admitted to a Winnipeg hospital with internal bleeding. A.C. and her parents refused a transfusion on religious grounds because they believe the Bible forbids ingesting blood.

A case summary follows:

C was admitted to hospital when she was 14 years, 10 months old, suffering from lower gastrointestinal bleeding caused by Crohn's disease. She is 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. Her doctor believed that internal bleeding created an imminent, serious risk to her health and perhaps her life. She refused to consent to the receipt of blood. A brief psychiatric assessment took place at the hospital on the night after her admission. The Director of Child and Family Services apprehended her as a child in need of protection, and sought a treatment order from the court under s. 25(8) of the Manitoba Child and Family Services Act, by which the court may authorize treatment that it considers to be in the child's best interests. Section 25(9) of the Act presumes that the best interests of a child 16 or over will be most effectively promoted by allowing the child's views to be determinative, unless it can be shown that the child does not understand the decision or appreciate its consequences. Where the child is under 16, however, no such presumption exists. The applications judge ordered that C receive blood transfusions, concluding that when a child is under 16, there are no legislated restrictions of authority on the court's ability to order medical treatment in the child's "best interests". C and her parents appealed the order arguing that the legislative scheme was unconstitutional because it unjustifiably infringed C's rights under ss. 2(a), 7 and 15 of the Canadian Charter of Rights and Freedoms. The Court of Appeal upheld the constitutional validity of the impugned provisions and the treatment order.

Held The appeal should be dismissed. Sections 25(8) and 25(9) of the Child and Family Services Act are constitutional.

Per LeBel, Deschamps, Charron and Abella JJ.: When the young person's best interests are interpreted in a way that sufficiently respects his or her capacity for mature, independent judgment in a particular medical decision-making context, the constitutionality of the legislation is preserved. Properly construed to take an adolescent's maturity into account, the statutory scheme strikes a constitutional balance between what the law has consistently seen as 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. The "best interests" standard in s. 25(8) operates as a sliding scale of scrutiny, with the child's views becoming increasingly determinative depending on his or her maturity. 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 result of this interpretation of s. 25(8) is that young people under 16 will have the right to demonstrate mature medical decisional capacity. This protects both the integrity of the statute and of the adolescent.

Mature adolescents have strong claims to autonomy, but these claims exist in tension with a protective duty on the part of the state that is justified by the difficulty of defining and identifying "maturity". Any solution to this tension must be responsive to its complexity. Where a child under 16 comes before the court under s. 25 of the Child and Family Services Act, it is the ineffability inherent in the concept of "maturity" that justifies the state's retaining an overarching power to determine whether allowing the child to exercise his or her autonomy in a given situation actually accords with his or her best interests. But "best interests" must in turn be interpreted so as to reflect and respect the adolescent's developing autonomy interest. The more a court is satisfied that a child is capable of making a truly mature and independent decision on his or her own behalf, the greater the weight that must be given to his or her views when a court is exercising its discretion under s. 25(8). If, after a careful analysis of the young person's ability to exercise mature and independent judgment, the court is persuaded that the necessary level of maturity exists, the young person's views ought to be respected.

In assessing an adolescent's maturity in a s. 25(8) "best interests" analysis, a judge should take into account 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; 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.

When the "best interests" standard is properly interpreted, the legislative scheme created by ss. 25(8) and 25(9) of the Child and Family Services Act does not infringe ss. 7, 15 or 2(a) of the Charter because it is neither arbitrary, discriminatory, nor violative of religious freedom. Under s. 7 of the Charter, while it may be arbitrary to assume that no one under the age of 16 has capacity to make medical treatment decisions, it is not arbitrary to give them the opportunity to prove that they have sufficient maturity to do so.

With respect to s. 15, in permitting adolescents under 16 to lead evidence of sufficient maturity to determine their medical choices, their ability to make treatment decisions is ultimately calibrated in accordance with maturity, not age, and no disadvantaging prejudice or stereotype based on age can be said to be engaged.

Similarly, since a young person is entitled to lead evidence of sufficient maturity, the impugned provisions do not violate a child's religious convictions under s. 2(a). Consideration of a child's "religious heritage" is one of the statutory factors which a judge must consider in determining the "best interests" of a child under s. 25(8), and expanding the deference to a young person's religious wishes as his or her maturity increases is a proportionate response both to the young person's religious rights and the protective goals of s. 25(8).

Interpreting the best interests standard so that a young person is afforded a degree of bodily autonomy and integrity commensurate with his or her ability to exercise mature, independent judgment navigates the tension between an adolescent's increasing entitlement to autonomy as he or she matures and society's interest in ensuring that young people who are vulnerable are protected from harm. This brings the "best interests" standard in s. 25(8) in line with the evolution of the common law and with international principles, and strikes an appropriate balance between achieving the protective legislative goal while at the same time respecting the right of mature adolescents to participate meaningfully in decisions relating to their medical treatment.

Per McLachlin C.J. and Rothstein J.: The Child and Family Services Act is a complete code for medical decision-making for or by apprehended minors. It requires the judge to be satisfied that a treatment order is in the child's best interests by undertaking an independant analysis of all relevant circumstances and the factors in s. 2(1) of the Act, including the child's needs, mental and emotional maturity and preferences. This multi-factored "best interests of the child" approach required by s. 25(8) does not operate unconstitutionally in the case of a child under 16 who possesses capacity to make a treatment decision and understands the nature and consequences of the treatment.

Section 25(8) of the Child and Family Services Act does not violate s. 7 of the Charter. This provision, although it deprives a child under 16 of the "liberty" to decide her medical treatment and may impinge on her "security of person", does not function in a manner that is contrary to the principles of fundamental justice. The s. 7 liberty or autonomy right is not absolute, even for adults, nor does it trump all other values. Limits on personal autonomy that advance a genuine state interest do not violate s. 7 if they are shown to be based on rational, rather than arbitrary grounds. Here, when the relationship between s. 25(8) and the state interest at stake are considered, the statutory provision is not arbitrary in the substantive sense. The statutory scheme successfully balances society's interest in ensuring that children receive necessary medical care on the one hand, with the protection of their autonomy interest, to the extent this can be done, on the other. The legislative decision to vest treatment authority regarding under-16 minors in the courts is a legitimate response to heightened concerns about younger adolescents' maturity and vulnerability to subtle and overt coercion and influence. This concern with free and informed decision-making animates the legislative scheme and expresses the state's interest in ensuring that the momentous decision to refuse medical treatment by persons under 16 are truly free, informed and voluntary. Age, in this context, is a reasonable proxy for independence. The Act requires the judge to take account of the treatment preference of a minor under 16 as a factor in assessing the child's "best interests", while refusing to give it the presumptive weight it would carry with a child over 16. This distinction reflects the societal reality of how children mature, and the dependence of children under 16 on their parents, as well as the difficulty of carrying out a robust and comprehensive analysis of maturity and voluntariness in the exigent circumstances of crucial treatment decisions in cases such as C's. Further, the s. 7 requirement that the limitation be carried out in a procedurally fair manner is satisfied by the notice and participation requirements in the Child and Family Services Act.

Section 25(8) does not violate s. 15 of the Charter. The distinction drawn by the Act between children under 16 and those 16 and over is ameliorative and not invidious. First, it aims at protecting the interests of minors as a vulnerable group. Second, it protects the targeted group - children under 16 - in a way that gives the individual child a degree of input into the ultimate decision on treatment. This is sufficient to demonstrate that the distinction drawn by the Act, while based on an enumerated ground, is not discriminatory within the meaning of s. 15.

Finally, while the legislative authorization of treatment over C's sincere religious objections constitutes an infringement of her right to religious freedom guaranteed by s. 2(a) of the Charter, the infringement is justifiable under s. 1. The fact that C's aversion to receiving a blood transfusion springs from religious conviction does nothing to alter the essential nature of the claim as one for absolute personal autonomy in medical decision-making. If s. 25(8) is viewed through the lens of s. 2(a), the limit on religious practice imposed by the legislation emerges as justified under s. 1, because the objective of ensuring the health and safety and of preserving the lives of vulnerable young people children is pressing and substantial, and the means chosen - giving discretion to the court to order treatment after a consideration of all relevant circumstances - is a proportionate limit on the right.

The applications judge assumed that C had "capacity" to make the treatment decision but, after considering the relevant factors set out in s. 2(1) of the Child and Family Services Act including her maturity and including her wish not to have the treatment, concluded that treatment was in the child's best interests. This decision conformed to the provisions of the Act. While, if time and circumstances permit, it is optimal for a judge to fully consider and give reasoned judgment on all the factors he or she takes into account, proceeding on the assumption of "capacity" - an assumption that favoured C's autonomy interest - was reasonable in these circumstances where a child's life hung in the balance and the need for a decision was urgent.