International Law

A.C. v. Manitoba : Accommodating the ?Best Interests? of Mature Minors

By Daniel Del Gobbo

The Constitutionality of Compelling Medical Treatment in Children

On Friday, the Supreme Court of Canada released judgement in A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, a case which navigates the complicated interplay of a mature child?s right to autonomous decision-making and biomedical ethics.

The claimant A.C. was 2 months shy of her 15th birthday when she was admitted to hospital for lower gastrointestinal bleeding, a result of Crohn?s disease. As a devout Jehovah?s Witness, she had previously completed an advance medical directive with specific instructions that she not receive blood transfusions even in situations of an emergency.

Once her condition worsened and she persisted in her refusal to receive blood, the Director of Child and Family Services apprehended her as a child in need of protection under section 25(8) of Manitoba?s Child and Family Services Act, C.C.S.M. c. C80, which enables the courts to order medical treatment ?in the best interests? of children under 16 years of age. A treatment order was soon granted, and A.C. was administered three units of blood despite her protestations. The transfusions were successful and the claimant made a full recovery, though she soon appealed the treatment order and challenged the constitutionality of legislation permitting it.

A.C. argued that on its face, s. 25(8) grants little deference to the capacity of children to make competent medical decisions. Its far-reaching power presumed that the ?best interests? of children 16 or over are best served by allowing their views to be determinative in directing the course of treatment, while those under 16 are presumed to lack sufficient capacity. She argued that so-called ?mature minors? who have not yet reached the age distinction set forth by the section but still demonstrate capacity enjoy little right to self-determination in health care.

An Evolving Standard of ?Best Interests?

Abella J. for the majority challenges this reductive interpretation. Noting that preambulary clauses of the CFSA stipulate that ?the child?s mental, emotional and physical stage of development? as well as ?the views and preferences of the child where they can be reasonably ascertained? are matters relevant to a determining a child?s ?best interests?, she refigures s. 25(8) as operating within a more socially responsive scheme.

Specifically, Abella J. appreciates that a child?s transition from childhood to adulthood is a continuous one, with parental rights gradually yielding to the child?s right to autonomous decision-making throughout the course of their development. She proposes that the CFSA?s ?best interests? standard operate on a sliding scale of scrutiny, with the child?s views becoming increasingly persuasive as the child achieves greater intelligence and awareness to enable her to understand fully the interests engaged. Such a generous scheme allows for the potentiality that ?in some cases, courts will inevitably be so convinced of a child?s maturity that the principles of welfare and autonomy will collapse altogether and the child?s wishes will become the controlling factor? in directing the course of medical treatment. It is, after all, in the child?s best interests to respect her autonomy to the extent that her maturity allows. Given that s. 25(8) operates as such, it withstands constitutional scrutiny and A.C.?s appeal is dismissed.

At first rub, Abella J.?s innovative reading of the CFSA provides the courts an optimal means to gauge when a mature minor?s own idiosyncrasies ought to override public health objectives. Her formulation takes account of the child?s mental, emotional, and physical needs; her mental, emotional, and physical state of development; her unique views and preferences; as well as her religious heritage. Abella J. herself states that ?the best interests standard is necessarily individualistic.?

Unpacking the ?Individualistic? Approach

By her own admission, Abella J.?s ?individualistic? approach recalls debate concerning the utility of age distinctions generally. Such distinctions are currently employed to determine when a person can marry, vote, drive, consent to sexual intercourse, and accrue liability as an adult in some criminal and civil contexts.

I would concede that demarcating an age of maturity is a practical mode of ordering our society, in that procedures for assessing many individuals? eligibility for public benefits and penalties is expedited by only requiring a brief determination of age, rather than an intricate weighing of the various maturity indicators that Abella J. mandates in s. 25(8) determinations. However, and despite the specific age chosen in most legal contexts being reasonably related to legislative goals underpinning them, these distinctions of maturity often smack of a certain artificiality.

To illustrate my point by way of a personal anecdote, as I was graduating high school in spring of 2004, I distinctly remember chatting with my former Civics teacher about the various personalities running for public office in the imminent federal election. I had also been bemoaning my legislated inability to vote for my preferred candidate because I had yet to reach the requisite age, as I believed myself (very immodestly!) to possess the requisite emotional intelligence, depth of experience, and social awareness to make an informed choice. At the same time, I could acknowledge the persuasive reasons informing the state?s decision not allowing youths to vote - these legislative goals did reasonably accord with the age distinction it had set. And yet, I still persisted in writing a letter (rather ambitiously) to my Minister of Parliament requesting that some exception to the rule be made ? why could engaged youth not testify to their independent political consciousness somehow, to be adjudicated individualistically by a public official, thereby earning them the right to vote alongside ostensibly more ?mature? adults?

With the benefit of hindsight, I now appreciate that my proposal would be a difficult one to implement efficiently, though I must say that I do still sympathize with its objectives. Further, its central appeal for a subjective capacity determination is not unlike the Supreme Court’s holding in A.C. v. Manitoba, which does well to afford the courts greater discretion in assessing maturity. In my view, if only our scant public resources permitted, supplanting age distinctions with individualistic schemes in various legal fora would be a most fair and socially responsive means of ordering affairs.

Full post as published by The Court on June 29, 2009 (boomark / email).