Cases & Decisions

AC v. Director of Child and Family Services [Manitoba] [Health Care, Consent and Capacity]

Court: Supreme Court of Canada, 2008

JFCY was granted intervener status in a case where, A.C., a 14 year old girl challenged provisions in Manitoba’s child welfare legislation that authorized child protection authorities to override her refusal of a blood transfusion through a court order. She was found by doctors to have capacity to make medical decisions, but the court ruled that a blood transfusion was in her best interests and ordered that she be forced to undergo the procedure.  The Appellant argued that this breached her rights under the Charter to security of the person (s.7); equality (s.15); and freedom of religion (s.2 (a)) as she was treated differently than children 16 and over. For children under 16 the legislation authorized the court to order the treatment if it considered it to be in the “best interests” of the child. For those over 16 no treatment could be ordered by the court without the child’s consent unless the court was satisfied that the child lacked capacity to understand the relevant information or consequences of the treatment decision.

The majority of the Court found that when the “best interests” standard is applied in a way that takes into increasingly serious account the young person’s views in accordance with his or her maturity in a given treatment case the legislation was constitutional. The legislation if properly interpreted, gave a young person a degree of bodily autonomy and integrity commensurate with his or her ability to exercise mature, independent judgment.  In order for a correct application of the legislation to take place, a young person under the age of 16 must be provided with an opportunity to lead evidence of their capacity and sufficient maturity to make medical choices and a rigorous assessment of this must take place regardless of their age. Ultimately, however the Court may (or may not) give effect to the young person’s view and it is still the Court that makes the final decision about what is right for the young person.

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