JFCY intervened at the Divisional Court in a judicial review about the right of an Indigenous girl child to refuse an unwanted genital exam. The child was experiencing symptoms of a urinary tract infection, and instead of reviewing the urine screen, the physician insisted on completing a genital examination of the child. The child clearly and unequivocally refused the genital examination, physically resisting and saying no. The medically unnecessary genital examination was performed on the seven year old child against her clear wishes.
The family made a complaint against the physician, and there is a lengthy procedural history (including prior complaints that dealt with allegations of anti-Indigenous racism), but the core issue at the recent judicial review was concerns that the regulatory bodies, in reviewing the complaint, had failed to engage with health care consent law as it applies to minors.
As interveners, JFCY successfully argued that a decision cannot be reasonable where it ignores the right of a capable child to consent or refuse treatment under the Health Care Consent Act. A child’s right to autonomy and bodily integrity is informed by Charter values of security of the person and the child’s rights under the United Nations Convention on the Rights of the Child to health, bodily integrity, and non-discrimination, among others.
In its reasons, the Divisional Court held consent is “not a minor or collateral issue”. A child has just as much of a right to consent to, or refuse, treatment as an adult. The fact that the physician believed she had “implied consent” might be a rationale, but that belief could not, and did not, displace the child’s legal right to refuse treatment, as the doctor did not assess the child’s capacity or rely on substituted consent.
