Hamilton Health Sciences Corp. v. D.H., et al.

The applicant hospital sought a declaration that J.J., an 11-year-old girl, was a child in need of protection under the Child and Family Services Act (“CFSA”).

J.J. was diagnosed with acute lymphoblastic leukemia (“ALL”). If treated with chemotherapy, J.J.’s physicians believed that she had a 90-95% chance of being cured. The physicians were not aware of anyone surviving ALL without chemotherapy. Shortly after initiating treatment, J.J.’s mother, D.H., decided to discontinue chemotherapy in favor of traditional medicine.  J.J. and D.H. were members of the Six Nations of the Grand River, an aboriginal community, and D.H. had a long-standing belief in the effectiveness of traditional medicine.

Following D.H.’s decision to discontinue chemotherapy, J.J.’s physicians contacted Brant Families and Children’s Services requesting intervention.

The Court held that J.J. was not a child in need of protection under the CFSA. As J.J.’s substitute decision maker, D.H. had a constitutionally protected right to elect for traditional medicine instead of chemotherapy.

Subsection 37(2)(e) of the CFSA states that a child is in need of protection if “the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment” (2014 ONCJ 603 at para 55). By applying the test set out by the Supreme Court of Canada in R v. Van der Peet, the Court determined that D.H.’s pursuit of traditional medicine was an aboriginal right guaranteed to her by section 35(1) of the Constitution Act, 1982. To be protected as an aboriginal right under section 35(1), an activity must constitute a central and significant part of the culture of that particular aboriginal group. The Court, relying on expert testimony, accepted that the practice of traditional medicine is an integral component of the identity of the Six Nations. Thus, D.H., acting in the capacity of SDM for J.J., had a constitutionally protected right to discontinue chemotherapy in favour of traditional medicine.

Six months after releasing its reasons for judgment, the Court revisited its decision to clarify that the best interests of the child are always paramount in determining whether (s)he is a child in need of protection. The court clarified that, in this case, D.H.’s aboriginal right to pursue traditional medicine was but one factor considered in determining what was in J.J.’s best interests. Further, in the interim, the parties had come to an agreement whereby J.J. would be treated using both chemotherapy and traditional medicine.

“One of the issues raised by the court during the hearing was the issue of integrity.  To this end, I would reiterate how the evidence points to D.H. as being deeply committed to her longhouse beliefs and her belief that traditional medicines work.  She has grown up with this belief.  This is not an eleventh-hour epiphany employed to take her daughter out of the rigors of chemotherapy.  Rather it is a decision made by a mother, on behalf of a daughter she truly loves, steeped in a practice that has been rooted in their culture from its beginnings.” Para. 80.

“D.H.’s decision to pursue traditional medicine for her daughter J.J. is her aboriginal right. Further, such a right cannot be qualified as a right only if it is proven to work by employing the western medical paradigm. To do so would be to leave open the opportunity to perpetually erode aboriginal rights.” Para. 81.