Family of aboriginal girl with cancer can opt for traditional medicine: Judge

The family of an 11-year-old aboriginal girl with cancer has a constitutional right to opt for traditional medicine over chemotherapy, an Ontario judge ruled Friday in what some observers called a landmark decision.

BRANTFORD, Ont. — The family of an 11-year-old aboriginal girl with cancer has a constitutional right to opt for traditional medicine over chemotherapy, an Ontario judge ruled Friday in what some observers called a landmark decision.

A hospital that had been treating the First Nations girl sought to have the child apprehended and placed back into chemotherapy after her mother had pulled her out of the treatment earlier this year, but its application was dismissed by Judge Gethin Edward.

The decision doesn’t prevent the girl from seeking treatment in a hospital in the future though, and one lawyer in the case said the child had already been referred to an oncologist at a different hospital.

The case in Brantford, Ont., west of Hamilton, saw the McMaster Children’s Hospital take the Brant Family and Children’s Services to court over the issue of the girl’s treatment.

The girl, whose name cannot be revealed due to a publication ban, was receiving chemo before her mother removed her in mid-September to take her to Florida for alternative therapy, which involved herbal treatments and lifestyle changes.

At that point, the hospital asked the BFCS to intervene to ensure the girl continued her chemotherapy but the agency refused, triggering the legal case.

The girl and her immediate family were not in court on Friday, but the decision was hailed by the chief of the Six Nations Reserve, where the child is from.

“I don’t think we’re risking our kids’ lives. Her mother loves her to the world and back,” said Chief Ava Hill. “We’ve been practising traditional medicine, we’ve never stopped, and now we’re just going to do it more openly.”

The court’s decision also sent a message about the right of aboriginal communities to look after their own, said Hill.

“No longer are we going to let people come and take our kids,” she said. “The residential school era has ended, we’re moving on, now we’ve got a lot of healing to do because of that era and we’re not going to let anybody else take our kids anymore.”

A lawyer representing the BFCS said aboriginal rights were fundamental to the case and should be recognized.

“I think this is a landmark case and I think it will ripple at length,” Mark Handelman said in an interview.

“It recognizes the traditional rights of First Nations people to practice their own medicine, secondly it’s a reminder to health practitioners that it’s important to factor into treatment proposals and recommendations the wishes, values and beliefs of the patient.”

Handelman said the BFCS refused to apprehend the girl because it took the position that she was not in need of protection, but rather in need of a treatment decision.

The judge hearing the case concluded in his ruling that traditional aboriginal treatments were in existence before First Nations communities were in contact with Europeans, and were consequently entitled to special protection in Canada.

The ruling means the girl is free to pursue traditional treatment for her leukemia instead of chemotherapy, or alternatively, she is also free to decide to return to chemotherapy in the future, Handelman said.

Indeed, the girl and her family are back in Canada after their trip to the U.S., and a referral for the girl has been made to an oncologist at a different hospital, he said.

When asked if the outcome of the case might have been different if the child had not been aboriginal, Handelman said every case was different.

“It’s impossible to answer that question because both health-care cases and child-welfare cases, every one is unique, every one depends on its own facts,” he said.

“A broader aspect to this case is a reminder to all of us that medical decisions are never made solely on the basis of the best medical result — individual wishes, values and beliefs come into play.”

The hospital was not immediately available for comment but said it planned to issue a statement later in the day.

At least one expert on constitutional rights said the ruling appeared unusual.

“There really haven’t been court decisions like this relating to this kind of care that have favoured aboriginal rights and traditional aboriginal medicine,” said Cheryl Milne, director of the Asper Centre for Constitutional Rights at the University of Toronto.

There had been some cases in the past where a court had weighed in on choice of treatment for children, Milne said, but decisions had favoured medical treatments.

In the case of a family of Jehovah’s Witnesses, Milne explained that the Supreme Court overruled a teenager’s decision not to have a blood transfusion.

“So the religious rights of the child and the family, although a factor, they were overridden by what the court deemed was in the child’s best interest.”

In this case, however, aboriginal rights appeared to have been a “huge factor,” Milne said.

“That would be different than cases involving religions freedom, for example.”

Friday’s ruling could open the door to aboriginal traditions and rights being given more weight in other cases as well.

“We do have a disproportionate number of aboriginal children in the care of the state and many of them are in non-aboriginal homes,” said Milne. “Upholding the aboriginal rights in this kind of a context really also will speak to those kinds of cases too.”

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Commander of the Royal Canadian Navy Vice-Admiral Art McDonald is seen during an interview with The Canadian Press in Ottawa, Wednesday, Dec. 11, 2019. Defence Minister Harjit Sajjan says Admiral Art McDonald has voluntarily stepped down as Chief of Defence Staff due to an investigation. THE CANADIAN PRESS/Adrian Wyld
Admiral Art McDonald steps aside as defence chief amid investigation

Lt.-Gen. Wayne Eyre appointed acting chief of the defence staff

Pumpjacks draw oil out of the ground near Olds, Alta., Thursday, July 16, 2020. A new report suggests the economic impact of the pandemic led to a massive increase in federal aid to Canada’s oil patch. THE CANADIAN PRESS/Jeff McIntosh
Pandemic increased direct aid to fossil fuel producers, new study shows

At least $1.9 billion in direct aid to traditional energy sector last year

Glen Carritt organized a United We Roll Canada convoy around May 2019 that travelled in 2019. An independent review said he breached council code of conduct rules multiple times. (File photo by Advocate staff)
Former Innisfail town councillor breached code of conduct many times, says review

Consultants say 29 of 36 alleged breaches by Glen Carritt had merit

Meteor spotted over Edmonton, Alta., on Feb. 22, 2021 by several, who took to social media to share their surveillance camera captures. (@KixxAxe/Twitter)
VIDEO: Fireball meteor streaks across sky, spotted by early-morning risers in Alberta, B.C.

Videos of the quick streak of light flashing across the sky before 6:30 a.m. MST

Calgary Flames goaltender David Rittich (33) makes a save on Toronto Maple Leafs left wing Jimmy Vesey (26) as Flames' Christopher Tanev (8) and Joakim Nordstrom (20) defend during first-period NHL action in Toronto on Wednesday, February 24, 2021. THE CANADIAN PRESS/Frank Gunn
‘Misunderstood’ Nylander ties game late, scores winner as Leafs beat Flames 2-1 in OT

‘Misunderstood’ Nylander ties game late, scores winner as Leafs beat Flames 2-1 in OT

Team Canada skip Kerri Einarson yells to her sweepers at the Scotties Tournament of Hearts in Calgary, Alta., Friday, Feb. 19, 2021.THE CANADIAN PRESS/Jeff McIntosh
Young Quebec team in the hunt to join Einarson, Homan in Hearts’ championship round

Young Quebec team in the hunt to join Einarson, Homan in Hearts’ championship round

A crane is used to lift a vehicle following a rollover accident involving golfer Tiger Woods, Tuesday, Feb. 23, 2021, in Rancho Palos Verdes, Calif., a suburb of Los Angeles. Woods suffered leg injuries in the one-car accident and was undergoing surgery, authorities and his manager said. (AP Photo/Mark J. Terrill)
Golf without Woods? Battered leg brings it closer to reality

Golf without Woods? Battered leg brings it closer to reality

Montreal Canadiens head coach Claude Julien looks towards the ice as his team takes on the Ottawa Senators during second period NHL action in Ottawa on Tuesday, Feb. 23, 2021. The Canadiens have fired head coach Julien and associate coach Kirk Muller. THE CANADIAN PRESS/Sean Kilpatrick
Montreal Canadiens fire head coach Claude Julien, associate coach Kirk Muller

Montreal Canadiens fire head coach Claude Julien, associate coach Kirk Muller

Canada midfielder Sophie Schmidt (13) attempts a shot on goal during the first half of a SheBelieves Cup women's soccer match against Argentina, Sunday, Feb. 21, 2021, in Orlando, Fla. THE CANADIAN PRESS/AP-Phelan M. Ebenhack
Canadian women exit SheBelieves Cup on losing note, blanked 2-0 by Brazil

Canadian women exit SheBelieves Cup on losing note, blanked 2-0 by Brazil

Supporters pray outside court in Stony Plain, Alta., on Wednesday, Feb. 24, 2021, as a trial date was set for Pastor James Coates of GraceLife Church. He is charged with holding Sunday services in violation of Alberta's COVID-19 rules and with breaking conditions of his bail release. THE CANADIAN PRESS/Jason Franson
Trial date for jailed Alberta pastor charged with breaking COVID-19 health orders

Trial date for jailed Alberta pastor charged with breaking COVID-19 health orders

Alberta Premier Jason Kenney shakes hands with Jason Nixon, government house leader and environment minister, after Nixon is sworn into office in Edmonton on April 30, 2019. THE CANADIAN PRESS/Jason Franson
Alberta eyes recall legislation, focuses on COVID-19 aid in spring sitting

Alberta eyes recall legislation, focuses on COVID-19 aid in spring sitting

CFL commissioner Randy Ambrosie attends a a news conference in Surrey, B.C., on Thursday, February 28, 2019. The CFL faces more challenges in its 2021 return than it did last year when it was forced to cancel its season due to the COVID-19 pandemic. THE CANADIAN PRESS/Darryl Dyck
CFL will have to appease more levels of government to get 2021 protocols approved

CFL will have to appease more levels of government to get 2021 protocols approved

Most Read