Administering care without consent in F.D. c. Centre universitaire de santé McGill (Hôpital Royal-Victoria)

Posted By Jennyfer Pelletier

On January 4th 2015, the appellant was hospitalized due to convulsions caused by alcohol withdrawal. The appellant, 49, is a married father who has been struggling with an alcohol consumption problem for many years. During his hospitalization, the Court of Quebec authorized a motion for confinement in an institution to last until May 21st 2015.

At the end of January, the appellant’s situation improved and, while he remained in the hospital, he left the emergency unit. On February 10th 2015, Dr. Tourian, the appellant’s psychiatrist, stated in a report that the patient required housing in a care unit that would be equipped to manage his condition and potential deterioration. The appellant, however, manifested a desire to go home. Dr. Tourian believed the appellant was inapt and incapable of providing consent. Consequently, a month later, he instituted a motion at the Superior Court seeking an authorization for care that would authorize the hospital and the appellant’s psychiatrists, or any delegated physician or nurse, to administer medications and place the appellant in a care unit. Continue reading “Administering care without consent in F.D. c. Centre universitaire de santé McGill (Hôpital Royal-Victoria)”

Recap of the 9th Annual MJLH Colloquium: Assisted Reproduction Law Reform Post-Term in Canada

Posted By Chris Laliberté

On February 6, 2016, the McGill Journal of Law and Health hosted its 9th annual Colloquium to explore the legal framework surrounding assisted reproduction practices in Canada. The controversial issue brought together doctors, lawyers, and professors to discuss the impact of the Assisted Human Reproduction Act (AHRA) and the criminalization of third-party reproduction on Canadian families.

Panelists for the day included fertility law practitioners Sara R. Cohen and Sherry Levitan, doctors Arthur Leader and Neal Mahutte, and professors Margaret Somerville and Françoise Baylis.

Me Sara R. Cohen opened the discussion with a practical, what she called “on the ground”, perspective of the issue through her work with clients seeking to start a family through surrogacy. She spoke about how in her work with Fertility Law Canada, she aims to help hopeful parents-to-be overcome the complex legal hurdles that mark the track from the pre-conception planning stage to the finalization and execution of the surrogacy contract.

Me Cohen argued that the state of the law in Canada, in particular the criminal sanctions imposed pursuant to s. 6(1), 6(2), 6(3) and 7(1) of the AHRA, contravene the regulatory purposes of protecting women who wish to provide surrogacy services, and families who have chosen surrogacy as the preferred, and in some cases, only means to start a family. For example, the s. 6(1) prohibition on payment has created a spirit of secrecy due to fear of harsh penalties under the law, says Me Cohen. Although she admitted to no knowledge of charges brought against women offering surrogacy services or the families who hired them, the practitioner emphasized that the threat of enforcement alone causes harm through engendering reproductive tourism and a lack of medical safety from deregulation.

Professor Margaret Somerville then took the podium to defend the Canadian criminal prohibitions as a means of preventing the commodification of human lives and bodies. She first contended that the current debate suffered from an error in perspective: the needs of the parents are placed at the forefront while the best interests of the child are seemingly left out of consideration. Professor Somerville went on to claim that the child, in the context of a surrogacy contract, is treated as a product rather than as a party. Her reasoning framed the discussion as a conflict between the rights of a child to a happy life and the rights of adults to be parents. She argued in defense of a child’s right to the equal freedom afforded by a natural birth through the “genetic lottery” rather than the predestination of a genetic design, which she likened to manufacturing a product.

Professor Somerville also argued that the decriminalization of surrogacy services would threaten the safety of socioeconomically disadvantaged women, who are most vulnerable to exploitation. She compared the power dynamics to those involved in prostitution, making the claim that consent to these arrangements cannot be free and enlightened when a woman in a desperate situation has to choose between offering her body or starving. Me Cohen would rebut this point during the Q&A period, arguing that the situation is not so bleak in the Canadian context, and that proper regulation would advantage and empower women in our healthcare system, not subject them to exploitation.

Professor Françoise Baylis closed out the first half of the day with a critical look at what the legislation states and, with greater scrutiny, what it fails to say. In her presentation, she argued that although the legislation, as it is written, clearly defines the state of the law, Health Canada’s reliance on an evasive interpretation of outdated legislation allows for uncertainty due to voluntary omissions where clear regulatory guidelines could dispel any need for quasi-legal circumnavigation. A defined regulatory framework would allow purchasers and providers of surrogacy services to understand how best to proceed without risks of sanctions. Further, the inaction of Health Canada in enforcing the current legislation only creates greater confusion as to what is and is not permitted, or, what will be allowed in spite of the statutes.

Dr. Arthur Leader, a specialist in fertility treatments, opened the second half of the Colloquium with a brief, but insightful comparison of the legislation regarding in vitro fertilization (IVF) and surrogate pregnancies in the UK and in Canada. His presentation holds the UK model as an example for what fertility medicine regulations could look like in Canada after substantial revision. The Canadian model could better serve its people by lifting or loosening restrictions on surrogacy and IVF research and treatment, which would allow the Canadian healthcare community to drive innovation in the field and give Canadian citizens domestic access to the services they need, rather than forcing them to travel abroad.

The Q&A session that followed, co-chaired by Dr. Leader, Dr. Neal Mahutte, and Me Sherry Levitan, touched on a broad spectrum of issues faced by legal and medical practitioners in the field of assisted reproduction. The panel responded to concerns ranging from the framework for IVF funding, to the lack of statutory guidance in disputes over the ownership of frozen embryos, to the effects of donor anonymity on a child’s rights to access their medical history.

Overall, this year’s colloquium has made clear that the legal framework surrounding third-party reproduction in Canada remains oblique at best. As legislators continue to grapple with ethical concerns and struggle to keep pace with advances in medical technology, the absence of clearly defined regulations poses many challenges for Canadians in need of these services to start a family. Until the government addresses this gap in the law, collaboration between fertility doctors and fertility lawyers will continue to prove invaluable in granting these families access to the treatments and services they require.

To join in on the discussion, make your voice heard on the MJLH website, Facebook page, or Tweet @McGill_JLH. For those interested in getting involved with fertility law, Dr. Baylis invites passionate writers to contribute to her website, Impact Ethics. For law students interested in the practice of fertility law, Me Sherry Levitan invites you to contact her about a student position with her firm in Toronto.

Youth Secure Care: The Politics of Forced Treatment

Posted By Lauren Hanon

It is common to hear parents say they would do anything for their kids. When it comes to a child’s life, ‘doing anything’ tends to be literal. It is this feeling of desperation felt by parents and guardians of children that motivates provincial legislation to enact youth secure care. When a child suffers from serious drug and alcohol abuse, parents or guardians know that the risks involved with such behavior are life threatening. In these circumstances, parents or guardians can seek a court order to have their child apprehended and forced into secure care for detox and treatment over a period of time approved by the court. Youth secure care is a provincial initiative, however. Not all provinces have the legislation that permits these programs.

In Alberta, there is the Protection of Children Abusing Drugs Act, the Protection of Sexually Exploited Children Act, and the Child, Youth and Family Enhancement Act; Saskatchewan has the Youth Drug Detoxification and Stabilization Act; Manitoba has the Youth Drug Stabilization (Support for Parents) Act; Ontario has the Child and Family Services Act; Quebec has the Youth Protection Act; New Brunswick has the Family Services Act; and Nova Scotia has secure care provisions within the Children and Family Services Act. In all of these Acts, there are varying areas of entry for youth. For example, while legislation may allow the parents to seek a court order to have their child apprehended according to one Act, in another province, a child who is already accessing other social services may find a different way into secure care. More specifically, a parent may obtain a court order in Alberta for their child whereas in British Columbia, a child may only find their way into secure care through the criminal justice system. The territories, British Columbia, Newfoundland and Labrador, and Prince Edward Island do not have any legislative provisions allowing youth to be taken into secure care for detox and treatment against their will. British Columbia had a Secure Care Act that never came into effect for political reasons in 2001. However, the province now seems ready to take another look into the issue.

Many factors contribute to the presence or absence of youth secure care legislation in a province or territory. Notably, it appears politics plays a large role, as is evidenced in British Columbia. I had the opportunity to talk to Dr. Grant Charles, a professor at the University of British Columbia in the School of Social Work, about this issue. In the paragraphs that follow, the information that I present is largely derived from my conversation with Dr. Charles. I have done my best to reproduce and paraphrase what Dr. Charles has shared with me.

Youth secure care is a sensitive issue politically because it involves individual people’s liberties. Secure care and forced treatment for an adult violates their civil liberties, which are protected by the Canadian Charter of Rights and Freedoms. If legislation violates a person’s Charter rights, the violation must be “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” according to section 1 of the Charter. In other words, there has to be a really good reason for a Charter violation to be justified. In the case of youth secure care, we are talking about minors. We have many legal restrictions on what minors can and cannot decide for themselves, but when it comes to parents or guardians deciding whether their child needs to be forced into treatment programs, it seems a little less comfortable to assert that a youth does not have any right or a say in the matter.

Depending on whom you talk to, the goals may differ for the various programs. What a government looks for in implementing secure care legislation is effective drug treatments for minors that work to rebuild families and ensure that the youth patient overcomes his or her drug abuse. For parents, the most they might hope for is for their child to stay alive. What health care professionals and social service workers that run the programs hope for could differ as well. Therefore, asking “do these kinds of programs work?” is a difficult and complex question and the answer will vary depending on what ‘working’ means. For these reasons, it can be difficult politically to talk about the issue of youth secure care seeing as there is so much emphasis put on individual rights and where there are so many stakeholders.

Another factor that complicates the enactment of such legislation is the lack of studies on existing youth secure care programs. Indeed, what would such a study even look like? Which factors would be assessed, what standards would be used to determine if the legislation is working as intended? Given that most youth secure care programs are short term, ranging from a 10-day immediate detox to extended stays, all varying between provinces, the outcomes from patients can only be measured in the short term. Long-term outcomes would be much more difficult to assess as it would involve extensive monitoring. Many programs currently in existence will have their own internal monitoring, methods of assessment, records and statistics, but this information is not publicly available. For evidence-based policy decisions in provinces that do not have youth secure care, the lack of studies and statistics from other provinces’ programs is discouraging.

According to Dr. Charles, we need to understand and appreciate the issues surrounding youth drug and alcohol abuse (and other dangerous and risky behavior) as family and community issues. Re-centering the focus from an individual’s rights perspective to one that puts more value on family and community rights will result in a more accurate grasp of the reality of these kinds of programs. The problems and challenges that a child engaged in extremely dangerous behavior faces are not in a vacuum. Everyone in that child’s life is affected. Dr. Charles suggests that the real outcome of youth secure care is that it gives the child and the parents or guardians a “break”. The short period of the program allows the parents to have some time to rest knowing that their child is safe. This breather ‘reboots’ the natural strengths and support systems that were previously exhausted and presumably at a point of ineffectiveness. The child becomes stabilized and the family has another chance to move forward.

In the provinces where youth secure care legislation does not exist, mental health institutionalization and the youth criminal justice system tends to fill in the gaps where other social and health services fail, according to Dr. Charles. However, youth who go through these systems tend not to receive the care and support that they need to move forward positively in their lives. Youth secure care programs are a necessary part of family and community values that are missing from other governmental means to address challenges that are faced by youth engaging in dangerous and risky behavior. A report released last year by the Representative for Children and Youth in British Columbia titled Paige’s Story documents the heartbreaking life of a teenage girl named Paige and her death at the age of 19. The report claims that her death was the result of the “institutional indifference,” where the governmental agencies and foster families and the youth criminal justice system failed Paige at every step of her life. One of the recommendations of the Report is for the Ministry of Children and Family Development to “explore the creation of a form of secure care” that would allow for the apprehension of vulnerable children to remove them from situations that are unacceptably dangerous.

It is of the utmost importance that provinces and territories that do not currently have secure care legislation move towards enacting it as soon as possible. It is not a perfect solution to the harms of youth drug and alcohol abuse, but secure care would go a long way in mitigating many of the tragic and avoidable circumstances that happened to Paige. According to Dr. Charles, the vast majority of youth that he saw going through secure care programs were extremely grateful for such interventions and were glad that they had the opportunities for treatment and regenerating family and community ties. Secure care is needed to move towards better care for youth in the hopes of making sure that “institutional indifference” will not fail another child like it did for Paige.