How Bright is the Line: Children, Natural Remedies and Consent to Care

Posted By Jonathan Adessky & Matthew Dankner

In a diverse society, one can reasonably expect a diversity of child-rearing practices. Whether motivated by culture, religion or skepticism towards Western medicine, some parents opt to treat their children with various “unconventional treatments”. In fact, in the United States, it was found that use of complementary and alternative medicine for children is growing. What are the boundaries within which natural treatment for children resides, from both a legal and a medical perspective? We propose that legal and medical practitioners alike ought to keep an open mind in dealing with natural treatments consented to on behalf of children, while maintaining a healthy dose of skepticism and recognizing the boundaries set by paternalistic state regulation.

Canadian Legal Perspective

The extent to which natural medicine can provide a legally permissible alternative is restricted by the paternalistic voice of the law. Statutory protections for children impose a duty of care on parents to act reasonably in consenting to medical treatment on behalf of their children, to the extent that a refusal of conventional treatment options can qualify as a criminal act, even where alternative treatment plans have been adopted and irrespective of their subjective intent. In the recently decided case of R v Lovett, a mother opted to use natural remedies to treat her seven-year-old son’s throat infection, resulting in his death.

Pursuant to s. 215(1)(a) of the Criminal Code, parents have an obligation to provide the necessities of life for their kids, a duty which Ms. Lovett failed to perform by failing to seek out proper treatment for her child. Further, in R v Naglik Lamer C.J. established that parent’s intent must be addressed through an objective test, given that “as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities”.

7015509987_1ec05e3a0b_zThe law sets a high bar for a parent’s duty to ensure their child’s well being. The withdrawal of consent to conventional treatment risks criminal action if the child suffers bodily harm as a result. || (Source: Alex Proimos // Flickr)

The criminal justice system can also hold a parent liable for criminal negligence resulting in bodily harm or death of the child. The court in Lovett makes the distinction that, while similar to s. 215, criminal negligence elevates the offence: the departure from reasonable conduct is “more than just “marked” but rather “marked and substantial””. Such a departure, as stated by the court in R v Tutton, gives rise to an inference that the parents had at least some awareness of the risks or were willfully blind to them. If convicted under this head of criminal liability, the parent can face life imprisonment, while a s. 215 conviction carries a maximum sentence of five years. The overarching theme of these cases is that the price to pay can prove rather steep for choosing to treat one’s child with natural remedies in the stead of conventional medicine.

However, it is critical to discern tolerated alternatives from criminal acts. Surely, resorting to natural treatment will not always deprive a child of the necessaries of life. In fact, natural remedies may well provide many benefits by reason of health, religion or otherwise. Our goal is to raise the important questions that parents ought to pose, as the correct answers to such questions are often context-dependent.

The Medical Perspective

Medical practice is moving away from a paternalistic doctor-patient relationship to one that empowers patients to actively participate in important decisions regarding their care. More and more, doctors are giving some deference to parents who reject conventional medicine and prefer to use natural remedies for their children, and for good reason: in many cases, such remedies do work in treating a variety of ailments.

For example, aspirin is derived from bark of the willow tree, since traditional users noted its effectiveness in relieving pain and fever. Many years of study validated this anecdotal evidence, while demonstrating that the benefits of taking aspirin to treat particular ailments outweighed any adverse effects. To this day, much of Western medicine’s therapeutic arsenal is derived from such natural products that have been proven satisfactorily safe and efficacious. In fact, natural medicine is considered a direct pipeline to science-based medicine, with natural remedies that demonstrate value in properly controlled studies being actively developed into commonly used medications by the pharmaceutical industry.

1309697775_b01082fa14_z.jpgConventional treatments and pharmaceuticals are often concentrated extracts of the active ingrediant in natural remedies, such as the anti-inflammatory effects derived from the bark of the willow tree. || (Source: stu // Flickr)

However, care must be taken with regard to the safety of natural products. Among many other examples of natural products causing harm, grapefruit interferes with the metabolism of many life-saving drugs, causing them to reach lethal doses in certain patients. This example supports the point of caution emphasized by doctors when communicating with their patients: “natural” does not always equate to &ldquoi;safe” or “harmless”, particularly if the proposed natural remedies have not been extensively tested in the context of the dose taken and their interactions with other drugs.

Keeping these points of caution in mind, untested natural remedies can play an important role in patient care if employed carefully. Many of these remedies have simply not yet been tested extensively and, if they were, would demonstrate clear benefits. However, the majority of these remedies likely would not demonstrate increased efficacy compared to a placebo. While this may discourage the use of such agents, the placebo effect is a true phenomenon and can lead to improvement in a subset of patients with certain conditions compared to taking nothing at all.

Overall, natural remedies have a role to play in modern medicine, including strengthening the doctor-patient relationship and spurring a placebo effect. This is particularly pertinent to patients of diverse cultural backgrounds or strong personal convictions that highly value natural remedies. However, caution must be taken with these remedies, given their unknown potential to interact with other medications, or even by certain patients desiring to withhold modern treatment from their children.

Aboriginal Rights Exceptions

The status rights of First Nations peoples in Canada are governed by s. 35 of the Constitution Act, 1982. In applying the test from R v Van der Peet, which characterizes an activity as an Aboriginal right if it was a practice integral to a Nation’s culture before European contact, Edward J in Hamilton Health Sciences Centre v. D.H. found that Aboriginal healing practices satisfy the test for protection under s.35 – not without controversy. For this reason, Makayla Sault’s mother was permitted to take her daughter off of conventional chemotherapy in favour of natural treatments despite a 75% chance of survival with the former. The child passed away, and her mother’s decision was considered perfectly legal.

As the Truth and Reconciliation Commission wrote, “the country [Canada] has a rare second chance to seize a lost opportunity for reconciliation”.

The question follows: does s. 35 confer upon First Nations parents an unrestricted right to select traditional treatment for their children? Peter Hogg says otherwise. The constitutional scholar points to R v Sparrow, in which the court states that Aboriginal rights are not absolute and measure up to a balancing test similar to s. 1 of the Constitution. If First Nations healing practices may be subject to infringement in exceptional circumstances, should the court then intervene in cases similar to Makayla’s? Before addressing that question, which is posed without a clear answer in reach, the deep-rooted, systemic discrimination that resulted from undermining integral aspects of First Nations cultures demands serious consideration. As the Truth and Reconciliation Commission wrote, “the country [Canada] has a rare second chance to seize a lost opportunity for reconciliation”. Therefore, we should take care not to dismiss certain practices as quaint or arcane.

Marking the Boundaries

Given the points raised above, how far is too far? While it is impossible to draw a bright line as a definitive answer, we can offer some guidance. Reconciling the legal and medical perspectives places natural medicines somewhere in between two polar ends: absolute illegality and unlimited endorsement. Doctors are keeping an open mind to natural remedies, which are medically valuable to certain extents. However, parents ought not to disregard conventional medicine. If a parent becomes aware of the necessity to provide conventional medicine to a child, be it by observing a deterioration in condition or from a medical professional’s evaluation, failure to do so can result in lengthy jail time.

For First Nations parents, the law may take a more culturally-sensitive position. However, Aboriginal rights are not absolute and may be infringed upon if that infringement is justified. Therefore, jurists, healthcare professionals, and lawmakers have to adhere to an approach of cultural sensitivity and respect for individual choice in the medical context, while recognizing that paternalistic state regulation is desirable in certain cases.

This article was co-authored by McGill University students Jonathan Adessky (B.C.L./LL.B. candidate, Faculty of Law) and Matthew Dankner (M.D., C.M., and PhD. candidate, Faculty of Medicine).

Improving Organ Donation Rates in Canada: Barriers & Solutions to Federal Involvement

Posted By Jonathan Adessky

Canadians have increasingly been donating organs over the past ten years. Shouldn’t we be celebrating? According to the Canadian Blood Services’ early September report, Canada has seen a 23% increase in donations over the past decade. While this is definitely good news, we mustn’t be fully satisfied with our country’s progress on donation rates. According to the International Registry on Organ Donation and Transplantation, Canada lags behind its contemporaries by a large margin. This leads us to wonder: what are we doing wrong? How can Canada catch up to organ donation levels in other Western, industrialized nations?

Canadian Blood Services is a non-profit organization that manages and coordinates national blood and organ donation. We should take pride in the impressive results of their work. According to the organization’s 2015 report, “the national deceased donation rate has risen from 14.1 to 18.2 donors per million population (DPMP)” since 2006; most would agree this counts as an achievement. Nonetheless, the fact remains: Canada has some catching up to do.

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An increasing number of Canadians have registered as organ donors over the past ten years. Shouldn’t we be celebrating?|| (Source: Flickr // Share GK)

The question remains: how and to what extent can the Federal Government help further Canada’s progress? At least one Canadian parliamentarian, Ziad Aboultaif, believed that a federally mandated organ donor registry would help drive growth in the donation rate. In drafting this bill, he put his heart into his work; or, more accurately, his liver, a piece of which Alboutaif donated to his son. The proposed bill intended, in part, to establish a national promotion strategy for organ donation. The Minister of Health would be tasked with producing an annual report detailing the success level of the previous year’s strategic plan, with a set of recommendations for further improvement.

Despite broad support for the its stated goals, Aboultaif’s proposed private member’s bill was defeated in June. Parliament faced a major obstacle in that organ donation falls ultra vires federal jurisdiction. One doesn’t need to consult a learned lawyer to reach such a conclusion; a glance at the Constitution Act, 1867 would suffice. Provincial authority over matters relating to organ donation flows from jurisdiction to legislate on hospitals, as per section 92 of the Act.

Given these constitutional limitations, what role can the Federal Government play in furthering Canada’s progress promoting interest in organ donation? Records of the House debate indicate strong moral support for the Bill; for example, Kamal Khera, Parliamentary Secretary to the Minister of Health, admits that Aboultaif’s initiative is worthy of praise. She elaborates on how the Trudeau government is committed to further supporting the Canadian Blood Services, and how a formalization of the existing interprovincial sharing guideline is underway. Clearly, Ottawa is determined to help reform the system, but the ‘how’ remains murky.

Parliament faced a major obstacle in that organ donation falls ultra vires federal jurisdiction.

According to Canadian Blood Services, most of the provinces already have high registration rates. To add to that, CEO Dr. Graham Sher states that a federally-coordinated national registry alone may prove insufficient to realize the projected gains. If this holds true, the Federal Government need not worry about organizing a centralized registry; a truly daunting task. What alternatives can Ottawa turn to in its efforts to improve the organ donation system, besides the creation of a registry?

International best practice comparisons may prove useful in this endeavour; for example, one might wonder how Spain’s DPMP rests at more than double that of Canada, at a rate of 39.7. The key to Spain’s success may result from the manner in which its intensive care units operate. Kim Young, director of donation and transplantation for Canadian Blood Services, points to the staffing of Spanish ICU facilities with donation specialists as a the key to their success. Clearly, it would be wise and fair to make this approach a priority in tackling subpar growth in Canadian organ donation.

Ottawa has proven generous in directly funding third party organizations, and where money flows, influence follows. This relationship holds true especially as organizations depend more and more on these funds in their financial planning. Since 2008, the provinces and the Federal Government have collectively invested $64 million in the Canadian Blood Services. While the aforementioned constitutional limitations restrict Parliament from direct intervention, Ottawa is still in a good position to effect change from the sidelines.

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Jurisdictional boundaries do not necessarily fence off healthcare from federal involvement. || (Source: Flickr // mhambourger)

The weight placed on federal input is largely driven by its generosity and on the system’s dependence on external financial contributions. If the Canadian government wants to advance a strategic plan, its voice will surely be heard as it continues to provide funding. If the Trudeau government is as passionate about the issue as Khera makes it out to be, then it will consider reworking its strategy. Federal funding ought to entail guidelines that factor in best practices established by medical professionals in Spain.

Through deconstruction of the issue at hand, a subtle and important insight emerges: jurisdictional boundaries do not necessarily preclude federal involvement in healthcare. Yes, these matters fall under provincial jurisdiction. No, the Federal Government cannot directly manage national programs that clearly fall outside of its jurisdiction. Just because it cannot hop the constitutional fence, however, what barrier exists to prevent federally-supported third-party charities from taking action where the government cannot?