A.C. v. Manitoba: Bioethics and the “Best Interests” of Mature Minors
The Constitutionality of Compelling Medical Treatment of Children
On Friday, the Supreme Court of Canada released judgment in A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, a case which navigates the complicated interplay of a mature minor’s right to autonomous decision-making and the state’s responsibility to keep vulnerable children from harm.
The claimant A.C. was two months shy of her 15th birthday when she was admitted to hospital for lower gastrointestinal bleeding, a result of Crohn’s disease. As a devout Jehovah’s Witness, she had previously completed an advance medical directive with specific instructions that she not receive blood transfusions even in situations of an emergency.
Once her condition worsened and she persisted in her refusal to receive blood, the Director of Child and Family Services apprehended her as a child in need of protection under section 25(8) of Manitoba’s Child and Family Services Act, C.C.S.M. c. C80, which enables the courts to order medical treatment “in the best interests” of children under 16 years of age. A treatment order was soon granted and A.C. was administered three units of blood despite her protestations. The transfusions were successful and the claimant made a full recovery, though she soon appealed the treatment order and challenged the constitutionality of legislation permitting it.
A.C. argued that on its face, s. 25(8) grants little deference to the capacity of children to make competent medical decisions. Its far-reaching power presumed that the “best interests” of children 16 or over are best served by allowing their views to be determinative in directing the course of treatment, while those under 16 are presumed to lack sufficient capacity. She argued that so-called “mature minors” who have not yet reached the age distinction set forth by the section but still demonstrate capacity enjoy little right to self-determination in health care.
An Evolving Standard of “Best Interests”
Abella J. for the majority challenges this reductive interpretation. Noting that preambulary clauses of the CFSA stipulate that “the child’s mental, emotional and physical stage of development” as well as “the views and preferences of the child where they can be reasonably ascertained” are matters relevant in determining a child’s “best interests”, she refigures s. 25(8) as operating within a socially responsive scheme.
Specifically, Abella J. appreciates that a child’s transition from childhood to adulthood is a continuous one, with parental rights gradually yielding to the child’s right to autonomous decision-making throughout the course of her development. She proposes that the CFSA’s “best interests” standard operate on a sliding scale of scrutiny, with the child’s views becoming increasingly persuasive as the child achieves the intelligence and awareness required to understand fully the interests engaged.
Such a generous scheme allows for the potentiality that “in some cases, courts will inevitably be so convinced of a child’s maturity that the principles of welfare and autonomy will collapse altogether and the child’s wishes will become the controlling factor” in directing the course of medical treatment. It is, after all, in the child’s best interests to respect her autonomy to the extent that her maturity allows. Given that s. 25(8) operates as such, it withstands constitutional scrutiny and A.C.’s appeal is dismissed.
At first rub, Abella J.’s innovative reading of the CFSA provides the courts an optimal means to gauge when assertions of bodily integrity ought to override public policy. Her formulation takes account of the child’s mental, emotional, and physical needs; her mental, emotional, and physical state of development; her unique views and preferences; as well as her religious heritage. Abella J. herself states that “the best interests standard is necessarily individualistic.”
Extending the “Individualistic” Approach
By her own admission, Abella J.’s “individualistic” approach recalls debate concerning the utility of age distinctions generally. Such distinctions are currently employed to determine when a person can vote, marry, drive, gamble, consume alcohol, own a firearm, sell property, consent to sexual relations, and accrue liability as an adult in criminal and civil contexts, to name a few examples.
I would concede that demarcating ages of maturity is a practical mode of ordering our society, in that procedures for assessing many individuals’ eligibility for public benefits and penalties is expedited by only requiring a brief determination of age, rather than an intricate weighing of the various maturity indicators that Abella J. mandates in s. 25(8) inquiries. However, and despite the specific age chosen in most legal contexts being reasonably related to legislative goals underpinning them, many of these distinctions still seem artificial.
To illustrate my point by way of a personal anecdote, as I was graduating high school in spring of 2004, I distinctly remember chatting with my former Civics teacher about the various personalities running for public office in the imminent federal election. I had also bemoaned my legislated inability to vote for my preferred candidate because I had yet to reach the requisite age, as I believed myself (very immodestly!) to possess sufficient emotional intelligence, depth of experience, and social awareness to make an informed choice. At the same time, I could acknowledge the persuasive reasons informing the state’s age distinction – these legislative goals did reasonably accord with not allowing persons under 18 years to vote. Despite this, I still persisted (rather ambitiously) in writing a letter to my Member of Parliament requesting that some exception to the rule be made. Why not devise a statutory scheme enabling engaged youth to demonstrate their independent political consciousness, adjudicated individualistically by public officials, and thereby earn the right to vote alongside ostensibly more “mature” adults?
With the benefit of hindsight, I now appreciate that my proposal would be a difficult one to implement efficiently, though I do still sympathize with its objectives. Further, its central appeal for a subjective capacity determination is not unlike the Supreme Court’s holding in A.C. v. Manitoba, which does well to afford the courts greater discretion in assessing youths’ maturity. In my view, supplanting age distinctions with individualistic schemes in various legal fora is a most fair and socially responsive means of ordering affairs, if only our scant public resources permitted it.