Doctors from McMaster Children’s Hospital in Hamilton have gone to court to have an aboriginal child removed from her family so she can resume chemotherapy treatment.

Judge Gethin Edward, who is presiding over the court proceedings that began Monday in nearby Brantford, Ont., has imposed a publication ban on anything that would identify the girl or family involved in the case. The proceedings are set to resume Thursday.

McMaster wants a Hamilton-region children’s aid society to take control of the child patient, who was being treated for cancer before her family removed her to be treated with traditional medicine.

Stacey Marjerrison, the patient’s main doctor and part of the McMaster team that launched the legal case, told court on Monday the girl has between an 80 and 85 per cent chance of survival on chemotherapy. Without it, the cancer could kill her.

Marjerrison said there is a degree of urgency in getting the child back into treatment soon, as the cancer can become more difficult to treat over time.

Lawyer Mark Handelman, representing the children's aid society, said removing the child from her family, however, would be "draconian."

"I’m not challenging your motives, but I’m questioning the process," Handelman told Marjerrison.

Throughout his questioning, Handelman pointed out McMaster’s problem stems from failing to properly figure out if the girl could make her own medical decisions.

Handelman, a lawyer who specializes in medical bioethics, asked Marjerrison why the case had not been referred to the Consent and Capacity Board — an independent body created by the provincial government under the Health Care Consent Act.

Marjerrison said the hospital’s treatment team and legal counsel decided going to court was the best route due to the urgency of the case.

There is no minimum age of consent in Ontario for medical treatment. Informed consent is based on the patient’s capacity to understand what’s involved in their treatment.

Handelman repeatedly asked Marjerrison why she allowed the patient’s parents to make all of the medical decisions in the case, thus rendering the child an "assenter" to care rather than a "consenter" who could make her own choices.

Marjerrison described a quiet child, who would say she understood what was going on but almost never ask questions about treatment, deferring all hard choices to her parents.

Handelman asked twice during the testimony if Marjerrison was interpreting the patient’s silence as lack of capacity, something the doctor denied.

Doctor didn't want to be 'cruel'

Marjerrison did say, however, that she told the patient’s parents more than she told the child sometimes because she didn’t want to be “cruel."

Judge Edward briefly stopped Handelman’s questioning to remind the lawyer that he "won’t lose sight" of the fact that the child had just been diagnosed with cancer and was trying to digest that news.

Handelman, in turn, asked the judge not to forget that the patient was in the hospital for a number of weeks and there were "ongoing opportunities" to test her capacity.

Marjerrison said she had good dealings with the patient and her family before the girl was removed from the hospital.

The family was not in court Monday.

The hearings are set to continue Thursday and Friday, with lawyers in the case planning to call several witnesses.