The decision by child welfare authorities to let 10-year-old Makayla Sault discontinue chemotherapy, and instead use traditional medicine to treat her leukemia, is one that reveals the complexity of Canada's child welfare laws.
Andrew Koster, the executive director of the Brant Children's Aid society says the Sault case was an agonizing decision.
"We have to consider the whole child. There is a physical part, the emotional part and there is also the well being of that child." said Koster.
- 'Chemo is killing my body:' First Nations girl opts for traditional treatment
- Makayla Sault will not be apprehended by Children's Aid
- Visit CBC Aboriginal
"A child who is already already ill and has been looking to their family and community for support, for us, under extremely stressful conditions, to take that child away from that environment would have produced a lot more psychological and emotional stress on that child, which in many ways could have contributed to an even worse situation." Koster said.
In this case, there have been questions about whether Makayla received special treatment from the Children's Aid Society because she is First Nations.
He says that special consideration ensures the troubled history of First Nations' children in care is not repeated.
"We saw the wholesale apprehension of aboriginal children from their First Nation communities creating a tremendous diaspora of children throughout North America," Richard said. These children "essentially disappeared from their culture."
At the same time, he says that while there are benefits to having specific legislation to protect First Nation children in care, it's not a perfect system.
"Child welfare is fraught with hiccups and dealing with First Nations adds an extra level of complexity to it, so the more complex the more likelihood that mistakes may be made."
'I understand those who are saying ‘Well, in denying those medical services, are you compromising her life chances?' - Kenn Richard, Native Child and Family Services of Toronto
Richard says CAS is required to consider First Nations' culture and to involve a child's band in an investigation. In Makayla's case, her band council was extremely supportive of the family's decision to discontinue treatment.
Some community members organized a group called the "Makayla defense force" that was ready to protect her if authorities attempted to apprehend her.
"Imagine doing that to an 11-year-old child. It is a big stretch to see that as in any way a humane approach to resolving a difficult problem," Richard says. "By the same token, I understand those who are saying ‘Well, in denying those medical services, are you compromising her life chances?'
"And that’s a legitimate question."
No minimum age of consent in Ontario
However, some legal experts argue that Makayla's case should never have even been referred to the CAS in the first place because she's entitled to make her own decisions about her medical treatment.
"Even if we took the child into care and were going to, say, force the chemotherapy, it would still be administered by doctors and the doctors still have to abide by the Health Care Consent Act. So, the whole process would begin over again as to whether the child was able to [provide consent] or not." said Koster.
'I didn’t think it was a child in need of protection question, I thought it was a treatment decision and it should have started at the consent and capacity board.' - Mark Handelman, lawyer
In most provinces, there is no minimum age of consent for medical treatment for a person deemed capable.
In Ontario, disputes over medical decisions, including consent and mental health issues, are heard by an independent body called the Consent and Capacity Board.
Mark Handelman, a lawyer with a master's degree in bioethics, is an expert in consent and end-of-life law, and he says, "I didn’t think it was a child in need of protection question, I thought it was a treatment decision, and it should have started at the consent and capacity board."
Handelman says doctors are obliged to obtain informed consent to treatment regardless of the age of the patient.
"The definition of capacity to make your own treatment decision is fairly straightforward," he says, though it may be more difficult to apply with a child, "because sometimes you don't know how much understanding and appreciation is behind the answer."