First Nations chemo case ruling amended to include child's well-being
'Clarification' supported by all sides, including family and hospital
The clarification of a controversial court ruling that allowed the mother of an 11-year-old First Nations girl to pull her out of chemotherapy says the best interests of the child are "paramount," but traditional medicine must be respected.
It is a "significant qualification" of Ontario court Judge Gethin Edward's November 2014 ruling, according to one legal expert, which means the child's well-being has to be balanced against rights to traditional medicine.
This is a significant qualification of the prior decision.— Nick Bala, Queen's University law professor
Nick Bala, a law professor at Queen's University, says the clarification "walks back" the original ruling that put First Nations constitutional rights as the major factor to be considered in the care of the child.
The clarification, read in a Brantford, Ont. court Friday afternoon, comes with news the child restarted chemotherapy in March when the cancer returned after a period of remission.
The joint submission from the auditor general of Ontario, as well as counsel for the Six Nations, the child's family and McMaster Children's Hospital, was celebrated as a collaborative conversation rather than a confrontation among the parties involved.
At the end of the court proceedings, Edward stepped down from the bench to shake the hands of the parties involved, including the family and the girl, who can only be identified as J.J.
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The controversial case began last September when J.J.'s mother pulled her daughter out of chemotherapy, taking her to the Hippocrates Health Institute in Florida.
Child's interests 'paramount'
Up to that point, McMaster Children's Hospital had been treating her in conjunction with the family's use of traditional medicine. At the time, the mother told CBC News she believed chemotherapy was "poison."
The hospital tried to get J.J. declared as a child in need of protection after Brant Family and Child Services made it clear they would not step in.
Last year, the court ruled in favour of allowing the Six Nations mother, dismissing the hospital's case, and said in its decision it was her constitutional right to pursue indigenous medicine.
"It is this court's conclusion therefore, that [the mother's] decision to pursue traditional medicine for her daughter J.J. is her aboriginal right," reads the original ruling from November. "Further, such a right cannot be qualified as a right only if it is proven to work by employing the Western medical paradigm. To do so would be to leave open the opportunity to perpetually erode aboriginal rights."
Friday's addition adds in the child's best interests, saying they are "paramount."
Bala called it a "significant clarification" that recognized the earlier decision had not referred to the child's rights as being paramount.
He said this decision makes it more of a balancing act between the child's best interests and aboriginal rights, and that courts "very rarely" clarify decisions.
"The aboriginal rights are one factor to be considered, but not the only factor," Bala said. "This is a significant qualification of the prior decision."
Paul Williams, the lawyer for the First Nations family, said the clarification prevented the previous ruling from being interpreted as an "absolute" that only aboriginal rights would be considered.
"The right to use traditional medicine is part of the child's best interests. That was clarified, it wasn't changed," Williams said. "I think it was a fear of absolutism. I think it was clear that nothing was absolute."
As for the Hippocrates Health Institute, the Florida health spa that provided therapy to J.J. as well as leukemia patient Makayla Sault, who died in January, Williams said J.J. is no longer being treated there.
"There's no contact," Williams said.