Aboriginal Cultural Rights versus a Child’s Life: A Canadian Case
Over the last few months an interesting legal case has been going on in Brantford, Ontario, a small city near where I live. The judge’s ruling is likely to generate much commentary and lots of legal articles.
|Makayla Sault (on the right), picture taken froom facebook|
By court order, the second girl, from Six Nations, has not been identified, although she is referred to as J.J. With J.J.’s agreement, her mother withdrew her from chemotherapy at the McMaster Children’s Hospital and took her to an organization called the Hippocrates Health Institute in Florida for “alternative” medical treatment that she believed was compatible with indigenous Six Nations traditional medicine; the Florida treatment consisted of nutrition and naturopathic therapy.
The individual in charge of the Florida centre is not a physician: the Institute is licensed by the state of Florida only to provide massage therapy, while its director is licensed to provide nutritional counselling. However, the director has been at Six Nations Reserve to advocate his form of treatment, although I’m not sure from the reports I read when this happened. Presumably treatment at the Hippocrates Institute is not free. This is the same centre Makayla’s parents took her to. At first, after she went there, she felt much better, but on November 14, 2014 it was reported that she was now very ill and her father was asking the world for prayers.
Neither the hospital nor Brant Family and Children’s Services (BFCS), the agency responsible for children’s welfare at the two reserves, took any action to prevent Makayla’s removal from chemotherapy. But in the second case, when the BFCS refused to act, the hospital went to court, asking a judge to order the BFCS to seize J.J. and force treatment upon her. This is a common type of action, for example when a Jehovah’s Witness child is deemed by doctors to need a blood transfusion and the parents refuse (Jehovah’s Witnesses are a religious group that do not believe in blood transfusions).
On November 14, 2014, the judge rendered his decision. He ruled that Aboriginal people’s constitutional rights overrode the hospital’s right to demand co-operation from the BFCS to force the child to undergo treatment. On October 16 the judge was quoted as saying “Maybe First Nations culture doesn’t require every child to be treated with chemotherapy and to survive for that culture to have value.” (Tom Blackwell, Financial Post, “Judge says forcing aboriginal girl to stay in chemo is to ‘impose our world view on First Nation culture’”, October 16, 2014). The judge also said that the aboriginal right to practice traditional medicine could not be “qualified as a right only if it is proven to work by employing a Western medical paradigm.” (Kelly Grant, “Ontario court judge rules hospital can’t force chemo on native girl,” The Globe and Mail, Nov. 15, 2014, p. A20).
I am not a lawyer or a legal scholar, so I don’t know the details of Aboriginal rights. Canada’s 1982 Charter of Rights and Freedoms does say in Article 25. “The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada.” Apparently the judge interpreted this to mean that Aboriginal people have the right to choose what medicines they wish to use, even if the best advice from what he called “Western” medicine suggests they won’t work.
The doctors at the McMaster children’s hospital said that with chemotherapy, the two girls have an 80-95 per cent chance of survival. They also said that there are no known cases of children surviving this type of cancer without chemotherapy.
I am a mother too, and I can imagine how terrible it must be for the mothers of these girl
s to watch them endure the pain of chemotherapy. If my son had contracted cancer at age 11 and required two years of chemotherapy, I might also have wanted to look for alternative treatments. In J.J.’s case, the mother’s claim is that the alternative therapy she has chosen in Florida is compatible with Aboriginal medicine. The judge seems to have decided that whether it is truly aboriginal, in the sense of having been a traditional medicine within that culture, is irrelevant. Whatever an Aboriginal person declares is traditional medicine is so, even if it is a treatment offered by presumably non-aboriginal people in Florida.
|the McMaster Children’s hospital|
In other contexts, I think very few human rights activists would accept that a child’s life could be sacrificed for cultural reasons. Children, like all human beings, have a right to life. Perhaps we could prevaricate and say that not giving a child medical treatment that she says she doesn’t want is an act of omission, not comparable to denying her treatment she does want. But I do not think an 11-year-old is capable of independent judgment or understanding of the consequences of withdrawing the treatment.
I also have some questions about all this. First, why the judge did call recognized international medical practice “Western?” Does he have evidence that people living in, or from, places such as China, India or Africa successfully undergo treatments other than chemotherapy when they contract cancer? I thought scientific medicine was international.
Another question is about the laws that govern people who purport to practice medicine without a license. I have a hard time understanding how an individual from Florida who is licensed only as a nutrition counselor can be permitted into Canada to give talks in which he claims to know ways to cure cancer other than chemotherapy.
The mother of the second girl was quoted as saying “I will not have my daughter treated with poison…She has to become a healthy mother and grandmother.” (Connie Walter, CBC News, October 1, 2014. “First Nations girl’s family rejects chemo, hospital goes to court to force treatment”). The poison she was referring to was chemotherapy, which is designed to kill cancerous cells so that healthy cells can grow. I hope the mother’s ambitions are realized and that J.J. has a long and healthy life, but I fear that by rejecting “Western” medicine the mother and her daughter have made a fatal choice.