In a decision that could affect First Nations people across Canada, a judge in Ontario has ruled that a hospital cannot force a cancer-stricken 11-year-old girl to resume chemotherapy because the Constitution protects her mother's right to treat the child with traditional aboriginal medicine instead.
Applause broke out in a Brantford, Ont., courtroom filled mainly with supporters of the girl, known as J.J, and her mother, known as D.H., when Justice Gethin Edward concluded that the family's aboriginal rights trumped the hospital's attempts to compel child-welfare authorities to intervene and send J.J. back to the hospital for chemotherapy.
"This is not an 11th-hour epiphany employed to take her daughter out of the rigours of chemotherapy. Rather, it is a decision made by a mother, on behalf of a daughter she truly loves, steeped in a practice that has been rooted in their culture from its beginnings …" he said.
"It is this court's conclusion therefore, that D.H.'s decision to pursue traditional medicine for her daughter, J.J., is her aboriginal right. 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."
A woman who identified herself as J.J.'s aunt called the girl's mother from the courtroom. "It's dismissed," she said into the phone, sobbing. After handing off the phone to another woman, the aunt wiped her tears with a tissue, visibly shaking, said: "I'm speechless, that's all I can say."
The other woman continued to describe the scene to D.H. on the phone. "It feels like I've transcended something bigger than all of us," she said.
Peter Fitzgerald, the president of McMaster Children's Hospital in Hamilton, said there were no immediate plans to appeal the decision, but he did not rule that option out.
"We've made it very clear from the beginning that without conventional therapy there is no chance of survival," he said in an interview Friday. "We have been open to the combination of traditional therapy with conventional medical therapy. But we have no reason to believe that the patient will survive the disease without conventional therapy."
J.J.'s case began in August, when she was diagnosed with acute lymphoblastic leukemia, a cancer that arises in the bone marrow. Doctors at McMaster Children's Hospital told her mother that there was a better than 90 per cent chance of a cure if the girl was treated with chemotherapy.
At first, D.H. agreed to the treatment plan, but 10 days into a 32-day course of chemotherapy, she decided to halt her daughter's treatment. She later wrote in an open letter to a native newspaper that she did not want her daughter treated with "poison" and would take her to a holistic healing centre in Florida and pursue aboriginal healing instead.
At that point, doctors at McMaster Children's Hospital contacted Brant Family and Children's Services, the child-welfare agency that covers the nearby Six Nations of the Grand River Reserve, where J.J. lives. The hospital wanted BFCS to step in and force the child back into hospital, but the agency investigated J.J's family and concluded she was not a "child in need of protection."
That is when the case took its first novel turn. In past instances where a parent has refused life-saving treatment for a child – including cases where Jehovah's Witnesses have tried to prevent their children from receiving blood transfusions – child-welfare authorities have generally sided with the doctors and taken the parents to court to usurp their decision-making power.
In this case, when BCFS rebuffed the hospital's request, the Hamilton Health Sciences Corporation took the child-welfare authorities to court.
In his decision, Justice Edward, who grew up in Brantford and is a member of the Six Nations band, discussed whether J.J. would qualify as a child in need of protection under The Child and Family Services Act in Ontario. Both sides agreed that D.H. is a loving and supportive mother and that only one part of the act might apply, a section that says a child can be deemed in need of protection if "the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to the treatment."
Rather than dealing with that issue on its face, Justice Edward turned to an analysis of the aboriginal rights protected by Section 35 of the Constitution. To count as an aboriginal right, he said, a practice must be "integral" to First Nations identity and date back to the time before Europeans arrived in Canada.
He concluded that D.H.'s beliefs fit that bill, leading him to dismiss the hospital's application.
Outside the courtroom, the chiefs of the Six Nations of the Grand River and the Mississaugas of New Credit First Nation, a neighbouring band, declared the decision a victory for aboriginal rights.
"This is a precedent-setting decision … for our people across the country," said Ava Hill, chief of the Six Nations of the Grand River. "We were the first people here. We looked after ourselves. We had our traditional medicines. And we looked after your ancestors when they arrived here. What medicines do you think we used?"
Chief Hill said J.J. is in good health. She said she saw J.J. and her mother two weeks ago at a community event, where J.J. was outside playing.
Chief Bryan LaForme of the Mississaugas of the New Credit First Nation said a girl from his reserve with a similar story was also doing well. Makayla Sault, also 11, was diagnosed with the same type of cancer as J.J. last spring and also chose to forgo modern medicine for treatment at the Florida healing centre, a place called the Hippocrates Health Institute that advertises itself online as a centre for alternative – not aboriginal – medicine.
Doctors at McMaster Children's Hospital had also asked the BFCS to intervene in Makayla's case. When the agency refused, the hospital let the matter drop.
A letter apparently from Makayla's father was posted earlier this week to the Facebook page of a Christian music star asking people to pray for Makayla because she had been sent back to hospital, critically ill.
But Chief LaForme said it was an infection – not cancer – that landed Makayla in hospital.
"I visited the parents [Thursday.] The young lady is home," he said. "She has no cancer. She went for blood tests Wednesday. The doctors found she is free of cancer. She has an infection that is being treated at home and she is doing well."
It was not possible to independently verify that immediately. Dr. Fitzgerald, the hospital president, said he could not comment on either girl's condition, citing patient confidentiality.
"We remain hopeful. There is still a child out there who has an opportunity to live a long and healthy life," he said. "I would just hope that the family comes to that realization and seeks conventional therapy."