In a case that is pitting modern medicine against traditional native healing, an Ontario hospital is taking child welfare authorities to court for refusing to intervene in the case of a cancer-stricken Six Nations girl who doctors say will die if she does not resume chemotherapy.
The 11-year-old girl was diagnosed in August with acute lymphoblastic leukemia, a bone-marrow cancer that, in this child's case, has a 90- to 95-per-cent likelihood of being cured, according to oncologists at McMaster Children's Hospital in Hamilton, where the girl was being treated.
But halfway through her first 32-day course of chemotherapy, her mother halted the treatment and vowed to pursue holistic healing that respects the family's ancestral practices at a private facility in Florida.
"I will not have my daughter treated with poison," the mother later wrote in a statement published on the website of the native newspaper Two Row Times.
What makes this case unusual is what happened next: The child's doctors pleaded with Brant Family and Children's Services (BFCS) to step in, but the agency declined, prompting the hospital to make the rare legal move of hauling child welfare authorities into a courthouse in Brantford, the Southwestern Ontario city of 94,000 that borders the Six Nations reserve.
In most instances where doctors disagree with parents' decisions regarding the health of their children, it is the child welfare authorities who go to court asking to usurp the parents' authority, legal experts say.
"I haven't really seen this before," said Ubaka Ogbogu, a professor in the Health Law Institute at the University of Alberta. "What makes this unique is that we now have a secondary issue, which has become a primary issue, which is the question of who has the authority to pursue the best interest [of the child?]"
The Brantford court case, which began last month and resumes Wednesday, is also unfolding against the backdrop of this country's troubled relationship with native children, one that is especially strained because of the residential school experience.
But Peter Fitzgerald, the president of McMaster Children's Hospital, said the hospital's overriding concern is saving the life of the 11-year-old girl, whose identity is protected by a court order.
"We're concerned with cultural context for all our patients. We work really hard to work through issues with families," he said. "At the end of the day, why should this child die?"
One of the complicating factors is that the child is not currently in hospital. She and her mother and sister are reportedly at the Hippocrates Health Institute, a private holistic centre in West Palm Beach, Fla.
Assuming the family returns to the reserve as planned, doctors would still need to find a legal way to force her back to the hospital for chemotherapy. Dr. Fitzgerald said the hospital only wants the BFCS to help make that happen, not to formally remove the child from the custody of a family that all sides agree is loving and supportive.
But Mark Handelman, the lawyer for the BFCS in this case, said that is not practical. "The simple fact is, it's going to be an apprehension, taking a child away from her family," he said.
Mr. Handelman summed up the testimony of Andrew Koster, the executive director of BFCS, this way: "You want us to go on to the reserve and rip a very sick child out of the hands of a loving, caring family, and we need to consider the ramifications of that."
This case marks the second time this year that the BCFS has rebuffed a request from McMaster Children's Hospital to intervene with a young First Nations cancer patient. The hospital asked for the agency's help after Makayla Sault, also 11 and afflicted with acute lymphoblastic leukemia, quit her chemotherapy with the support of her family and band, the Mississaugas of New Credit First Nation, and decided to try aboriginal healing instead.
The BFCS investigated Makayla's case and determined she was not in need of protection. The hospital let the matter drop.
Dr. Fitzgerald would not say why the hospital took a different approach this time, citing patient confidentiality.
The CBC reported last week that an oncologist testifying at the current case said Makayla had relapsed – although the doctor did not mention Makayla by name – something that Chief Bryan LaForme of the New Credit First Nation said Tuesday was not true.
Next door at Six Nations, Chief Ava Hill said her band will continue to support the 11-year-old's right to pursue traditional healing, including launching an appeal if the court decides in favour of the hospital.
"We're going to support any of our community members in a decision to look after their own kids …," she said. "We feel we have the right to use our own medicines."