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Editorials Ruling that let native parent pull child from chemo must be appealed

Protesters make their feelings known outside the Brantford, Ontario, courtroom where Justice Gethin Edward ruled that a native mother has the constitutional right to treat her daughter’s cancer with traditional medicine.

Glenn Lowson/The Globe and Mail

It will probably shock most scholars to learn that cold laser therapy and shots of wheatgrass juice were the cancer treatment of choice among the Iroquois healers of precontact North America.

Don't believe it? Well, that's the contention at the heart of the loopy Ontario Court decision last November that said Indian parents have the constitutional right to choose traditional aboriginal medicine for their children over its modern counterpart, even in a life-and-death situation.

So far, no one has stepped forward to appeal the decision, probably because of an oversensitivity to the native rights issues that the judge allowed to cloud what should been a simple decision to protect the life of a child.

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The precedent set by the ruling became all the more ominous this week when an Ontario Ojibwa girl with leukemia died after her parents ended her chemotherapy and started treating her with unspecified traditional medicines. Makayla Sault was 11.

In the ruling, Justice Gethin Edward concluded that the mother of an unnamed 11-year-old Haudenosaunee girl could stop the child's life-saving chemotherapy treatment for leukemia and pursue a cure through traditional medicine. (The two girls' sagas are startlingly similar and overlap in time.)

The judge was ruling on an application from the Hamilton hospital where the girl was being treated. The hospital wanted the court to force the local Children's Aid Society to return the girl for treatment. The Children's Aid Society had refused to do so, in large part because the Six Nations Band supported the mother's decision and was ready to oppose any attempt to return the child to hospital.

The judge agrees in his ruling that the child, known only as "J.J.," lacks the capacity to decide her own course of treatment. He also acknowledges that the child has a 90 to 95 per cent chance of being cured by chemotherapy, and that she will most likely die without it.

He even lays out clearly that Ontario's Child and Family Services Act defines a child in need of protection as one who "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... the treatment."

But then, just as he is seemingly headed toward a sensible and compassionate ruling in favour of requiring the Children's Aid Society to return J.J. to hospital and restart her chemo, Justice Edward veers into the issue of native rights. Suddenly, the requirements of the Child and Family Services Act are forgotten.

The judge goes to great lengths to justify the mother's decision to pursue a native cure for her child. He refers to a landmark Supreme Court decision that ruled that, if an aboriginal tradition is integral to a band's distinctive culture today, and its practice predates contact with European settlers, it qualifies as a native right.

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If this case were about an native adult consciously making his or her own medical choices, no one would have blinked.

But this was a decision about a child diagnosed with a fatal disease who, if treated with chemotherapy, had an extremely high chance living a long and healthy life. Without it she would die, based on all known medical outcomes. J.J. was in desperate need of society's protection from a parent, however well-meaning, who was clearly risking her life. And yet the judge chose not to act.

Not only does he not act, he fails to examine what the so-called "traditional medicines" were that J.J. would receive. He takes it on faith in his ruling that the mother will pursue the kinds of treatments that are integral to Haudenosaunee culture and tradition. He does not require her to provide any evidence that that is the case.

In fact, the mother didn't even appear before the judge, even though he ordered her to. Why? Because she was in Florida at the time with her daughter at a dubious, unlicensed "health institute" that claims it can cure cancer through vitamin IV drips, massage, cold laser therapy and the consumption of wheatgrass juice and puréed organic vegetables.

What does cold laser therapy have to do with "longhouse beliefs," as the judge calls them? And how can he conclude, as he does, that the decision to end chemotherapy was "steeped in a practice that has been rooted in their culture from its beginnings," when he has not spoken to the mother and has no idea what that "practice" is?

There is, in fact, concrete evidence that the treatment the mother sought in Florida is an outright contradiction of Haudenosaunee traditional medicine. J.J.'s mother paid a reported $18,000 for her daughter's treatment. But Haudenosaunee traditional medicine requires that healers "prohibit ourselves from selling our medicines or knowledge for commercial purposes or personal gain." This is taken from the Haudenosaunee Code of Behaviour for Traditional Medicine Healers, a document cited by the judge.

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We are pleased to report that J.J. is alive and well. The latest news is that her cancer is in remission. This is undoubtedly because of the chemo she received. Better yet, her mom has told reporters that she has not ruled out further chemotherapy.

If J.J. had been anything but a native child, the judge would not have ignored the requirements of the Ontario Child and Family Services Act out of a misguided deference to the parents' beliefs or cultural practices. There is no parental right to harm a child in this country, whether through direct abuse or by denying timely medical care.

Don't native children deserve the same protection? Or is it more important that their lives be forfeited in the name of native rights.

Anyone concerned about the welfare of children should be appalled by the decision. The Ontario government must launch an appeal as soon as possible.

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