Health

The Child’s Right to Health

The right of the child to health [Article 24] must be interpreted broadly, paying attention to all factors that may affect the realization of this right. . . as human rights are interdependent, the enjoyment of the right of the child to health both affects and is affected by the enjoyment of other rights. 

The Convention on the Rights of the Child (CRC)  Article 24 supports the right of every child to enjoy the highest attainable standard of health. This right is interpreted broadly recognizing all factors, and other rights that may affect its realization such as the right to live free from all forms of violence in CRC Article 19. States Parties are encouraged to ensure access to quality health care across the child’s lifespan including preventative care, and guidance for parents. Steps must also be taken to abolish traditional practices prejudicial to a child’s health. Several CRC General Comments address child health including GC No. 4 that elaborates on adolescent health and development.

The child’s right to participate in medical treatment decisions in Canada is recognized in law but varies across jurisdictions. Provincial/territorial laws address a child’s consent to medical treatment such as the British Columbia Infants’ Act and Ontario Health Care Consent Act. The Supreme Court of Canada has also indicated that the best interests of the child standard must be applied in a way that takes into increasingly serious account the young person’s views in accordance with his or her maturity in treatment decisions (A. C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181). In addition, provincial privacy laws address the child’s health care information and data management.

CRC Article 6:

1. States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.

CRC Article 24:

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

(a) To diminish infant and child mortality;

(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;

(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;

(d) To ensure appropriate pre-natal and post-natal health care for mothers;

(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;

(f) To develop preventive health care, guidance for parents and family planning education and services.

3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.

International Law

Interpretive Sources

Canadian Law

Federal Law

Provincial/Territorial Legislation

Many provincial/territorial laws address a child’s consent to medical treatment such as the British Columbia Infants’ Act and Ontario Health Care Consent Act, while provincial privacy laws address the child’s health care information and data management. See the Child Health Appendix for more information about laws in the province/territories.

Case Law

A. C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181 – Can a 15 year suffering from gastrointestinal bleeding caused by Crohn’s disease refuse a blood transfusion as a Jehovah’s Witness? Section 25(8) of the Manitoba Child and Family Services Act enabled the Court to authorize treatment that it considered to be in the child’s best interests and s. 25(9) presumed that the best interests of a child 16 or over was most effectively promoted by allowing the child’s views to be determinative, unless it could be shown that the child did not understand the decision or appreciate its consequences. Sections 2(a), 7, and s. 15(1) of the Charter were raised. The Court concluded the legislation led to, “an interpretive approach to ‘best interests’ that is consistent with international standards, including the CRC (with specific reference to Articles 3, 5, 12 and 14), developments in the common law, and the reality of childhood and child protection” (paras 80 and 93). The legislative provisions were constitutional and while the evolving and contextual nature of maturity makes it difficult to define, “the right of mature adolescents not to be unfairly deprived of their medical decision-making autonomy means the assessment must be undertaken with respect and rigour” (para 96). The Court offered several questions, not as a formula, but as examples to assist in assessing the extent to which a child’s wishes reflect true, stable and independent choices.

Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78 – Does the government’s failure to fund applied behavioral therapy for infants with autism violate their equality rights under the Charter? The trial judge and BC Court of Appeal both found the province violated the children’s equality rights, but the Supreme Court of Canada disagreed holding that there was no violation because the province was only required under the applicable legislation to fund core services provided by medical practitioners and this did not include the services in issue. The Court referenced the importance of looking at equality issues substantively and contextually in its reasons but it did not draw on the CRC to assist. Its equality analysis hinged on whether the service was a benefit provided by law, and whether an appropriate comparator group received unequal treatment to their benefit.

It is noteworthy that a similar argument raised more recently by Canada that Aboriginal children on reserve should not be compared to children living off reserve was rejected by the Canadian Human Rights Tribunal with respect to a First Nations Child Welfare Complaint (Docket: T1340/7708).

B. (R.) v. Children's Aid Society of Metropolitan Toronto [1995] 1 SCR 315 – Can Jehovah Witness parents refuse a blood transfusion for their infant daughter on religious grounds? The Court concluded that a parent's freedom of religion, as guaranteed under s. 2(a ) of the Charter, is necessarily limited by s. 1 such that it does not include the right to impose religious practices on a child that threaten his or her safety, health, or life. The child in the case was too young to have accepted her parents' faith. Therefore, the parents' refusal to allow her to receive a blood transfusion encroached upon her freedom of conscience. In principle, the freedom of religion possessed by one person, including a parent, does not encompass the activities of one person that categorically negate the freedom of conscience of another, including when that other person is their child.

Canada v. Canadian Doctors for Refugee Care et al 2014 FC 651 (appeal filed and subsequently withdrawn) - Can the government cut health insurance provided to refugee claimants under the Interim Federal Health Program (IFHP)? The Applicants sought a judicial review of the decision. The Court found that the cuts resulted in a breach of two Charter provisions: s. 12, and s. 15 and considered Canada’s obligations under the CRC in arriving at its decision and, in particular, Articles 2 (non-discrimination), 3 (best interests as a primary consideration) and 6 (life, survival and development), as well as General Comment 14 (best interests as a primary consideration). The treatment of refugee children as a result of the cuts did not conform to these standards. In September of 2014, Canada appealed but following the 2015 federal election the appeal was withdrawn.

Inquest Touching the Death of Ashley Smith, Jury Verdict and Recommendations, Office of the Chief Coroner, Ontario: December 2013 - This was a medico-legal inquiry into the cause of death of nineteen year old Ashley Smith in Federal Corrections custody in 2007 which found that Smith’s death was a homicide. It was the first time a homicide verdict had been rendered in relation to a prisoner in Canadian Corrections custody where the perpetrator of the homicide was not another inmate. She was first placed at 14 years of age in custody in a youth facility for one month for throwing crab apples at a postal worker. Once in custody Smith incurred hundreds of disciplinary infractions and scores of additional criminal charges in relation to her behaviour and was ultimately held in custody for over four years, almost entirely in isolation, and transferred into adult custody, where she died in 2007. Smith took her own life by a ligature while guards looked on for approximately 45 minutes before intervening. In custody, Smith was confined and contained. Her formal grievances were ignored and her rights were routinely violated. She was transferred to adult facilities after turning 18, then transferred 17 times between 8 different facilities. The verdict condemns the failures of Canada’s justice and correctional systems to ensure appropriate care, treatment, support, and protections for the rights of adolescent inmates and provides a set of recommendations to address systemic issues in the Canadian Correctional System where youths who are inmates are not receiving adequate support/treatment for basic humane treatment.

Hamilton Health Sciences Corp. v. D.H., 2014 ONCJ 603 (CanLII) – Can a hospital require an 11 year old Aboriginal girl to continue chemotherapy treatment for leukemia rather than pursue traditional medicine? The child’s parents, of First Nations heritage, opted not to continue with chemotherapy and instead to pursue alternative treatment in Florida which was consistent with Aboriginal practices. The Ontario Court ruled the hospital could not force the girl to resume chemotherapy because the Constitution protects her mother’s right to treat the child using traditional Aboriginal medicine. An initial decision from the Court in 2014 reflected that the traditional medicine was an integral part of their Six Nation's culture and that the decision to pursue Aboriginal medicine for the girl was her mother's constitutionally protected right under s. 35 of the Charter. While this traditional avenue was pursued for several months leading to the leukemia going into remission, when it reappeared the girl’s mother decided to use both traditional and Western medicine to help her daughter. In 2015 Justice Edward revisited his decision and clarified that while Aboriginal people’s s.35 rights must be acknowledged and respected with respect to any issue involving the health of a child, the best interests are always paramount and in this case enabling the child to pursue both traditional and western medicine recognized this.

Inglis v. British Columbia (Minister of Public Safety) 2013 BCSC 2309 – Could the “Mother Baby Program” at Allouette Correctional Center for Women be cut? The program had been a positive success and the decision to end it did not consider the effect on the women and their babies, namely the best interests of the child. The decision reflected the mothers’ right to remain with their newborn babies and the decision to end the program was deemed a violation of the plaintiffs’ s. 7 right to security of the person, and their s. 15 right to equality of the members of the affected groups; namely provincially incarcerated mothers who wished to have their baby remain with them while they serve their sentence and the babies of those mothers.

Special Considerations

  • Consent and Capacity – A child’s right to participate in health care decision-making may include consent to medical treatment but the rules are variable across jurisdictions
  • Indigenous children have constitutionally protected Aboriginal and Treaty rights, as well as cultural rights under the CRC, that may impact their medical treatment decisions (Hamilton Health Sciences Corp. v. D.H., 2014 ONCJ 603 (CanLII))

Practice Essentials

  • If you are corporate counsel for hospitals:
    • recommend that policies and protocols are in place to ensure that children are involved in health care decision-making at developmentally appropriate levels and in accordance with the applicable law
    • ensure policies and protocols are in place so medical professionals understand that the best interests of the child should be the primary consideration in all health care decision-making about the child
  • Ensure children are informed about their health care rights and if they are capable of expressing their views that they have an opportunity to have input into the decisions made about them
  • Ensure the child’s privacy is respected and guarded carefully

Resources

Medical Resources