Balancing the Rights of Children with Parents’ Religious Beliefs

VM v British Columbia (Director of Child, Family and Community Service) 2008 BCSC 449 (13 June 2008) The Supreme Court of British Columbia has held that the decisions of a Provincial Courtand a public official to authorise medically-necessary blood transfusions for four infants against the express wishes of their parents did not breach the parents’ rights under the Canadian Charter of Rights and Freedoms.

Facts

Premature sextuplets were born to parents who were members of the Jehovah’s Witness Church.  The infants were admitted to the Neonatal Intensive Care Unit where they received life support.  Two of the infants died within the first two weeks due to complications.  Despite attempts to minimise the need for blood transfusions given the parents’ beliefs, the medical team eventually deemed that blood transfusions were necessary.

The parents objected, at which point the Director of Child, Family and Community Service obtained orders in the Provincial Court authorising transfusions for two of the children pursuant to s 29 of the Child, Family and Community Service Act (RSBC) 1996.  The Director then apprehended the remaining two children and authorised transfusions for them in the absence of a court order, pursuant to s 30 of the CFCSA.  The children were given the transfusions.

The parents appealed the orders of the Provincial Courtand sought judicial review of the Director’s actions.  They argued that, in compelling their children’s transfusions, the Court and Director had violated their rights under ss 2(a) (freedom of conscience and religion) and 7 (right to life, liberty and security of the person) of the Canadian Charter.

Decision

Medical decisions and religious beliefs

Brenner CJ held that neither the parents’ rights under s 2(a) or s 7 had been breached by the court orders or the actions of the Director.  Drawing on previous authority that was directly concerned with the issue of freedom of religion and medical necessity, his Honour highlighted that the right to freedom of religion was not absolute and may need to be balanced against other fundamental rights.

In this case, ‘medical necessity’ and the children’s rights to life, liberty and security of the person outweighed the freedom of the parents to choose medical treatment for their children based on the tenets of their religion.  Importantly, Brenner CJ held that ‘medical necessity’ in such circumstances referred not only to treatment that would be essential for the preservation of life, but also treatment necessary to prevent serious or permanent injury.

Brenner CJ observed that previous authority suggested two potential analytical pathways for the Court to follow:

• that the actions in question did infringe the parents’ rights to freedom of religion, thus requiring the Court to consider whether such infringement was justified under s 1 of the Canadian Charter (which provides that rights may be subject to ‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’); or
• that such actions did not infringe the parents’ rights to freedom of religion in the first place, rendering the s 1 analysis unnecessary.

Without indicating a preference for either analysis, Brenner CJ decided that ‘there was no infringement of the parents’ 2(a) rights, or, if there was an infringement, it was saved by s 1.

Procedural Fairness

The parents also argued that the procedural rights guaranteed under s 7 (that they not be deprived of such right except in accordance with the principles of fundamental justice) were infringed by the ‘essentially’ ex parte nature of the hearings before theProvincial Court.  Brenner CJ held that, given that the legislation provided the Provincial Court with discretion to shorten the notice period or ‘dispense with the notice requirement entirely’, the Provincial Court did not offend principles of fundamental justice by proceeding with the hearings.  Brenner CJ noted, however, that it was still necessary to take all reasonable steps to ensure the process was just.

Relevance to the Victorian Charter

The law relating to children’s consent to medical procedures in Victoriais complex.  The Children’s Court has jurisdiction where a child is in need of protection; the Family Court has jurisdiction where a child’s well-being is at risk; and the Supreme Court of Victoria may authorise medical treatment in the child’s best interests in accordance with its parens patriae jurisdiction.  Although there have been various Australian cases where courts have ordered that children be given blood transfusions against the express wishes of their parents (and occasionally, against the express wishes of the children), none of those cases have been decided under a Charter of Rights.

The relevant substantive provisions in the Victorian Charter are ss 9 (right to life), 14 (freedom of religion), 21 (liberty and security of the person) and 7(2) (rights under the Victorian Charter are subject to laws justified to maintain a free and democratic society).   The presence of the various equivalent rights suggests that it is very likely that a Victorian court would reach similar conclusions to those reached in this case.  Moreover, the Victorian Charter goes a step further than the Canadian Charter by also providing that children have the right to be protected by the State (s 17).  If anything, this would only augment the State’s ability to intercede in favour of the interests of the child.

The findings on the procedural issues are less likely to be influential.  Unlike in s 7 of the Canadian Charter, the right to liberty and security of the person in s 21 of the Victorian Charter does not provide that a person can only be deprived of such right ‘in accordance with the principles of fundamental justice’.  Rather, a person may be deprived of such right on ‘grounds, and in accordance with procedures, established by law’.  This test is a lot more straightforward, and indicates that in cases where the law allows a court to hold an ‘essentially’ ex parte hearing, proceeding on this basis is unlikely to infringe a person’s s 21 rights.

The decision is available at http://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc449/2008bcsc449.pdf.

Kaitilin Lowdon and Chris Thomas, Human Rights Law Group, Mallesons Stephen Jaques