10/16/2014 14:31 EDT | Updated 12/16/2014 05:59 EST

First Nation family's refusal of chemo a precedent-setting case, expert says

The final submissions in a precedent-setting case over treatment for a young First Nations girl with leukemia will be heard today in Brantford, Ont.

McMaster Children’s Hospital is asking Judge Gethin Edward to force the Children’s Aid Society to intervene after the girl left chemotherapy treatment at McMaster to pursue traditional indigenous medicine.

The girl, whose identity is protected by a publication ban, was diagnosed with acute lymphoblastic leukemia in August. After 11 days of treatment, her mother told the doctors they would be leaving the hospital for a holistic health centre in Florida. The family spent three weeks at the Hippocrates Health Institute, a facility they say is in line with their traditional treatments.

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In an interview with CBC News, the mother said, “This was not a frivolous decision I made. Before I took her off chemo, I made sure that I had a comprehensive health-care plan that I was very confident that was going to achieve ridding cancer of her body before I left the hospital. This is not something I think may work, this is something I know will work.”

Case will set precedent, legal expert says

Nicholas Bala, a professor in family law at Queen’s University, said that regardless of the judge’s decision, this case will be precedent setting.

“It`s going to set a precedent on the rights of parents and also on the question of which piece of legislation governs, the Child and Family Services Act or legislation governing the health Capacity and Consent Board.”  

In Ontario, disputes over medical decisions, including consent and mental health issues, are heard by an independent body called the Consent and Capacity Board.

Bala said the case is more complex because it involves a First Nations family, but the decision will apply to other children as well.

“Some of these issues will apply to other contexts, for example, Jehovah`s Witness children and others. We've had quite a few cases in Canada where parents and doctors have disagreed about treatment of children in a range of situations.

“The unfortunate history is when doctors have predicted death, it turns out that they're often correct, and that is probably going to influence how the courts view this as well.”

2nd time Children's Aid has not intervened

In the case that is in court now, doctors at McMaster called the Brant Children’s Aid Society to investigate when the family chose to leave treatment.

When Children's Aid decided not to intervene, McMaster took the unusual step of taking the matter to court.

It was the second time in four months that the Brant Children's Aid Society made the decision not to intervene when a First Nations child left chemotherapy to pursue alternative treatment.

In May, 11-year-old MakaylaSault made national headlines when she wrote a letter outlining why she was leaving chemotherapy treatment at McMaster.

In other cases where children refuse life-saving treatment, Children's Aid has often intervened to force them back into care.

In the Sault case, after Children's Aid closed its investigation, the family travelled to the Hippocrates Healing Institute in Florida.

McMaster doctors testified that Sault has suffered a relapse, but in a video posted on Facebook, Makayla says she is “alive and well and healed.”

Decision expected soon

The judge in the latest case has been hearing testimony from McMaster doctors, indigenous medicine experts, and Children’s Aid workers since last month.

McMaster doctors have testified that the girl had a 90 to 95 per cent chance of survival if she continued with chemotherapy, but would surely die without it.

"Obviously our main concern is with the well-being of this child.… This child has a life-threatening illness [and] without standard treatment will not survive, so our sole focus is trying to bring this child into treatment so we have an opportunity to provide her with a long, healthy life." said Dr. Peter Fitzgerald, president of McMaster Children's Hospital.

The Children's Aid Society has argued that this case is only a child protection issue. Its lawyer, Mark Handleman, made the case that under Ontario’s Health Care Consent Act, the child’s capacity to choose her own treatment needs to be determined.

The mother of the girl has not appeared at the court proceedings and says she does not recognize the Canadian judicial system.

“The Haudenosaunee people which I’m a member of, we have our sovereignty still intact and we are governed by the great law … that predates Canada.”

Another court date is scheduled in Brantford for next week.