Aboriginal people in Canada have a deep history of traditional medicine and these values sometimes clash with practices of modern medicine.
This raises a sensitive legal question: when life hangs in the balance, can aboriginals choose their traditional medicine, even if it conflicts with established medical treatments?
Generally, Canadians have the right to refuse any medical treatment if they so choose, but the issue has at times become more complicated when questions of patient capacity and substitute decision-makers enter the picture.
A substitute decision-maker (SDM) is someone who is authorized to represent a patient who cannot make healthcare decisions for themselves. The patient themselves may appoint the SDM in advance — in a living will or similar directive — or they may be chosen according to that jurisdiction’s laws.
An incapable patient is someone who is unable to understand information relevant to their treatment. An incapable person could be unconscious, mentally handicapped, or perhaps too young to make informed decisions.
Generally speaking, an SDM makes their decisions according to
- Instructions given from the patient when they were still capable or;
- What is in the patient’s best interests.
“Best interests” is a broad term, but encompasses concerns like:
- The patient’s known beliefs and values;
- Whether the proposed care is likely to improve their health;
- Whether the benefit of the proposed care outweighs the potential harm;
- Whether a less invasive or restrictive method of care would be better for the patient.
The SDM doesn’t necessarily have the final word though. If a healthcare professional feels that the SDM isn’t acting in the patient’s best interests, they can dispute the SDM’s choices.
This conflict came to a head in a 2014 Ontario case, Hamilton Health Sciences Corp. v. D.H. A Mohawk mother acting as the SDM for her 11-year-old daughter, refused chemotherapy for the girl’s leukemia and opted instead for traditional aboriginal medicine.
Doctors argued that the mother was not acting in the girl’s best interests since chemotherapy is found to be highly effective against this type of cancer — patients had a 90 to 95 per cent survival rate — whereas they knew of no cases where a child survived without it.
Canada’s Constitution Act, however, contains one simple and powerful sentence that trumped all else: Section 35 of the Act says: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
An “aboriginal right” a legal concept on its own, but a past Supreme Court of Canada case, R. v. Van Der Peet, defined it in a fairly simple way: it’s something that is part of their distinctive culture that was practiced before Europeans arrived in North America. And traditional medicine fits the bill.
The Constitution Act, s. 35:
Hamilton Health Sciences Corp. v. D.H.