Difficulty using Health Care Consent Act with children tested in recent case

A recent case highlights how the Health Care Consent Act, which calls for judges to take a child’s wishes into account when it comes to consenting to treatment, is not the ultimate consideration in family law cases where the court is considering reunification therapy in child alienation cases.

In A.M. v. C.H., which dealt with a 14-year-old child who had been estranged from his father by his mother, the Ontario Court of Appeal ruled that overlaid on the HCCA is the Divorce Act and the Children’s Law Reform Act in Ontario, “which say the best interest of the child are the ultimate test for the court,” says Laurie Pawlitza, a partner in the family law group at Torkin Manes LLP.

“In particular, it’s spelled out in the Children’s Law Reform Act that, while a court is required to consider when determining best interest the views and preferences of the child, the court still has the overriding jurisdiction under the family law legislation to make determination as to best interest. Basically, they said the best interest test gives the court the jurisdiction to make a decision even though it’s possible the HCCA would mean you need the kid’s consent.”

The HCCA says that if a health-care practitioner named in the schedule of the regulated professions proposes a treatment for a person, that health-care practitioner can’t administer it unless that person has capacity and has given consent. The act overlaps into family law when it comes to what practitioners call reunification strategies in parent/child contact problem cases. This is when one parent has alienated the child against the other parent, so that the child does not want to see or be with that parent. Family law lawyers call it a thorny, challenging and complex area to deal with in their practice.

One of the trickier aspects of the act when it comes to its application in cases looking at reunification strategies is that there’s no age requirement above which the health-care practitioner must get consent — it’s a flexible standard.

“It’s a question of whether or not someone can understand,” Pawlitza says. “It comes up in the custody/access realm often where there’s estrangement or alienation and a judge wants to order some sort of reconciliation or reunification therapy or even as part of swapping custody and dealing with the alienation and estrangement issues.”

The decision in A.M. goes through at some length what questions a court should ask when trying to assess the maturity of a child when considering their maturity and what principles the court should apply when looking at the best interest standard in considering an older child.

Pawlitza says children anywhere from 12 and up “have a lot to say, and what happens if the court chooses to ignore the child’s views and preferences?” It’s a common difficulty family lawyers face, and it’s often adolescents in the alienated or estranged circumstances.

Even if therapy is ultimately ordered, there are complicating factors. One example is the mental health professionals that assist family lawyers — if their college’s rule of conduct requires the participating parties in whatever it is they’re doing consent, where does that leave them? They have a court order to provide reintegration or reunification therapy, but not all of the parties consent. Those are tricky issues for people providing the service and for the lawyers, Pawlitza says.

There are also other areas where consent is specifically required — for example, in Ontario’s Child, Youth and Family Services Act, there are provisions where consent is specifically required in certain circumstances, and there are other areas where children are entitled to consent in other capacities that are not under the Divorce Act or the Children’s Law Reform Act, says Heather Hansen, a partner at Martha McCarthy & Co. LLP.

 “I’m not minimizing the seriousness and importance of consent, but it is tangled up in, what do we do about these children who are at really extreme risk?” she asks, pointing to research about the long-term consequences to children who are in these circumstances.

Hansen says there were two streams of case law prior to the appeal court decision that characterize the way previous lower courts had navigated the consent issue.

One stream of case law is characterized by judges who identify the work being done as not therapeutic in nature, and if it’s not therapeutic, it doesn’t require consent under the HCCA. The other stream identified the work as therapeutic and grappled with “all the things that flowed from that on the complex issue of consent, and that is where it can be argued the Court of Appeal resolved the issue with its ruling,” says Hansen.

“In a number of cases, the HCCA wasn’t even mentioned — judges have gone ahead and ordered reunification therapy, but at a certain point alienating or estranging parents, and their lawyers got wind of it and said you need the consent,” Pawlitza says, noting that she thinks the trial judges really didn’t know what to do. “They knew what they wanted to do — they wanted to order reunification or reconciliation therapy that includes a change of custody often in order for that to happen, but nobody had dealt with the HCCA. The Court of Appeal dealt with that squarely.”

While Pawlitza says the Court of Appeal decision made a lot of practical sense, distinguishing what the HCCA was meant to do and how it applies specifically in family law, Hansen says the issue is going to continue to crop up.

“Part of it is there’s an underdevelopment of the law on this complicated issue, but also when dealing with parent/child contact problems and the courts are tasked with the responsibility of creating interventions that are going to be effective, unfortunately, even in the best of circumstances, there are actually very few tools that judges have. It’s very challenging for judges to deal with these things and they are very fact based,” Hansen says.

A.M. was a very fact-specific case, and the Court of Appeal did allow fresh evidence that “revealed a very complex set of circumstances for this child,” she says.

“I’m not saying every case turns on its facts and that what the Court of Appeal said isn’t going to become part of the ongoing dialogue, but I don’t think the conversation is over on this issue,” says Hansen. “I think we’re going to continue to see judges trying to stretch to do what’s best for children, consistent with their mandate and the direction of the legislation, and deal with these challenging issues.”

Pawlitza says that, while the decision does clarify the court’s jurisdiction, things will still be determined on a case-by-case basis, and “the issue of a child’s maturity and whether it would be an appropriate order in the circumstances still is going to be argued. Those are things that are going to remain on every family lawyer’s plate.”

“We all tend to use reintegration therapy as a fallback when we’ve got a very difficult position — this is the relief we’re going to seek — but the Court of Appeal said something wise family lawyers should be passing on: The court cannot fix every problem,” Pawlitza adds.

The ruling states that “there are of course risks in making therapeutic orders. The child may refuse to comply. A health care practitioner may consider that the child is capable and that he or she cannot override the child’s refusal. The attempts at therapeutic intervention may fail.”

Pawlitza says this was a very thoughtful thing for the court to say, and “frankly, the best advice to a client.”

“This is a real, live family issue and the court, while it’s your only ability to try to fix the problem, it may not be a fixable problem — which is an awful thing for a parent who is on the receiving end of having a child who has been alienated by the other parent. It’s a very bitter pill to swallow.”

Pawlitza says it’s heartbreaking for family lawyers and judges, too, which “is why judges roll up their sleeves and make all sorts of orders for people to go to counselling or attend reunification therapy or switch custody. It’s a very blunt instrument for a difficult problem.”

Hansen agrees, adding that she hopes the complicated issue receives further appellate court attention to clarify things further.

“It’s hard to be critical of judges who, on very fact-specific cases, want to approach it and problem solve it and ‘roll up their sleeves,’ and it’s also hard to be critical of judges who are concerned and preoccupied with the issue of consent in the context of sometimes very invasive treatment,” she says. “I don’t know if full resolution of the issue is achievable given the moving parts. I don’t know if we’re ever going to get to a place where it’s fully resolved.”