Sentenza 23 giugno 1994

New Brunswick Court of Appeal. Sentenza 23 giugno 1994.

Region 2 Hospital Corp. c. Walker (Litigation Guardian of).

Il Medical Consent of Minors Act, S.N.B. 1976, prevede che, una volta accertata la capacità di intendere e di volere di un minore, questi possa disporre del diritto di rifiutare trattamenti sanitari anche nel caso in cui vi sia pericolo per la vita del minore.

W, A 15-year-old boy, was diagnosed as suffering from acute myeloid leukaemia, the treatment for which would likely require tre transfusion of blood products. W refused that treatment, objecting to it as a Jehovah’s Witness. Two doctors deposed that W was aware of his condition, its treatment and the very real possibility that his refusal to accept blood or blood products could be fatal to him. Both doctors felt that W was sufficiently mature to understand the consequences of his refusal to have transfusions and that the proposed treatment, which did not call for blood transfusions, was in W’s best interests. Upon his admission to hospital, W signed a patient’s release form in which he indicated his refusal to a transfusion. One week later, he signed another medical directive indicating that no transfusions should be administered to him even if necessary to preserve his life or health.

An application was brought by the hospital and W’s doctor, relying on ss. 3 and 4 of the New Brunswick Medical Consent of Minors Act (“Act”) and the patriae jurisdiction of the court, seeking an order that W be declared a mature minor, capable of giving his own consent as to whether any tranfusions of blood or blood products formed part of his medical treatment and dispensing with the consent of his parents. In the alternative, the applicants requested permission to not administer transfusions of blood or blood products unless they received W’s consent in which event they requested an order allowing them to administer blood or blood products notwithstanding the wishes of W’s parents. The application judge granted the Minister of Health “parental rights in regard to the proper medical treatment” for W for two months, to monitor the situation, but did not have the authority to order any doctor to administer blood transfusions. However, he stated that if, in the doctors’opinions, W was going to die or was likely to die unless he received transfusions, they must be given. W appealed.

W’s parents had consented to the hearing of the application and indicated that their interests did not diverge from those of W. At the time of the appeal, they indicated that they would respect W’s wishes, even if he changed his mind and decided to receive transfusions.

W, his parents, and the Minister of Health and Community Services argued that the order of the application judge should be vacated and that W should be declared a mature minor with capacity to withhold or give consent to any proposed treatment without his parents’consent. They argued further that the application had been unnecessary because the Act was conclusive in permitting W to make any decision about his treatment if two medical practitioners were of the opinion that he was a mature minor and that the proposed treatment was in his best interests and his continued health and well-being. The hospital and W’s doctor, while requesting the same order, argued that, while the application was made because of an abundance of caution and perhaps to avoid the necessity of a subsequent application to obtain parental consent, it was necessary to make the application for an order declaring W a mature minor.

(omissis)