Makayla Sault's case raises questions about child welfare law

Ontario's Children's Aid Society has decided to let ten-year-old Makayla Sault stop chemotherapy, and instead use traditional medicine to treat her leukemia-- a decision that reveals the complexity of child welfare.

This has been a tumultuous year for Makayla Sault. The ten year old from the New Credit First Nation, north of Toronto, was diagnosed with leukemia in January. She underwent intensive chemotherapy, and her cancer went into remission. But the treatment was agonizing.

I know that what I have can kill me, but I don't want to die in a hospital on chemo weak and sick...I wish that doctors would listen to me, because I live in this body and they don't.Makayla Sault

Makayla didn't believe she could continue with the chemo. Her parents said doctors at McMaster Children's Hospital warned them she might die without further treatments, but they wanted to abide by Makayla's wishes.

In April, Makayla left the hospital and her family turned to traditional medicine. McMaster referred the case to the Children's Aid Society. It ruled Makayla would not have to endure chemo if she didn't want to. Andrew Koster is the Executive Director of the Brant Children's Aid Society. He says the decision to close Makayla's case was agonizing.

We have to consider the whole child. There is a physical part, there's the emotional part, and there is also the well being of that child.Andrew Koster

There have been questions about whether Makayla received special treatment from the Children's Aid Society because she's from a First Nation.

Kenn Richard, the Executive Director of Native Child and Family Services of Toronto, says the CAS is legally required to consider a child's background. And in fact, there is a section of the Family Services that specifically pertains to First Nations children.

But Mr. Richard agrees this particular case is complex.

The answers to many of these tough questions don't reside in reading a piece of legislation, they reside in reflection on the ethical considerations at play.Kenn Richard

Some legal experts argue that Makayla's case should never have even been referred to the Children's Aid Society because she's entitled to make her own decisions about her medical treatment.

If we have any situation where there has been no finding that the child is unable to make that consent, then it defers back to the fact that the child's wishes have to be taken into consideration.Andrew Koster, Executive Director of the Brant Children's Aid Society

In most provinces, there is no minimum age of consent for medical treatment for a person deemed capable. In Ontario, disputes over medical decisions, including consent and mental health issues, are heard at the Consent and Capacity Board.

Mark Handelman is a lawyer with a master's degree in bioethics. He's an expert in consent, capacity, and end-of-life law.

The definition of capacity to make your own treatment decision is fairly straightforward to speak to, but more difficult to apply, especially with a child, because sometimes you don't know how much understanding and appreciation is behind the answer.Mark Handelman

• Kenn Richard is the Executive Director of Native Child and Family Services of Toronto
• Mark Handelman is a lawyer with a master's degree in bioethics. He's an expert in consent, capacity, and end-of-life law.

Do you think children are capable of making their own medical decisions?

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This segment was produced by The Current's Connie Walker and Catherine Kalbfleisch.