On August 7th, 2024, the Divisional Court of the Ontario Superior Court of Justice released an important decision, summarized below, affirming the rights of children with capacity to make decisions about their own health care under Ontario’s Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A.
Background
Facts
In June 2018, a complaint of professional misconduct was made against a physician (“the Physician”) by the parents of a 7-year-old Indigenous child pursuant to a series of events that unfolded on May 26th, 2018. Amongst other things, the parents complained that the Physician conducted a vaginal examination on their child, “JDSP,” without her consent, and racially discriminated against the family.
The family had attended the hospital where the Physician worked because the child was experiencing painful urination. Shortly after the Physician met with the family, she began screening for child sexual abuse and domestic violence, questions that seemed completely irrelevant to the child’s medical needs.
Instead of reviewing the urine screen for indicators of infection as requested by the parents, the Physician conducted a genital examination of the child despite her clear and unequivocal refusal thereof. The child physically resisted the examination and repeatedly told the Physician “no.” Resultantly, the medically unnecessary genital examination was performed on the seven-year-old child against her clear wishes.
In response to the complaint, the Physician claimed, amongst other things, that she believed the child’s consent to the genital examination was “implied” through JDSP’s mother, who encouraged her daughter to permit the examination.