Parents take on state over blood transfusions

The Globe and Mail, Canada/May 30, 2007
By Mark Hume

Vancouver — A legal battle that started shortly after sextuplets were born to a Jehovah's Witness couple in January resumed in court yesterday, as lawyers argued about the rights of the parents versus the power of the state.

The legal gauntlet was thrown down a few weeks after the six babies - the first sextuplets born in Canada - were delivered in what was hailed as a miraculous birth at BC Children's Hospital in Vancouver.

The tiny babies, who weighed only 700 to 800 grams each when born at 25 weeks gestation, struggled from the beginning; within days two had died. When doctors noted dropping hemoglobin levels in the four surviving infants, - two boys and two girls - they advised blood transfusions, despite the religious objections of the parents.

Now the parents are looking for a chance to cross-examine those doctors in court during a judicial review where they are seeking to show the government violated their rights by ordering blood transfusions without first giving them a chance to argue their position in court.

"It comes back to the issue of fairness," Shane Brady, a lawyer for the parents, said in the B.C. Court of Appeal.

"We're just saying give us the opportunity to test the other side's case, because the parents have never had that opportunity."

The parents are seeking leave to appeal an earlier decision by Chief Justice Donald Brenner, of the Supreme Court of B.C., that the government could introduce medical evidence via affidavits, without producing the doctors for cross-examination.

But Mr. Brady said it would be unfair to stop the parents from challenging the medical orthodoxy by cross-examining the doctors whose medical opinions triggered the government's action.

"This is parents rising up against state action," Mr. Brady said.

"… And the state position is you are restricted and can't cross-examine … [that leaves] no opportunity to test the veracity, the reliability or the credibility of the [doctors'] evidence," he said. B.C. is the only province that allows the state to apprehend children and authorize medical treatment without first obtaining a court order.

When the hemoglobin levels of the four surviving sextuplets started to drop, the Ministry of Children and Family Development seized the babies, taking them from their crying parents in the neo-natal ward, and returning them after the blood transfusions were complete.

Mr. Brady said the parents question "whether the blood transfusions … were essential" and argue that alternative treatment was available.

"Chief Justice Brenner … assumed the [affidavit] evidence was reliable without cross-examination," he said. "[But] these children were all transfused based on outdated methods … the transfusions were not medically necessary," he argued before Mr. Justice Edward Chiasson of the Court of Appeal. "Our clients haven't been heard at all."

George Copley, representing the Attorney-General of B.C., told court that under the Child, Family and Community Services Act, the government only needs the opinion of two medical practitioners before apprehending children and ordering treatment.

He said Chief Justice Brenner does not need to know whether the medical opinions offered by the doctors at BC Children's Hospital are right or wrong. The fact that they recommended transfusions was enough to trigger the government process and consequently cross-examination is pointless.

"This matter is completely moot at this point in time," he said in asking that the application be dismissed.

Judge Chiasson, who expects to have a judgment ready by Friday, said the Court of Appeal has traditionally been reluctant to "interfere" in proceedings under way in another court. But he didn't rule out that possibility.