Health

The child’s right to the enjoyment of the highest attainable standard of health

The right of the child to health [Article 24] must be interpreted broadly, paying attention to all factors that may affect the realization of this right. . . as human rights are interdependent, the enjoyment of the right of the child to health both affects and is affected by the enjoyment of other rights. Thus, if a child is sick and does not have access to health care services and is unable to attend school his [or her] right to education will be adversely impacted. Equally, if other rights of the Convention, such as the right to be free from violence (art. 19) are not realized, the impact on the child’s right to health will be immediate. Other rights intrinsically linked to the realization of the right to health include the right to life, survival and development (art.6), the right to equality and non-discrimination (art. 2), as well as the right to be protected from work that is likely to be harmful to the child’s health (art. 32), the right to be free from sexual exploitation and sexual abuse (art. 34) and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (art. 37). The right to play (art 31) is also crucial, as play is essential to the emotional and physical health and well-being of the child.


Accountability is a key component for ensuring the enjoyment of the right of the child to health, and national accountability mechanisms must be effective and transparent. Adequate accountability mechanisms include complaint systems, judicial remedies and independent monitoring bodies. With the active engagement of the Government, communities, civil society and children, national accountability mechanisms must aim to hold all actors responsible for their actions.

Office of the High Commissioner for Human Rights
Geneva, March 2013, pp 7 & 20

The Convention on the Rights of the Child (CRC)  Article 24 supports the right of every child to enjoy the highest attainable standard of health. This right is interpreted broadly recognizing all factors, and other rights that may affect its realization such as the right to live free from all forms of violence in CRC Article 19. States Parties are encouraged to ensure access to quality health care across the child’s lifespan including preventative care, and guidance for parents. Steps must also be taken to abolish traditional practices prejudicial to a child’s health. Several CRC General Comments address child health including GC No. 4 that elaborates on adolescent health and development.

The child’s right to participate in medical treatment decisions in Canada is recognized in law but varies across jurisdictions. Provincial/territorial laws address a child’s consent to medical treatment such as the British Columbia Infants’ Act and Ontario Health Care Consent Act. The Supreme Court of Canada has also indicated that the best interests of the child standard must be applied in a way that takes into increasingly serious account the young person’s views in accordance with his or her maturity in treatment decisions (A. C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181). In addition, provincial privacy laws address the child’s health care information and data management.

International Law

Convention on the Rights of the Child

CRC Article 6:

  1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
  2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:
    1. To diminish infant and child mortality;
    2. To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;
    3. To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;
    4. To ensure appropriate pre-natal and post-natal health care for mothers;
    5. To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;
    6. To develop preventive health care, guidance for parents and family planning education and services.
  3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.
  4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.

Interrelated CRC Articles: 2, 3, 6, 8, 9, 12, 13, 19, 24, 28, 29, 31, 37, 42

Other International Instruments

Interpretive Sources

Canadian Law

Federal Law

Provincial/Territorial Legislation

Many provincial/territorial laws address a child’s consent to medical treatment such as the British Columbia Infants’ Act and Ontario Health Care Consent Act, while provincial privacy laws address the child’s health care information and data management. See the Age and Healthcare Rights Appendix and the Minimum Age for Healthcare Directives Appendix for more information about laws in the provinces/territories.

In 2023 and 2024, the provincial governments of New Brunswick, Saskatchewan and Alberta made policy announcements and legislative changes intended to curtail the rights of transgender persons and specifically prevent transgender youths from receiving certain forms of gender affirming medical treatment as well as precluding transgender youths from participating in sport.  The federal government as well as many NGOs have expressed a view that these provincial laws and policies violate the Charter rights of children and youth.  The Canadian Medical Association and Canadian Psychiatric Association have objected to these reforms, saying they compromise the rights to medical treatment to which children are entitled. At time of writing, it is unclear when and how Charter challenges will transpire. It is clear, however, that these provincial laws are not aligned with the health protections set forth under the CRC.

Case Law

  • C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181 – This case involved the apprehension of an almost 15 year old girl who suffered gastrointestinal bleeding caused by Crohn’s disease when she refused a blood transfusion as a Jehovah’s Witness. Section 25(8) of the Manitoba Child and Family Services Act enabled the Court to authorize treatment that it considered to be in the child’s best interests and s. 25(9) presumed that the best interests of a child 16 or over was most effectively promoted by allowing the child’s views to be determinative, unless it could be shown that the child did not understand the decision or appreciate its consequences.  The following provisions of the Charter were raised: s. 2(a) (conscience and religion), s. 7 (life, liberty and security of the person and no deprivation of these unless in accordance with the principles of fundamental justice), and s. 15(1) (equality). The Court reviewed the common law for adults, the common law for minors, other jurisdictions, and the academic literature in concluding that the legislation led to, “an interpretive approach to “best interests” that is consistent with international standards, developments in the common law, and the reality of childhood and child protection” (para 80).  The Court found the legislative provisions constitutional and took the view that while the evolving and contextual nature of maturity makes it difficult to define, “the right of mature adolescents not to be unfairly deprived of their medical decision-making autonomy means the assessment must be undertaken with respect and rigour” (para 96) and to this end the Court offered several questions, not as a formula, but as examples to assist in assessing the extent to which a child’s wishes reflect true, stable and independent choices. 
  • Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78 – The petitioners named were infants with autism who, with the assistance of their parents as litigation guardians, claimed the provincial government’s failure to fund applied behavioral therapy violated their equality rights under the Charter. The unequal treatment rested in the fact that non-disabled children or adults received mental health services funded by the Province while autistic children were denied the applied behavioral therapy even though the Province acknowledged the importance of early intervention, diagnosis and treatment for autism. The trial judge and BC Court of Appeal both found the province violated the children’s equality rights, but the Supreme Court of Canada disagreed holding that there was no violation because the province was only required under the applicable legislation to fund core services provided by medical practitioners and this did not include the services in issue. The Court referenced the importance of looking at equality issues substantively and contextually in its reasons but it did not draw on the CRC to assist. Its equality analysis hinged on whether the service was a benefit provided by law, and whether an appropriate comparator group received unequal treatment to their benefit. It is noteworthy that a similar argument raised more recently by Canada that Aboriginal children on reserve should not be compared to children living off reserve was rejected by the Canadian Human Rights Tribunal with respect to a First Nations Child Welfare Complaint (Docket: T1340/7708).
    • (R.) v. Children's Aid Society of Metropolitan Toronto [1995] 1 SCR 315 – The Supreme Court Of Canada dismissed contentions made by Toronto parents who were Jehovah’s Witnesses who claimed their Charter rights were violated when their infant daughter received a court-ordered blood transfusion over their religious objections. The Court concluded that a parent's freedom of religion, as guaranteed under s. 2(a ) of the Charter, is necessarily limited by s. 1 such that it does not include the right to impose religious practices on a child that threaten his or her safety, health, or life. The child in the case was too young to have accepted her parents' faith. Therefore, the parents' refusal to allow her to receive a blood transfusion encroached upon her freedom of conscience. In principle, the freedom of religion possessed by one person, including a parent, does not encompass the activities of one person that categorically negate the freedom of conscience of another, including when that other person is their child.

Canada v. Canadian Doctors for Refugee Care et al 2014 FC 651 (appeal filed and subsequently withdrawn) In June of 2012, Canada’s Federal government made cuts to its healthcare insurance plan such that the health insurance provided to refugee claimants under the Interim Federal Health Program (IFHP) was cut.  The Applicants sought a judicial review of the decision. On July 4, 2014, the Federal Court found that the cuts resulted in a breach of two Charter provisions: s. 12 (cruel and unusual treatment, especially concerning children) and s. 15 (different treatment based on Designated Countries of Origin category).  In September of 2014, Canada appealed but following the 2015 federal election the appeal was withdrawn.

  • Inquest Touching the Death of Ashley Smith, Jury Verdict and Recommendations, Office of the Chief Coroner, Ontario: December 2013 - This was a medico-legal inquiry into the cause of death of nineteen year old Ashley Smith in Federal Corrections custody in 2007.  The jury’s precedent-setting, watershed finding was that Smith’s death was a homicide.  It was the first time that a homicide verdict had been rendered in relation to a prisoner in Canadian Corrections custody where the perpetrator of the homicide was not another inmate.  First placed in custody as a fourteen-year-old in a youth facility for one month in 2003, Smith’s index offence was throwing crab apples at a postal worker. However, once in custody Smith incurred hundreds of disciplinary infractions and scores of additional criminal charges in relation to her behaviour.  She was ultimately held in custody for over four years, almost entirely in isolation, and transferred into adult custody, where she died in 2007. Smith took her own life by a ligature while guards looked on for approximately 45 minutes before intervening.  In custody, Smith was confined and contained.  Her formal grievances were ignored and her rights were routinely violated.  She was transferred to adult facilities after turning 18, then transferred 17 times between 8 different facilities.  The verdict condemns the failures of Canada’s justice and correctional systems to ensure appropriate care, treatment, support, and protections for the rights of, adolescent inmates and provides a set of recommendations to address systemic issues in the Canadian Correctional System where youths who are inmates are not receiving adequate support/treatment for basic humane treatment.
  • Hamilton Health Sciences Corp. v. D.H., 2014 ONCJ 603 (CanLII) – A hospital brought an application against a Children’s Aid Society to require that an 11 year old girl to continue chemotherapy treatment in relation to her leukemia.  The child’s parents, of First Nations heritage, had opted not to continue with chemotherapy and instead to pursue alternative treatment in Florida.  They characterized this treatment as consistent with aboriginal practices and therefore argued it was an Aboriginal right of the child to elect to have alternative treatment in lieu of western health care. The Ontario Court ruled that the hospital could not force the girl to resume chemotherapy because the Constitution protects her mother’s right to treat the child using traditional aboriginal medicine.

Special Considerations

  • Consent and Capacity – A child’s right to participate in health care decision-making may include consent to medical treatment but the rules are variable across jurisdictions
  • Indigenous children have constitutionally protected Aboriginal and Treaty rights, as well as cultural rights under the CRC, that may impact their medical treatment decisions (Hamilton Health Sciences Corp. v. D.H., 2014 ONCJ 603 (CanLII))

Practice Essentials

  • If you are corporate counsel for hospitals:
    • recommend that policies and protocols are in place to ensure that children are involved in health care decision-making at developmentally appropriate levels and in accordance with the applicable law
    • ensure policies and protocols are in place so medical professionals understand that the best interests of the child should be the primary consideration in all health care decision-making about the child
  • Ensure children are informed about their health care rights and if they are capable of expressing their views that they have an opportunity to have input into the decisions made about them
  • Ensure the child’s privacy is respected and guarded carefully

Resources

Medical Resources