When Brant Children's Aid Society did not apprehend Makayla Sault, it did not do so in part because under Ontario law, she is able to make her own health-care decisions, according to executive director Andrew Koster.

Makayla, 11, died this week after refusing chemotherapy last year for acute lymphoblastic leukemia. She stopped the treatment after 12 weeks following what she said was a vision of Jesus. She opted instead for natural medicine, including a three-week course at Hippocrates Health Institute spa in Florida — a facility being sued by several former employees citing "ethical transgressions."

Ontario is different from many other provinces in that it affords children complete control over their own health-care decisions unless they are deemed incapable by a Consent and Capacity Board. Most other provinces work the opposite way — children must qualify as a "mature minor" in order for their decisions to hold sway. In Quebec, children under 14 are considered minors and must meet the "mature minor" test, while in Manitoba children under 16 are minors.

"Makayla was a wonderful, loving child who eloquently exercised her indigenous rights as a First Nations person and those legal rights provided to her under Ontario's Health Care Consent Act," said Koster in a statement. "The parents are a caring couple who loved their daughter deeply. Our thoughts are with them at this time."

A guide from the Provincial Advocate for Children and Youth that explains health-care consent to children says: "In Ontario the law is that everyone, even people younger than age 12, can make their own decisions about their health, including choosing 'alternative treatments,' traditional medicines, and culturally appropriate treatment."

In order to deem Makayla incapable of making her care decisions, McMaster Children's Hospital would have had to apply to a Consent and Capacity Board — something they did not do.

"It was not the appropriate forum at the time," Hamilton Health Sciences spokesperson Agnes Bongers wrote in an email.

Makayla's case is separate from a Nov. 14 court ruling about a different 11-year-old aboriginal girl, who is still alive, but whose name is under a publication ban. In that case, McMaster filed an application to apprehend the girl. Justice Gethin Edward, denied the application, ruling that it was the indigenous right of the girl's mother under the Constitution Act to pursue traditional medicine for her daughter.

Arthur Schafer, director of University of Manitoba's Centre for Professional and Applied Ethics, says he could understand why a child would not want chemotherapy, but does not think they would likely understand the true meaning of abandoning the treatment.

"The (chemotherapy) treatment is horrible — it's absolutely horrible. If someone says to the children we can cure you with carrots or organic fruits and vegetables … the children would say, 'I think I'll go for that option,' " said Schafer. "Was Makayla able to understand that she would not be cured in that way?"

The Canadian Pediatric Society's official position paper says children who are "primary school age" do not have the capacity to make their own health-care decisions.

Laura Tamblyn Watts, senior fellow at the Canadian Centre for Elder Law, says Ontario's policy is effective in that it recognizes age is not the best way to determine if someone can understand a medical decision.

"There is logic — good logic — in having it around the person's ability to understand and appreciate rather than an artificial age," said Watts. " What this case shows is that professionals — doctors, nurses social workers, occupational therapists — really need to spend a lot more time in training and understanding around consent and the requirements ... to get consent."

Schafer says while it's important to consider the input of children, they must be protected.

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"There's some decisions kids are capable of making and others they aren't. Children should always be involved to the greatest extent possible and so should their family — but if the stakes are very high and the risks are very great and there's a safe and effective treatment, even if it's got bad side effects, that's the point at which children need to be protected," said Schafer. "Once you become an adult you can throw away your own life, it's your call."

- Aboriginal girl who refused chemo dies