Course:Law3020/2014WT1/Group F/Paternalism

Paternalism

Gerald Dworkin (not to be confused with previously mentioned legal theorist, Ronald Dworkin) disagrees with Mill and contends that interference with a person’s personal liberty for the purpose of self-harm is justified when it is for his or her own good. Further, paternalistic intervention will be permitted if the consequences of an individual’s free choice are “far-reaching, potentially dangerous and irreversible.” Dworkin argues that paternalism is comparable to a social insurance policy as it is a safeguard that serves to protect each consenting person in society from damaging his or her own personal autonomy.

Application to A.C. v Manitoba

The Manitoba Child and Family Services Act – first and foremost – protects the safety, security and well-being of children. Dworkin would therefore agree with this legislation because it acts as a safeguard for children who are not yet 16 years old and for minors who fail to demonstrate the maturity necessary to direct their own medical treatment. Where a child is deemed unable to know and do what is in his or her best interest, ss. 25(8) and 25(9) entitle a court to intervene and authorize the appropriate resolution.

This case arguably demonstrates however that society is moving away from paternalism. As Justice Abella states at paragraph 46, this case signals a decline in authority – be it parental or judicial – in accordance with a child’s evolution into adulthood. While a young person’s rights are traditionally restricted in relation to medical treatment, the law has begun to abandon the assumption that minors lack decisional capacity.

Furthermore, the majority and dissent both desert the age requirement in s. 25(9), instead choosing to adopt a sliding scale of scrutiny. This scale takes mature children under 16 into consideration and awards autonomy to those who can demonstrate they are a “mature minor.” Since it was the SCC who established this method of assessment, it will undoubtedly become the threshold with which to approach future cases.