Supreme Court Inherent Jurisdiction to Protect Those Who Cannot Protect Themselves
Referring again to the Kenny Ng case, the wife as committee for the person of Kenny, had decided after seven years of him being in a coma, to remove his life support system.
His family applied to remove the wife as committee and substitute themselves so that they could essentially keep him alive.
The wife’s counsel argued that there was no legal basis to remove her as committee, and that she alone had the right to make that decision which was based on medical advice.
Kenny’s family appealed to the Court to invoke its inherent jurisdiction, or parens patriae, to protect those who cannot protect themselves
Under the Patient’s Property Act, ( PPA) the court may appoint a committee to take custody of a person who has been declared incapable due to mental infirmity.
Under the Health Care (Consent) and Care Facility (Admission) Act [HCCCFA] committees of the person are defined under that act to be permitted to make medical decisions on behalf of individuals who are in their custody.
The wife was appointed as Kenny’s committee under s.6(l) the PPA to both manage his affairs and to take custody of his person, including the power to make decisions under the HCCCFA.
The decision to withdraw Kenny’s food and water was made by the Respondent under the authority of s.l 1 of the HCCCFA.
Pursuant to s.6(2) of the PPA, a court has the power to rescind the appointment of a committee. The PPA does not, however, prescribe any criteria for that rescission.
The result is a legislative gap in the PPA, which invokes the parens patriae jurisdiction of the court.
In Re Bowman, 2009 BCSC 523, a 2009 BC Supreme Court Chambers decision, the court stated at paragraph 32 that:
On an application for either the appointment or removal of a committee [under the Patients Property Act], the test for determining who is appropriate to act as a committee invokes the parens patriae jurisdiction of this court and is governed by an assessment of who will serve the patient’s best interests.
The purpose and extent that the court can exercise its parens patriae jurisdiction is trite law, as set out by La Forest J. in the seminal Supreme Court of Canada case of Re Eve,  2 S.C.R. 388 at paras. 73, 74, and 77:
The parens patriae jurisdiction is, as I have said, founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his or her “benefit” or “welfare.” (para. 73)
The situations under which it can be exercised are legion: the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J v. C.,  A.C. 668, at p. 703, the authorities are not consistent and there are many twists and turns, but they have inexorably “moved towards a broader discretion, under the impact of changing social conditions and the weight of opinion…” In other words, the categories under which the jurisdiction can be exercised are never closed. Thus I agree with Latey J. in R. X, supra, at p. 699, that the jurisdiction is of a very broad nature, and that it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive, (para. 74)
…Though the scope or sphere of operation of the parens patriae jurisdiction maybe unlimited, it by no means follows that the discretion to exercise it is unlimited. It must be exercised in accordance with its underlying principle. Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised… The discretion is to be exercised for the benefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution that must be redoubled as the seriousness of the matter increases. This is particularly so in cases where a court might be tempted to act because failure to do so would risk imposing an obviously heavy burden on some other individual [emphasis addedl. (para. 77)
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