The basis for the requirement of consent is found in the common law and in legislation in several provinces1 including Ontario. Interestingly, consent and capacity legislation varies among the provinces such that there are differences among the provinces as to the requirements and conditions for obtaining consent.
Two general requirements and conditions for obtaining consent to medical treatment are that the patient must have capacity for the treatment decision and that the consent must be informed. According to the common law, capacity is the ability to appreciate the nature, purpose and consequences of the proposed treatment. Informed consent requires that the patient has been advised of the material risks and benefits of the proposed medical treatment and the alternatives. The failure of a health care professional to obtain consent, or to obtain informed consent, exposes the health care provider to liability2.
The process of obtaining consent for a patient who is a minor may present unique issues, which vary among the provinces.
This article will consider the following questions:
- Under what circumstances can a minor provide consent to medical treatment?
- When a minor is not able to provide consent, who makes the consent decision?
- Is there any circumstance where the health care decision of a capable (mature) minor can be overridden?
Under what circumstances can a minor provide consent to medical treatment?
A minor is an individual under the age of majority. The age of majority varies among the provinces and territories.
In provinces3 where there is no consent and capacity legislation the common law governs. On the issues of minors and consent to medical treatment, the Supreme Court of Canada has endorsed the “mature minor” doctrine4. In these provinces a child of any age is capable of providing consent if they have the maturity, intelligence and capacity to understand the nature and purpose of the proposed health care, along with the ability to appreciate the reasonable foreseeable consequences of such a decision. If a child meets these requirements then parental consent is not required and does not override the decision of the child. If a child does not meet these requirements then the consent of the parent is required before health care can be provided to the child.
In Ontario5, similarly, there is no age restriction on the ability to give informed consent. The determining factor is whether the person is capable. A person is capable if he or she is able to understand the information that is relevant to making the decision about the proposed medical treatment and is able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision. There is a presumption that a person is capable with respect to medical treatment and a person is entitled to rely on that presumption with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable. Therefore minors in Ontario are able to give informed consent and make their own medical decisions if they are able to understand the relevant information about the proposed medical treatment and appreciate the reasonably foreseeable consequences. An individual may be capable of making some medical decisions but not others depending on the complexity of the issues relating to the proposed treatment.
Prince Edward Island6, the Yukon7 and Manitoba8 have comparable legislation to Ontario that bases the ability to give consent on the capacity to understand the relevant information and reasonably foreseeable consequences. In PEI and the Yukon a person, including a minor, is presumed to have this capacity regardless of age. In Manitoba, minors who are under 16 years of age are presumed not to have the capacity to make health care decisions, although this presumption is rebuttable with evidence to the contrary.
In Quebec9, a minor who is 14 years of age or older may give consent to health care that is not required by the state of his or her health. Parental consent is required if the health care involves any serious risks or if it may cause grave and permanent effects to the child.
In British Columbia10, minors11 may consent to health care if they understand the nature and consequences of the health care, as well as the reasonably foreseeable benefits and risks. In addition, reasonable efforts must be taken by the health care professional proposing the medical treatment to determine that the health care is in the best interests of the minor. Therefore minors, even if they understand the information and reasonably foreseeable risks, do not have complete autonomy to make health care decisions and can only make the decision where the treatment has been determined to be in their best interests.
In New Brunswick12, minors are able to make health care decisions if they have attained the age of majority, 16 years old. If a minor is younger than 16 years old ,then he or she may make his or her own health care decisions if, in the opinion of a legally qualified medical practitioner, he or she is capable of understanding the nature and consequences of the treatment and the treatment is in his or her best interests.
When a minor is not able to provide consent, who makes the consent decision?
Pursuant to the common law, when a minor does not have the capacity to consent, the consent of the parents or guardian is required.
Many provinces have substitute decision making legislation that displaces the common law and specifically defines who is able to give consent on behalf of a minor. Generally, each province and territory with substitute decision making legislation will have a definition of a “parent” or “guardian” within the legislation. The parent or guardian has the authority to give consent on behalf of a minor in relation to their health care or medical treatment. There are legislative differences between jurisdictions, such that the requirements to be considered a parent or guardian will vary among the provinces and territories.
Is there any circumstance where the health care decision of a capable (mature) minor can be overridden?
At common law, the mature minor doctrine sets out that a minor who is capable of making his or her own health care and treatment decisions cannot be overridden by his or her parents or the parens patriae13 jurisdiction of the Court.
Although the common law allows a capable (mature) minor to make decisions without the input of his or her parents, in practice it is not so simple. There may be times when it is prudent practice for a health care provider to inform the parents even if the minor is capable, or seek their to aid in the determination of whether the minor is capable. At the same time, health care providers must be careful not to violate any privacy rights that may exist for the minor. There may also be issues in circumstances where a minor is not capable and has two or more parents or caregivers that do not agree on the course of medical treatment.
All provinces and territories have enacted child welfare legislation which overrules the common law, allowing a court to override the consent or decision of a minor in certain circumstances. Such circumstances often relate to the well-being of the minor or the court determining that the minor is in need of “protection”. In these cases, a court may make an order that a treatment is or is not to be performed, regardless of the consent of the minor or his or her substitute decision maker. The circumstances under which a court will make such an order are very specific and vary among the provinces.
Although there are differences among the provinces, many minors have the capacity to make their own medical decisions and provide informed consent, if they are able to appreciate the proposed health care treatment and the reasonably foreseeable consequences of making or not making a decision. It is possible, however, that if the situation is dire, or of grave importance, a court could make an order overriding the wishes of the minor and the parents.
Practically speaking, courts have not supported decisions by minors refusing life-saving treatments. Generally, the more serious or significant the consequences of a decision, the more likely it is that a court will overrule a minor’s decision if it is in the minor’s well-being.
Kimberly N. Knight is an associate with our Medical Malpractice team. She has appeared before the Ontario Superior Court of Justice, as well as the Health Professions Appeal and Review Board. If you have questions about your legal rights, please do contact Kimberly at 519-660-7749 or [email protected].
1 The provinces of British Columbia, Manitoba, New Brunswick Ontario, Prince Edward Island, Quebec, and the territory of the Yukon.
2 The failure to obtain consent may give rise to the tort of battery, while the failure to obtain informed consent may result in a finding of negligence.
3 Alberta, Manitoba, Nova Scotia, Newfoundland and Labrador, the Northwest Territories, Nunavut and Saskatchewan.
9 Civil Code of Quebec, SQ 1991, c 64. An Act Respecting Health Services and Social Services, RSQ, c S-4.2.
11 In British Columbia, the legislation defines a person under the age of majority as an “infant” instead of a “minor”.
13 The inherent jurisdiction of the courts to make decisions concerning people who are not able to take care of themselves.