Health Care Consent Act and Mature Minors
The rules governing consent to health care treatment in Ontario are set out in the Health Care Consent Act, 1996. Pursuant to section 10 of the Act, health care practitioners (including nurses, doctors, pharmacists, dentists, physiotherapists, etc.) must obtain consent from a person before providing any treatment to that person. Additionally, in order to provide consent, the person must be “capable with respect to the treatment.” This means that the person must be “able to understand the information that is relevant to making a decision about the treatment, … and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”
In circumstances where the person to receive the treatment is not capable with respect to treatment, the treating health care practitioner must obtain the consent of the person’s substitute decision maker.
While there is no minimum age at which a person may be found capable with respect to treatment, it is generally accepted that very young children cannot consent to treatment. In those instances, the health care practitioner must obtain the consent of the child’s substitute decision maker (e.g,. their parent(s) or guardian). Consider, for instance, a five-year-old child who requires surgery. The surgeon will reasonably need the consent of the child’s parent or guardian.
This becomes more difficult, however, when the “child” at issue is a teenager. In these cases, if a dispute arises as to whether a child is capable of consenting to a particular treatment, the Court will apply the mature minor doctrine. As stated by Justice Abella in A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, the mature minor doctrine provides that the right, and ability, to make decisions regarding one’s healthcare and treatment varies in accordance with the person’s (child’s) level of maturity. The degree to which the child’s maturity is scrutinized will intensify in accordance with the severity of the potential consequences of the treatment or of its refusal.
Thus, whether a particular child is capable with respect to treatment will depend on that specific child’s ability to understand the information relevant to making a decision about the treatment, regardless of whether they are 10, 14, or even 17 years old.
Mature Minors do not Require Parental Consent for COVID-19 Vaccination
In A.C. v L.L,2021 ONSC 6530, the parents of three 14-year-old children disagreed whether the children should be vaccinated and attend in-person school. While the parties’ main issue was with whether the children should be required to attend in-person school, it ultimately required the court to consider whether the children needed their mother’s consent to receive the COVID vaccine.
Two of the children lived with their father and attended school virtually. While they wanted to return to in-person school, they wished to first be vaccinated against COVID-19. The other child lived with their mother, attended in person classes, and did not wish to be vaccinated. The mother took the position that all three children should be attending schooling in-person, but refused to provide the children who wished to be vaccinated with their health cards, which were necessary in order to obtain the vaccine.
The Court has now heard several cases in which parents dispute whether it is in the child’s best interest to attend in-person classes at school, or to attend classes virtually. In these cases, the Court has found that absent compelling evidence to the contrary, it is in the best interests of the child to attend in-person schooling where the government has authorized the return to in-person classes. The reasoning behind this is that the government and public health authorities are in a better position than the courts to weigh the risks and benefits of attending in-person classes.
Accordingly, in cases where the parents cannot agree on in-person or virtual schooling, the parent requesting virtual schooling bears the onus of proving, with expert evidence, that virtual schooling is in the child’s best interest.
The Court also considered the recommendations of public health officials, the school board, and the Ministry of Health, that school-aged children be vaccinated.
The Court ultimately determined that it was in the best interests of the children that they receive the COVID-19 vaccine and attend in-person classes.
The Court then considered whether the children needed their mother’s consent to receive the vaccine. In applying the Health Care Consent Act,and the mature minor doctrine as explained by Justice Abella in A.C. v. Manitoba (Director of Child and Family Services), the Court found that the children did not need their mother’s consent to receive the Covid-19 vaccination.
It is important to note that in this case the mother ultimately agreed that the children were capable with respect to treatment. Therefore, the Court was not required to engage in an analysis of each individual child’s maturity and ability to understand the information relevant to making a decision whether to received the COVID vaccine. If, however, the mother had taken the position that the children were not mature minors, and were not capable with respect to deciding whether to receive the vaccine, the Court would have been required to engage in an analysis of each child’s individual maturity and ability to understand the relevant information.
In reaching its decision with respect to the children’s ability to consent to vaccination, the Court referenced the Ontario Ministry of Health’s COVID-19 Vaccine Youth (Age 12-17) Consent Form, which does not require a parent or legal guardian’s signature or consent. The formhas since been updated for ages 5-17.
Disclaimer: Our blog is not a substitute for legal advice tailored to your specific case, especially when the landscape is subject to rapid change. The team at Wise Health Law are experts in understanding and navigating the changing health care landscape. Please contact us as we may be able to assist.