Can Kids Make Their Own Medical Decisions?
The COVID-19 pandemic has brought many legal and ethic disputes into the forefront: Mandatory vaccines, personal autonomy around healthcare decisions, Charter rights and civil liberties, and so on. By and large, the discussion around legal rights has so far focused on the adult members of society – and not on the children.
But the focus may turn to the rights of kids fairly soon. In Canada at the moment, the currently-available anti-COVID-19 vaccines have been approved only for individuals aged 12 and up. However it is expected that at some point in the near future, there will be widespread medical approval to immunize younger children against the virus too. This in turn leads to the question of what the present-day law is, around minor children making their own medical decisions on any topic – not just immunization.
In the first of this multi-part series, we will briefly discuss the law around a child’s/adolescent’s right to make their own decisions on their medical care and treatment.
The Age of Majority
The discussion begins with the concept of the “age of majority”. Although under Ontario law the age of majority is 18, this traditionally refers to fixed legal concepts and privileges, such as the ability to vote, to enter certain lawful contracts – even to buy a lottery ticket. This is the age which signals adulthood in connection with certain rights, privileges, and decision-making.
The Concept of the “Mature Minor”
However, health and medical care decisions are subject to slightly different considerations. The age of majority is not the pertinent threshold here, and there is no “line the sand” or other fixed age limit that differentiates childhood from adulthood in matters relating to health care.
Instead, under Ontario law called the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A., s. 4(1), any person – no matter what age – is entitled to make their own decisions if they meet two requirements:
- they understand the information relevant to making the decision about the treatment, admission, or personal assistance service (as the case may be); and
- they are able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
To satisfy this legislative threshold, the common law tests apply: It will depend on various factors, such as the child’s own intellectual and emotional maturity, and his or her capacity to understand the nature, complexity, and benefits of the medical treatment under consideration. It will also depend on the context in which the decision arises, and the child’s ability to understand its reasonably foreseeable consequences, and to make a reasonable choice.
In other words, whether or not a particular child qualifies to be a mature minor will not only depend on the child, but also on some situational factors.
What Rights Does Being a Mature Minor Bring?
Once a child qualifies to be a mature minor – and even though technically not yet of the age of majority – he or she is entitled to a certain decision-making autonomy around the particular medical treatment in question. This means the child will not need the consent of his or her parents for the decisions that must be made in that specific regard.
But this does not mean that it’s a once-and-for-all designation: Rather, a child can be considered a mature minor for only some needed medical procedures or treatments, but not necessarily for all of them. As such, for every new context requiring medical decision-making, the child will have to meet the test anew, before the mature minor designation can apply.
Given the complexity of this test, and the myriad potential scenarios to which it applies, there are many other legal issues raised. Among them is the question of when a medical decision can be overridden – whether it was made by the parents for their minor child, or by a mature minor for him or herself. We will look at those issues in an upcoming installment in this series.