In brief
The Criminal Code sets out the age of consent for sexual activity. Physicians should be guided by legislation in each province and territory on their duty to report such activity to the appropriate authorities if there are reasonable grounds to believe the child is being abused.
A member-physician called the CMPA asking if he had a duty to report the following situation to the police or to the child protection agency:
A 14-year-old girl requested a prescription for the birth control pill. She revealed that she had been sexually active with several boyfriends who were not using condoms, and that her current boyfriend is 27 years old. He is neither a teacher nor a coach, and is not in a position of authority. There is no history of violence in their relationship. Her parents are divorced and she has a tenuous relationship with both of them.
What the Criminal Code says
The Criminal Code of Canada sets the age of consent for non-exploitive sexual activity at 16 years. The age of consent for exploitive activity (prostitution, pornography, or relationship of trust, authority, or dependency) is 18 years.
The age of consent stipulated in the Criminal Code is not intended to prohibit consensual sexual activity between young persons. For this activity, the law permits the following:
- Youth of 14 or 15 can consent to sexual activity with a person who is less than five years older.
- Youth of 12 or 13 may engage in consensual sexual activity with a peer who is less than two years older.
Children younger than 12 are judged incapable of consenting to any sexual activity with any person, regardless of the person’s age.
All sexual activity without valid consent constitutes a sexual assault, regardless of age.
Duty to report
Every province and territory has legislation that imposes a duty on physicians to report to a child protection agency if there are reasonable grounds to believe that a child is in need of protection (including sexual abuse).
Physicians must therefore consider whether they have a reporting obligation under the applicable provincial/territorial legislation if they believe a child has not legally consented to sexual activity.
For example, if a physician suspects that a youth is engaging in sexual activity with a person who is older than the exempted age difference, the physician may be required to report this information to a child protection agency, particularly where the child's parent/guardian is unwilling or unable to protect the child. A similar reporting duty may exist if the physician suspects a child under the age of 12 is engaged in any sexual activity. In determining whether the reporting duty is triggered, the physician will need to consider many factors including the child’s age, the age of the person with whom the child is engaged in sexual activity, and the nature of the child’s relationship with their parents/guardians.
Does a physician have any obligation to inform parents?
Physicians may wonder whether they are permitted to discuss with parents/guardiansa child's sexual activity. In Canadian common law jurisdictions (all provinces other than Québec), this depends on whether the child is considered by the physician to be a mature minor, that is, a person deemed to have the capacity to independently consent to medical treatment. Typically, children who are capable of consenting to treatment will also have the capacity to control their personal health information. If in the physician's judgment the patient is a mature minor, the physician cannot inform the parents/guardians without the patient's consent.
In Québec, the parents/guardians of a child less than 14 years old have a right of access to information contained in the child's medical record. For children 14 years or over, the child must be consulted and the physician must be of the opinion that disclosing the information to the parents/guardians would not likely result in harm to the child’s health or safety. If child protection services are involved, they should be consulted before providing information to the parents/guardians. In all jurisdictions, if the physician has grave concerns for the safety or well-being of the child, the physician should consider whether a report to the minor's parents/guardians may be appropriate. Privacy legislation generally allows doctors to disclose personal health information without consent to avert or minimize a significant risk of harm to an individual. Members may wish to contact CMPA for advice in these circumstances.
Does a physician have a duty to report to the police?
A physician does not have a duty to report a sexual offence to the police. This would be considered a breach of confidentiality unless there was consent from the patient (mature minor) or the patient's parent/guardian. If the police contact the physician, information should be provided only with the consent of the patient or the patient's parent/guardian, or with a court order.
In some circumstances, it may be appropriate for a physician to rely on the “permission to warn” exception under the relevant privacy legislation to disclose confidential patient information to the police, in order to avert or minimize a significant risk of harm to the patient (e.g. sexual abuse).
The advice provided
Based on the patient's behaviour, the physician believed his patient was being sexually abused, was in need of protection, and did not appear to have adequate parental supervision or support. The physician advisor from CMPA reassured him that it is appropriate to contact the local child protection agency; however, he did not have a duty to report the sexual offence to the police.
The bottom line
Because of the consequences of reporting or not reporting to a child protection agency, members should judiciously consider the specific requirements established under the relevant legislation. Members are encouraged to contact CMPA for advice if they are uncertain of their reporting obligations arising from the age of consent for sexual activity.
