Originally published March 2014 / Revised June 2016
The special relationship of trust between physicians and their patients requires that physicians always act in their patients' best interests. While physicians' responsibilities do not vary according to a patient's age, there are medico-legal considerations to keep in mind when treating children.
The CMPA reviewed its medico-legal case files that closed between 2007 and 2012 involving patients between the ages of one and 18. There were 451 complaints to regulatory authorities (Colleges) involving child patients, and of these 55% resulted in an unfavourable medico-legal outcome for physicians. Consent and communication issues featured prominently in these cases.
Age of consent — The legal age of majority has become largely irrelevant in determining when a young person may consent to his or her medical treatment. The concept of maturity has replaced chronological age, except in Québec, where the age of consent is 14 years and older.
Consent to treatment
Medico-legal issues related to the care of children often involve the question of who is legally authorized to provide consent for treatment: the child patient or the parents.
A patient need not reach the age of majority to give consent to treatment. In all Canadian provinces and territories the determining factor in a child's ability to provide or refuse consent is whether the young person's physical, mental, and emotional development allows for a full appreciation of the nature and consequences of the proposed treatment or lack of treatment — whether or not the patient has attained the age of majority.
In Québec, however, the Civil Code generally establishes the age of consent at 14 years, below which the consent of the parent or guardian, or of the court, is required. If the medical treatment requires a hospital stay of more than 12 hours, parental notification of the stay is required if the child is over 14 years of age.
Physicians usually determine whether a child has the mental capacity (competence) to provide consent on a case-by-case basis. When a child is found incapable of consenting to treatment, the parents or legal guardians are authorized to provide consent on the minor's behalf. However, when the physician determines that the child has the capacity, parental consent is not required. In such circumstances, the physician must obtain consent from the child, even when the child is accompanied by a parent or other delegated adult.
How does a physician determine whether or not a child has the capacity to consent? By discussing with the child, the physician should be reasonably confident that the child understands the nature of the proposed treatment and its anticipated effect. The child should also understand the consequences of refusing treatment. One way to gauge this capacity is to use the teach-back technique: ask the child to re-phrase what they have just been told and invite the child to ask questions. More complex medical situations may require more rigour in determining whether the child understands. It is prudent for physicians to also encourage the child to invite a family member to attend the discussion.
Physicians must use their judgment concerning a child's capacity to consent in many different circumstances, such as when a teen requests a prescription for birth control without her parents' knowledge or consent. If the physician can be reasonably confident that the patient has the capacity to consent and documents the relevant details of the consent discussion in the medical record, it is likely that a College would support the physician in the event of a complaint from a parent. Meanwhile, parental involvement is recommended when the treatment entails serious risks and may have serious and permanent effects on the patient.
Medical assistance in dying
An exception to the general rules regarding consent to treatment is medical assistance in dying (MAID). To be eligible for MAID, the patient must have reached the age of 18 years.
Case example: Consent
College determines physicians acted in best interests of mature minor
A 16-year-old male saw his family physician for symptoms of severe depression. In speaking with the patient the physician determined that the patient was mature and understood the seriousness of his symptoms and the need to address them. The physician referred the boy to an adolescent day treatment program where he was followed by a psychiatrist. He was diagnosed with major depression and agoraphobia. After learning her son was undergoing treatment, the patient's mother filed a College complaint, alleging the physicians did not obtain her consent for her son to attend the treatment program. The College stated that the family physician and psychiatrist acted in accordance with the patient's instructions not to consult with his mother, and acted in the best interests of the patient and according to College practices.
Case example: Communication
Inadequate communication with a child's parents gives the wrong impression
A mother attended the emergency department with her child who was experiencing vomiting and diarrhea. Viral gastroenteritis was diagnosed. A few days later the mother and child returned to emergency and the boy was admitted to hospital for intravenous rehydration. He was discharged after 3 days, but his symptoms soon returned and, after the child suffered a seizure, the parents returned once again to the hospital emergency. Following a cursory examination, the physician requested a consult with a pediatrician but the parents chose to transfer the child by car to another hospital. On the way, the child suffered another seizure. The child was subsequently diagnosed with hypoglycemia and mild dehydration secondary to viral gastroenteritis.
The mother lodged a complaint with the College, citing unprofessional care received at the first hospital. She stated that the doctor seen at their last emergency visit failed to take the child's condition, and her concerns, seriously. The College concluded that there had been a communication problem on the doctor's part in that he failed to adequately listen to the mother which, combined with the brief examination, resulted in the parents taking their child to another facility. The College reminded the doctor that listening and empathy are essential to maintaining good doctor-patient relationships, especially in difficult situations such as the one in this case.
This case example illustrates how, despite meeting the standard of care, a physician's lack of sensitivity to the parents' concern for their child can lead to medico-legal difficulties.
Case example: Communication
A non-custodial parent wants access to his child's medical record
The mother of a child patient had sole custody of the child and the father had visitation rights. The parents were embroiled in court proceedings concerning the custody. When the physician did not release the child's medical records to the father, the father lodged a College complaint. While in this case the College supported the physician's decision not to release the medical records to the father in the absence of a separation agreement or court order, it is important to note that parents with access rights are generally entitled to the same information as the custodial parent.
Communication problems can arise when physicians receive requests for copies of children's medical records, as often occurs in the midst of custody battles. Before releasing medical records physicians must first consider whether a specific parent is entitled to the information. This depends on several factors, including the age of the child, whether the child is deemed to have the capacity to control access to the record, and whether the parents have the right of access. When faced with time constraints and other stressful factors, these may be difficult concepts for a physician to explain fully, but doing so in a respectful and professional manner can prevent a complaint.
The CMPA's case files reveal that medico-legal difficulties can also occur when there are real or perceived gaps in communication with either the child patient or the parents. For example, a dismissive attitude by a physician about a parent's concern for her child's condition, inadequate explanations of findings given to the parents following examination of a child, and non-custodial parents' disputes concerning the physician's inability to release their child's medical records can all result in a physician being the subject of a College complaint.