In brief
- Age alone does not determine consent. In most of Canada, a child’s ability to consent to medical treatment depends on capacity, not age—except in Québec, where the age of consent is generally 14 years old.
- Medical assistance in dying (MAID) is an exception to the general consent rules. To be eligible for MAID, the patient must be at least 18 years old.
- Physicians must assess capacity case by case. When a minor demonstrates sufficient understanding of the treatment, its anticipated effect and consequences of refusing treatment, they can provide valid consent without parental involvement.
- Clear documentation protects physicians. Thorough capacity assessments and well-documented consent discussions are key to supporting clinical decisions if concerns or complaints arise.
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 patients under the age of 18.
Questions about who can consent to a child’s treatment and who can authorize the release of a child’s medical records figure prominently in complaints to medical regulatory authorities (Colleges), and physicians frequently contact CMPA with these same questions.
Age of consent — The legal age of majority is largely irrelevant in determining when a young person may consent to medical treatment. The concept of maturity is more determinative than chronological age, except in Québec, where the age of consent is generally 14 years and older.
Consent to treatment
Medico-legal issues involving the care of children often centre on who is legally authorized to provide consent for treatment – the child patient or the parents/guardians. A child does not need to reach the age of majority to give consent to treatment. In most Canadian provinces and territories (with the exception of Québec), what matters is the child’s capacity - whether their physical, mental, and emotional development allows them to fully understand the nature and potential consequences of the proposed treatment or lack of treatment.
Consent to treatment in Québec
In Québec, the age of consent is generally 14 years of age. If the child is below that age, or does not have the capacity to consent, the consent of the parent or guardian, or a court order, is required. If the medical treatment consented to by a minor who is 14 or over requires a hospital stay of more than 12 hours, parents or guardians must be notified.
While minors 14 and older may consent to elective care, parental or guardian consent is still required if the treatment poses a serious risk to health or could result in grave and permanent effects.
If a minor who is 14 or over refuses treatment, a court order is typically needed to proceed against the minor’s wishes. In emergencies, however – when the minor’s life is at risk or their physical or moral integrity is threatened – parental or guardian consent is sufficient.
Determining a child’s capacity to consent
Case-by-case assessment
A child’s ability to provide informed consent, also referred to as capacity or competence, should be evaluated on an individual basis. When a child is found incapable of consenting to treatment, a parent the parents or legal guardian can provide consent on their behalf. However, when the physician determines that a child does have the capacity, parental/guardian 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 legal guardian.
How physicians determine capacity
Understanding of the treatment
To determine capacity, physicians must be reasonably confident that the child understands:
- The nature and purpose of the proposed treatment
- The expected benefits and potential risks
- The consequences of refusing treatment
Using the teach-back technique
An effective way to gauge capacity is to use the teach-back technique:
- Ask the child to explain, in their own words, what they have just been told
- Encourage questions to confirm understanding
In more complex medical situations, a more detailed assessment may be necessary. Physicians may also find it helpful to encourage the child to have a family member present during the discussion.
Balancing autonomy and safety
Physicians must assess a minor’s capacity to consent in varying circumstances, such as when a teen requests a prescription for birth control without parental involvement. If the physician can be reasonably confident that the child has the capacity to consent and they appropriately document the consent discussion in the medical record, regulatory Colleges are likely to support the physician in the event of a complaint from a parent/guardian. Even when a child is capable of consenting, involving parents or guardians (with the child’s permission) is recommended when the proposed treatment carries serious risks or may result in serious and permanent effects.
Case example
College finds physicians acted in best interests of mature minor
A 16-year-old saw a family physician for symptoms of severe depression. After speaking with the patient, the physician determined that the patient had the maturity and capacity to understand their condition and the need for treatment. The patient also asked that the physician not consult with their parents. The physician referred the patient to an adolescent day treatment program, where a psychiatrist diagnosed them with major depression and agoraphobia.
After learning their child was undergoing treatment, the patient's parent filed a College complaint, alleging that the family physician and psychiatrist did not obtain proper consent for the child to attend the treatment program. The College concluded that both physicians acted in the best interests of the patient and in accordance with College practices by respecting the patient’s request and assessing them as capable of consenting to their own care.
Exception: Medical assistance in dying
Medical assistance in dying (MAID) is an exception to the general consent rules. To be eligible for MAID, the patient must be at least 18 years old.
Additional reading
