Originally published March 2014 / Revised May 2021
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.
Physician advisors at the CMPA often receive calls with regard to consent involving children. Questions about consent for treatment of children, and about who can consent to the release of children’s records, figure prominently in complaints to regulatory authorities.
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 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/guardians.
A child need not reach the age of majority to give consent to treatment. In almost all Canadian provinces and territories, the determining factor in a child's ability to legally provide or refuse consent is whether their physical, mental, and emotional development allows for a full appreciation of the nature and 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, parental notification of the stay is required.
Although consent to elective care can be provided by a minor who is 14 or older, if the care entails a serious risk to health or may cause grave and permanent effects, then parental or guardian consent must be obtained.
If a minor who is 14 or over refuses treatment, a court order is usually required to provide that treatment against the minor’s wishes, except in a small set of circumstances. In an emergency, if the minor’s life is in danger or their physical or moral integrity is threatened, then parental or guardian consent is sufficient.
Determining a child’s competence
Whether a child has the mental capacity (also known as competence) to provide consent is usually determined 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 legal guardian.
How does a physician determine whether or not a child has the capacity to consent? In discussions 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 their parents' knowledge. If the physician can be reasonably confident that the child 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 (with consent of the capable minor) when the treatment entails serious risks and may have serious and permanent effects on the child.
Case example: Consent
College determines physicians acted in best interests of mature minor
A 16-year-old saw a family physician for symptoms of severe depression. Speaking with the patient, the physician determined that the patient was mature enough to understand the seriousness of his symptoms and the need to address them. The patient also requested that the physician not consult with his parents. The physician referred the patient to an adolescent day treatment program where he was followed by a psychiatrist. He was diagnosed with major depression and agoraphobia.
After learning her child was undergoing treatment, the patient's mother filed a College complaint, alleging that the family physician and psychiatrist did not obtain proper consent for her child to attend the treatment program. The College stated that, by complying with the patient’s request not to consult his parents, both physicians acted in the best interests of the patient and in accordance to College practices.
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.