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Revised May 2023
As the COVID-19 vaccination rollout expands, there are a number of medico-legal considerations physicians will want to be aware of.
How do I engage parents or legal guardians who are reluctant or refuse to vaccinate their children against COVID-19? What if there is a dispute between the parents about the child receiving the vaccine?
- Confirm authorized decision-maker: Physicians will need to be aware of who is legally authorized to provide consent for the child’s vaccination. When a child is not capable of consenting to treatment, the physician providing the vaccine will want to make inquiries of the adult accompanying the child for the vaccination to confirm they are the parent or legal guardian with decision-making responsibility, or have authority to consent on behalf of the child. However, when the physician determines that the child has the capacity to consent, parental/legal 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.
- Respect decisions of mature minors: Except in Québec, physicians should generally respect an informed decision by a child who they consider to be a mature minor and capable of understanding the risks of accepting or refusing the vaccination. In Québec, the law generally only permits children 14 years of age and older to consent to their own care. Physicians should document the wishes of the minor and the parent/legal guardian, if known, in the medical record along with the physician’s assessment of the child’s capacity to consent and understanding of the risks.
- Explore, address and document reluctance: If a child is not capable of consenting and the parents/legal guardians are reluctant about the vaccine, physicians should explore and address the reasons for their reluctance, answer any questions to the best of their ability, and refer them to other relevant resources for information. Physicians will want to be empathetic and respectful, and remind parents/legal guardians that the best interests of the child are the primary concern. If the parents/legal guardians still refuse to consent to the vaccination, a detailed note of both the consent discussion and the refusal should be made in the medical record.
Manage disputes: Communication problems can arise when a physician receives conflicting directions from parents. Even in cases where the child’s parents are separated or divorced, both parents will typically have the right to provide or refuse consent for treatment on behalf of the child, unless an agreement or court order specifically modifies the rights of the parents. To clarify the authority of each parent to consent on behalf of the child, physicians may request copies of agreements or court orders regarding decision-making. These copies should be kept in the child’s chart. When there is a dispute between the parents, the physician should make reasonable attempts to obtain a consensus in the child’s best interests. If consensus cannot be achieved, the vaccine should not be administered. Physicians may contact the CMPA for further advice in these situations. Depending on the circumstances, it may be necessary to contact the public guardian, child services, or to apply to the court (or an administrative body) for direction.
See also: Shen S, Dubey V. Addressing vaccine hesitancy. Clinical guidelines for primary care physicians working with parents. Can Fam Physician. 2019 March, 65(3) 175-181.
How do I manage unvaccinated patients in my practice?
Physicians need to be mindful of the vaccination status of patients in their practice. Despite a patient’s refusal to be vaccinated, physicians should make every effort to continue to care for unvaccinated patients in the existing doctor-patient relationship in accordance with current standards of care. A refusal to provide care could put a physician at risk of a College complaint, human rights complaint and/or civil action; the success of which will depend upon the specific circumstances.
Where necessary, physicians will want to make best efforts to find reasonable alternatives to provide care to patients who refuse to be vaccinated. Physicians may offer to see these patients using virtual care, if appropriate. For patients who require an in-person visit, scheduling appointments at different times of the day or week to treat unvaccinated patients could be another approach. Physicians should also refer to public health guidance for treating patients in these circumstances.
For additional assistance and advice on caring for patients who refuse to be vaccinated, physicians should consult with their College and local public health authority, as well as contact the CMPA directly.
Do I have an obligation to be vaccinated against COVID-19? What are the repercussions if I do not comply with my facility’s or government’s mandatory vaccination policy? Will the CMPA assist me with College or hospital matters arising from my refusal to be vaccinated?
The CMPA generally encourages physicians to be aware of any mandatory vaccination programs applicable to their practice setting. Physicians will want to reasonably consider any mandatory vaccination policies that apply to them, bearing in mind their ethical, professional and legal obligations. Failure to comply with mandatory vaccination policies could lead to discipline. In particular, non-compliance with any applicable policy may result in remedial and/or disciplinary action by the hospital or health authority and may lead to an investigation by the College.
The CMPA generally assists members with College and hospital matters relating to the professional practice of medicine; however, CMPA assistance will not generally be available for matters primarily arising from business or personal issues. The CMPA does not generally extend assistance to members to assist them in advocating for changes to government, hospital or College policies.
Members are encouraged to contact their provincial/territorial medical association or federation for more information regarding policy initiatives and measures with respect to mandatory vaccine policies.
Will the CMPA assist me with medico-legal difficulties related to the administration of COVID-19 vaccines?
The CMPA remains committed to providing members with liability protection for medico-legal difficulties arising as a result of care provided in Canada in the context of the COVID-19 efforts, including related to the administration of vaccines.
Physicians who are involved in developing medical directives are also generally eligible for CMPA assistance if they face medico-legal difficulties as a result of the medical content of the medical directive. Examples include the patient selection exclusion criteria or informed consent process. The CMPA will not generally extend assistance with respect to administrative or logistical issues associated with the vaccination process, such as decisions about prioritization of individuals eligible to receive vaccines. Physicians who are involved in these issues should ensure that the organization that they are being asked to serve will provide them with full defence and full indemnification in the event of medico-legal difficulties that arise from this role.
Need more medico-legal information amid COVID-19?
Browse other key topics in the CMPA COVID-19 Hub: