Children have a right to decide own medical treatment

By Staff

There is no age of majority when it comes to health-care decisions in Ontario and most of Canada, Toronto health lawyer Elyse Sunshine tells

The Canadian Press (CP) recently reported on the scheduling of an inquest into the death of a 16-year-old British Columbia boy who overdosed on painkillers, despite his parents' concerns that they weren't allowed a say when it came to his use of prescribed opioids.

But, the age of the child will likely have little bearing on the coroner’s findings, says Sunshine, partner with Rosen Sunshine LLP.

“Regardless of their age, children are treated by medical professionals in the same way as any other person, as long as they are capable of making their own decisions,” she says. “Whether the child was actually capable may be an issue in this case.”

Sunshine explains that the law in B.C., as with Ontario, recognizes a capable child as the autonomous patient in these circumstances, placing the necessary requirement to obtain the consent for treatment with them, rather than their parents.

“The age is going to be a factor when you’re talking about children, but there’s a presumption of capacity, as with adults,” she says. “You hear about 16 or 18 as an age of majority, but a person doesn’t actually have to reach a particular age to give consent to treatment.”

Sunshine says the issue arises more commonly than people might imagine, often in cases when the religious views of either the child or the parents conflict with a particular medical treatment or procedure.

For example, a parent may object to a child seeking birth control options from a medical professional. More complicated cases may involve children refusing a blood transfusion or cancer treatment.

“Determining capacity is key when seeking consent. There may be a question about whether the child is sufficiently cognitively developed to be able to understand (process and retain) the information relevant to a treatment decision, or able to appreciate the consequences of undergoing or refusing the treatment," Sunshine says.

"This means the child has insight into their condition, and is able to apply the information provided by the health provider to their circumstances, weighing the risks and benefits in order to make a decision.”

Either way, she says it’s understandable for parents to experience frustration, or upset, in these situations, as appeared to happen in the B.C. case.

CP says the boy’s parents said they felt “trapped by a medical system that didn't give them a say in their son's painkiller prescriptions” before he was found dead in bed at the family home last April.

The news service says the boy began using drugs after being prescribed opioids as part of his recovery from a series of surgeries. While the parents wanted him prescribed pain treatment, they were told their son was old enough to make his own decisions.

An inquest will take place this summer to review the circumstances of the boy’s death, with a jury given the opportunity to make any recommendations they deem necessary to prevent similar deaths.

“It’s obviously an incredibly tragic case. But technically and legally, if the child was capable of making his own health-care decisions, then the physicians acted appropriately in not giving the parents information,” Sunshine says, noting that she is not involved in the case or familiar enough with the facts to make a definitive assessment.

Still, she says it wouldn’t be improper for a physician to consider the views of a concerned relative when making treatment decisions for a child patient.

"However, while the physician can receive the information from the relative, they cannot discuss the case without the consent of the patient," Sunshine says.

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