Minors and Capacity to Consent to Treatment

• Author: Nicholas Bala, John S. Leverette, and Emily Bala
• Pages: 1079-1090

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CHAPTER 50

Minors and Capacity

to Consent to Treatment

Nicholas Bala, John S. Leverette, and Emily Bala

I. INTRODUCTION

is chapter examines the issues of how to obtain consent to medical treatment from a minor, and when

physicians should instead look to parents or the justice system for consent. e question of when and how

a minor may consent to or refuse his or her own medical treatment is a complicated one, and one that

has not been denitively resolved in Canadian law. Capacity assessments by their very nature will always

involve a certain amount of judgment and subjectivity on the part of both the attending physician and,

in some cases, legal professionals. e chapter will rst address the common law rules on when minors

may consent to treatment, and then provide an introduction to legislation that deals with the medical

treatment of minors. e chapter then discusses important practical considerations for physicians as-

sessing capacity and providing treatment to minors. e chapter concludes with a brief examination of

some capacity issues unique to minors’ mental health treatment.

II. COMMON LAW ON MINORS AND CONSENT TO TREATMENT

In law, there is no single denition of “child,” “youth,” or “capacity”; rather, context and legislation deter-

mine how these concepts are understood and applied. In some contexts, legislation requires that a young

person must reach a specic, somewhat arbitrary age before she has the capability to exercise certain

powers; for example, in Canada, a youth must be sixteen years old to give a legally valid consent to hav-

ing sexual relations with an adult. In other contexts, such as driving, legislation requires that a youth

must not only reach a certain age, but also pass a government-administered test. e issue of young

people providing consent for their own medical treatment under common law, however, is unlike either

of these cases, as it is generally necessary for a health care provider (or court) to make an individualized

assessment of capacity without specic reference to age.

A. Capacity to Consent at Common Law

At common law, consent to medical treatment is regarded as a type of contract, formed between patient

and physician. Historically, young persons could not make decisions about their own medical treatment

until they reached the age of majority, which today is eighteen or nineteen, varying by province and terri-

tory. Only a parent could consent to the provision of medical treatment for a minor; today, in ma ny cases,

medical treatment can still legally be provided with the consent of a child’s parent or guardian.

As common law has developed over the last 200 years, judicial decisions have recognized that some

minors have the capacity to consent to the provision of “necessaries,” including medical services. As

mentioned in the introduction to this chapter, this common law recognition of capacity to consent to

medical treatment does not come at a certain age. Rather, a minor is today considered to have capacity

when he is found to “understand the nature and consequences” of a specic treatment. is position was