“Mature” Children Can Refuse Medical Treatment: Supreme Court of Canada

by John McKiggan

Children Can Make Medical Decisions

A majority of the Supreme Court of Canada has ruled that children under the age of 16 who are capable of “mature, independent” judgment can make life or death decisions about their own medical treatment.

In A.C. v. Manitoba (Director of Child and Family Services) the court was asked to decide whether the Canadian Charter of Rights and Freedoms’ guarantee of liberty, equality and religious freedom requires medical care providers to respect the decisions of children under the age of 16 to refuse medical treatment.

Opposed Medical Treatment on Religious Grounds

In 2006 the Manitoba courts issued an order authorizing doctors to provide blood transfusions to A.C., a 14 year old Jehovah’s Witness. A.C. (and her parents) opposed the transfusions on religious grounds.

The trial division ruled unanimously that it was in A.C.’s best interest to have the transfusions relying on the medical opinions of her physicians that her health and possibility her life would be jeopardized if she did not receive the transfusions.

Children Have a Say In Medical Treatment

The Supreme Court of Canada ruled that children under the age of 16, who demonstrate sufficient maturity, have a say in the medical treatments they undergo.

While the Supreme Court of Canada’s decision involved a challenge to Manitoba’s Child and Family Services Act the decision will have broader implications across Canada.

The courts ruling will not only impact child welfare cases but may have an effect on future medical malpractice claims involving injuries to children.

Do Minors have to Provide Informed Consent?

In order for a doctor to administer medical treatment to a patient, they must have the patient’s “informed consent” to provide the treatment. If the doctor fails to obtain the patient’s informed consent, then the medical treatment is an assault and injuries that the patient suffers as a result of the treatment (even if the doctor isn’t negligent) can result in a damage award for medical malpractice.

So what happens if a doctor relies on the consent provided by a teenager’s parents where the child objects to receiving the treatment? Has the physician received the proper informed consent to provide the treatment? Is the medical treatment an assault? Is a doctor entitled to rely on consent provided by a teenager who is still legally a minor under provincial legislation?

Children’s Views Ought to Be Respected

Five judges on the Supreme Court appear to agree that, in the words of Madame Justice Abella:

“If, after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent’s views ought to be respected.”

I suspect the decision may have been more difficult if the parents had disagreed with their child’s decision.

Informed Consent More Difficult to Prove?

Medical malpractice cases are complicated enough to begin with. Cases involving a lack of informed consent often boil down to a case of “he said, she said” where the patient argues that the doctor didn’t properly advise them of the risks of a procedure and the doctor claims that the risks were properly explained and informed consent was obtained.

As a result of the A.C. case, courts are now going to have to consider both the views of the child and the parents when administering medical treatment to “mature” minors.

What do you think? If you are a teenager, should a doctor get your permission before performing a medical procedure? At what age should ignore the parents views and seek the consent of the minor before performing a medical procedure?

If you or a loved one have suffered injuries that you think may be due to medical malpractice you can contact me through this blog or by calling toll free 1-888-647-7201 for a free copy of my book: The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation.

One Response to ““Mature” Children Can Refuse Medical Treatment: Supreme Court of Canada”

December 31, 1969 at 6:00 pm, Brooke Baird said:

Does informed consent only apply in the cases of medical procedures? Can it also apply to the prescribing of harmful and mind altering drugs?

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