Children and Consent to Medical Care
Script 422 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
Can children consent to medical care – if they are “capable”?
Yes, the BC Infants Act (available at www.bclaws.ca) says that children (anyone under 19 years old) can consent (or agree) to their own medical care – if they are capable. When are children capable? The law considers them capable if they understand the need for a medical treatment, what the treatment involves, and the benefits and risks if they get – or don’t get – the treatment. If the doctor or health care provider explains these things and decides that the child understands them and the health care is in the child’s best interest, they can treat the child without permission from the parents or guardians. The child might have to sign a consent form. For the law on adults and consent to medical care, check script 428, called “Adults and Consent to Medical Care”.
There is no set age when a child becomes capable. Doctors have to use their best judgment in each case to decide if a child is capable. Courts are flexible in deciding if a child is capable. It depends on how mature the child is and how serious the medical treatment is. A very young child may be able to consent to the dressing of a wound. On the other hand, an older child may not be capable of refusing life-saving treatment.
In 1985, a court found a 12-year-old girl capable of refusing a potentially life-saving transfusion and she later died. However, in 1993, a court found that a 15-year-old Jehovah's Witness boy who refused a potentially life-saving blood transfusion was not capable of refusing treatment. He had some idea that he would die, but he didn’t realize the full implications of the process of dying.
Children who are capable can normally get medical treatment without their parents’ or guardian’s knowledge or consent for things like birth control, abortion, mental health problems, sexually transmitted diseases, and alcohol and drug addiction problems. There are some exceptions to this general rule, and in some cases, parents may be able to get this information. For example, if there is good reason to believe that a child might harm themselves or others, or that there is reportable abuse (physical, sexual or emotional) then the information may not stay private. In such a case, the child should be told why their information won’t be kept private and who it will be shared with.
Is consent of a parent or guardian needed?
No, a doctor or health care provider can’t talk with the parents or guardian about a capable child’s medical care, unless the child agrees. Just as doctors must keep information about their adult patients confidential, they must also keep information about their capable child patients confidential. There are some limits to this rule, however. For more information on patient confidentiality, check script 421, called “Getting Your Medical Records.” Some doctors insist on telling a child’s parent or guardian if they treat the child. If you’re a child and you want your doctor to keep your medical information confidential, it’s important to tell the doctor.
Does medical care have to be in the child’s best interest?
Yes, capable children can consent to medical care only if it is in their best interest. If there is any disagreement about what a child’s best interest is, the people involved may have to see a lawyer and consider going to court. If a capable child refuses treatment that a doctor says is necessary, the parents or guardians, or the Ministry of Children and Family Development, can ask a court to overrule the child’s refusal. More information is available from the Client Relations Branch of the Ministry. In Victoria, call 250.387.7027. Elsewhere in BC, call 1.877.387.7027.
Is consent to medical care needed in a medical emergency?
Consent to medical care in a medical emergency may not be needed to treat a child or an adult – it depends on the situation. If a person’s life or health is seriously threatened, and it appears that the person isn’t capable of making health care decisions, health care providers may be able to treat the person without consent. Because they are dealing with a medical emergency, they may be able do whatever is necessary to try and save the person’s life or health.
But health care providers must not provide health care to an adult if they have reasonable grounds to believe that the adult – who is no longer capable – previously indicated that they wanted to refuse health care in a particular case – even a medical emergency. For example, an adult may carry a card saying they refuse to have a blood transfusion. If a person has previously indicated what they want in a medical emergency, health care providers must follow the person’s wishes if the emergency occurs. Whether a capable child, or a child’s parents, can refuse medical treatment in these types of situations raises complex legal questions. Parents and children who may wish to do so need legal advice.
Check script 238, called "Children's Rights" for general information on the rights that children have in several areas other than medical care.
[updated June 2012]
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