Children and Consent to Healthcare
The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. 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 Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
Can children consent to—or refuse—health care?
Yes, section 17 of the BC Infants Act says that children (anyone under 19 years old) can consent (or agree) to their own healthcare—if they are capable. A situation that involves just a doctor and a child patient under 19 years old can expand to include the child’s parents, plus a court and lawyers, if there are disagreements over the child’s best interests. It can also include the Ministry of Children and Family Development if there are concerns about the child’s welfare.
When are children capable?
The law considers children capable if they understand the need for a medical treatment, what the treatment involves, and the consequences (benefits and risks) if they get—or don’t get—the treatment. If a doctor or healthcare provider explains the consequences and decides that the child understands them and the healthcare is in the child’s best interest, they can treat a child who consents, without consent of the parents or guardians. The child might have to sign a consent form. And generally, if a child is capable of consenting to medical treatment, they are also capable of refusing medical treatment. (For the law on adults and consent to healthcare, check script 428, called “Adults and Consent to Healthare”.)
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. For example, in 2005, the BC Supreme Court upheld a Provincial Court decision that ordered a 14-year-old Jehovah’s Witness girl to have blood transfusions that she and her parents were refusing. Another example: a mildly developmentally disable child may be capable of consenting to have a small cut treated, but not capable of consenting to antibiotics for an infection.
Do children need the consent of a parent or guardian to get healthcare?
No—not if they are capable. They can consent to their own healthcare, without the consent or knowledge of their parents or guardians. Capable children can normally get medical treatment for things like birth control, abortion, mental health problems, sexually transmitted diseases, and alcohol and drug addiction problems.
If a parent or guardian is limiting a child’s access to healthcare, it could be abuse or neglect and the child may need protection. Anyone who knows of that situation must report it to Child Protection Services (1.800.663.9122) of the Ministry of Children & Family Development.
Is a child’s health care confidential?
A child's healthcare is confidential if the child is capable. A doctor or healthcare provider can’t talk with the parents or guardian about a capable child’s healthcare, 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 exceptions to this confidentiality rule. In some cases, parents or guardians may be able to get their child’s medical information or a doctor may have to disclose information to the Ministry of Children and Family Development. For example, if there is good reason to believe that a child might harm themselves or others, or there is suspected or reportable abuse (physical, sexual or emotional) then the information may not stay private. In that case, the child should be told why their information won’t be kept private and who it will be given to.
And if a doctor considers a child not capable, they will tell the child’s parent or guardian if they treat the child. So if you’re a child and you want your doctor to keep your medical information confidential, talk to the doctor before you get treatment to see if they agree you are capable, and if they will keep your information confidential. If not, you can look for a different doctor.
For more information on patient confidentiality, check script 421, called “Getting Your Medical Records.”
Does healthcare have to be in the child’s best interest?
Yes, capable children can consent to healthcare 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 health care that two doctors say is necessary to preserve the child’s life or health, under section 29 of the Child, Family and Community Service Act, the Director of Child Protection can ask a court to overrule the child’s refusal. More information is available from the Ministry. In Victoria, call 250.387.7027. Elsewhere in BC, call 1.877.387.7027. Or see the ministry website. More information is also available on the Legal Services Society Family Law website.
Is consent to healthcare needed in a medical emergency?
Consent to health 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 healthcare decisions, healthcare 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.
Refusing medical treatment in an emergency raises complex legal questions. Parents and capable children who want to refuse certain treatments in an emergency need legal advice.
Check script 238, called “Children’s Rights” for general information on the rights that children have in several areas other than healthcare.
[updated June 2018]
The above was edited by John Blois.
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