Ethical and Legal Issues in the
Medical Care of Minors
Drs. A. Latus, B.Barrowman
April, 2003
Outline
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Who is a “minor”?
Consent
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“mature minor” principle
legislation re age of consent
cases
Confidentiality and Access to
Information
Minors
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Who is a “minor”?
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“age of majority” defined in provincial legislation either 18 or 19
i.e. the legal category of minors = newborns to
late teens - a disparate group in terms of needs
and abilities
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Infants & young children
Primary-school children
Adolescents
differences re. age of minors sometimes cause
systemic problems
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E.g., Janeway deals officially with < 16 years, but
expertise on some conditions affecting late teenagers,
young adults (e.g., anorexia) is best available there
Minors and Medical Ethics 1
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Basic paradigm of medical ethics is individual,
informed, autonomous decisions
Fits uneasily with the gradual development of
children
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competence poses problems since gradual
development clashes with mistaken tendency to
view competence as ‘all or nothing’
competence, even for specific tasks, is a ‘heap’
notion
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i.e., when we have a heap on our hands is unclear
Minors & Medical Ethics 2
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Recall that most commonly appealed to
ethical principles are autonomy &
beneficence/non-maleficence
Medical care of minors poses potential
problems on both grounds
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gradual development of competence means
presence of autonomy is often controversial
in the absence of autonomy, judgments about
what will benefit/harm a child are often
problematic
Minors and Health Law
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In some respects, the law accords
young people increasing legal power as
they mature
In other areas, law adheres to more
rigid age-based categorization of
minors’ capacity and legal rights
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e.g. alcohol, voting
Both approaches are evident in health
law
Consent - General Principles
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“Every human being of adult years and
sound mind has the right to determine
what shall be done with his own body.”
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Schloendorrf v. Society of New York Hospital
(N.Y. Ct.App., 1914)
Treatment without consent can give rise
to civil, criminal and professional
disciplinary liability
Consent and Minors
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Where child cannot yet make treatment
decisions, parents have both the power and
the obligation to do so
Standard for parental decisions?
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in absence of autonomy, beneficence becomes the
most important value
hence, general standard for substitute decisionmakers is “best interests of the patient”
parents given some (but not complete) discretion
in determining their child’s best interests
Mature Minors and
Consent to Treatment
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The law recognizes that decisional capacity
re. health care is not rigidly tied to age
Common law mature minor rule:
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a minor who can understand and appreciate the
nature and consequences of a proposed medical
procedure/treatment and its alternatives can give
a valid legal consent
This replaced the previous common law test
of “emancipation”
The “Mature Minor” Principle
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Disadvantage of rule - lack of certainty
Advantage - individual assessment:
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matches ethical reality
adolescence involves struggle for
autonomy and to settle on appropriate
degree of relatedness to one’s family
achieving maturity is incremental process
development affected by personal
characteristics and environment
Mature Minor? Assessment of
Decisional Capacity
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Some skills or aspects of development
which may be important to assess:
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ability to comprehend complex concepts
formulation of settled value system
imagination of own future
“understanding” of death
emotional and social maturity
Settled Value System
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Situations involving minors highlight an often ignored
feature of ‘ordinary’ autonomous decisions
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our focus on autonomous decisions implicitly assumes the
person making a decision to undergo/refuse treatment now
is the ‘same person’ who will have to live with the
consequences of that decision later
this tends to assume that, broadly speaking, your values
now will resemble your values in the future
this is always potentially false, but particularly so in the
cases of minors
Mature Minor? DecisionSpecific
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Courts have recognized that the degree
of understanding and appreciation of
consequences of treatment and
alternatives required for a finding of
decisional capacity varies with the
gravity of the decision
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e.g. life-sustaining treatment vs. treatment
for minor ailment
Hospital Policies re
Age of Consent
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Note: hospitals policies re age of
consent, signing of consent forms by
parents, etc., do not overrule the
general law governing consent to
medical treatment by/for minors
Legislation and Age of
Consent
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Provincial governments have jurisdiction to
pass legislation concerning age of consent to
health care - some have done so
Also there are some laws, such as child
welfare laws, which while not primarily
concerned with age of consent to health care,
may impact on it
Where a province has relevant legislation, this
is a starting point - then consider how the
common law principle of “mature minor” is
affected by this legislation
Legislation and Age of
Consent
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Several provinces have legislation which
creates a presumption of capacity to consent
at a certain age (and presumption of
incapacity below that age)
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NL Advance Health Care Directives Act - age 16
Mature minor principle still valid with this
legislation
Interaction of Legislation and
Mature Minor Principle
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Some jurisdictions have legislation which may
modify or limit application of the mature
minor principle
Generally based on principle of beneficence:
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e.g. BC, NB have laws stipulating that minors may
only consent if “mature” and if health care
provider satisfied that treatment is in their best
interests (may impose difficult task on MD)
Mature Minor Principle and
Child Protection Legislation
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The interaction of the mature minor principle
and child protection legislation concerning
provision of medical care has recently given
rise to some difficult and controversial legal
decisions
Cases generally involve children with lifethreatening illnesses who refuse
recommended treatment
 e.g. Jehovah’s witness adolescents refusing
blood transfusions
Child Protection Legislation re.
Medical Care
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NF Child, Youth and Family Services Act
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s. 32 Where director or social worker
believes child to be in need of protective
intervention because of parent’s refusal to
obtain or permit essential medical
treatment recommended by qualified
health practitioner, director or social worker
may apply for order of judge authorizing
the treatment
Cases
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Re A.Y. (NF Supreme Court 1993)
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15 year old Jehovah’s Witness boy with
NHL found to be mature minor who could
refuse blood transfusions
Walker (NBCA 1994)
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15 year old Jehovah’s Witness boy with
AML able to refuse blood transfusions
Cases
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Re Dueck (Sask Q.B. 1999)
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15 year old boy with osteosarcoma,
refusing further chemo or surgery, he and
father wanting him to go to Mexico for
alternative Rx
found to be “child in need of protection”
and not “mature minor”
Cases
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B.H. (Alta CA 2002)
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16 year old Jehovah’s Witness girl with AML
proposed Rx - intensive chemotherapy, supported
by blood transfusions
B.H. refused blood products
initially supported by both parents, later father
changed his position
Director of Child Welfare intervened (note: Alberta
Child Welfare Act applies up to age 18)
B.H. - Court Decisions
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Alberta courts disagreed about whether B.H. was a
mature minor and relied on child protection
legislation to order treatments to proceed
One court found that she had been subject to undue
influence from church and mother such that she
could no longer exercise free choice
When B.H.’s condition became terminal, province
abandoned wardship and Rx order
Supreme Court of Canada decided not to hear case
Exceptions to Application of
Mature Minor Principle
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Some provinces have special statutory
provisions relating to a minor’s status,
e.g. as parent
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i.e. minor <16 may be expressly allowed to
act as his or her child’s substitute decisionmaker
Mature and Immature Minors Other Difficult Issues
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Adolescent seeking abortion:
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C.(J.S.) v. Wren (Alta C.A. 1987)
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16 year old girl found to be mature minor and able to
consent to abortion, despite objection of her parents
assessment of adolescent’s understanding and
appreciation in this context is complex
if not mature, what is in her best interests?
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An often unasked question: why are the parents
generally the best people to make judgments about the
child’s best interests?
Because they know the child best and so can best judge
what he/she would want?
Because the child in some way resembles their property?
Mature and Immature Minors Other Difficult Issues
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Decisional capacity of adolescents with
mental illnesses:
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e.g. anorexia nervosa
disease itself may impair capacity
compounds the effect of youth
Mature and Immature Minors Other Difficult Issues
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Consent issues in the NICU:
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decisions surrounding appropriate treatment/
palliation of extremely premature or severely
compromised neonates
medically, ethically complex decisions
often controversy within health care team
is it fair or reasonable to expect parents to give
“informed consent/refusal” to treatment?
Minors and Confidentiality/
Access to Health Information
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In general, a decisionally capable
minor’s right to access his or her own
health information is the same as that
of an adult
Likewise he or she is also generally
entitled to confidentiality with respect
to that information
Minors and Confidentiality/
Access to Health Information
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Parental access to their children’s health
information
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parents generally entitled to disclosure of
decisionally incapable child’s health
information
necessary in order to make appropriate
health care decisions for child
Minors and Confidentiality/
Access to Health Information
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Controversial issue - can a minor,
although not capable of making
treatment decisions, prevent MD from
disclosing to parents that he or she has
sought professional advice - e.g. re sex,
drugs, etc.?
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not conclusively settled in Canadian law
Minors and Confidentiality Statutory Duties of Disclosure
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Duty to report “child in need of protective
intervention” to child welfare authorities
NF Child, Youth and Family Services Act
 s. 15 duty to report child (<16) who may be in
need of protective intervention
 s. 14 definition of “child in need of protective
intervention” - e.g. physical, sexual, emotional
abuse, abandonment
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Mandatory reporting of some STD’s
Ethical and Legal Issues in
Care of Minors - Summary
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“Mature minor” concept and role of
legislation:
 no clear line, maturity not all or nothing
 complexities in this area result from
competing principles of beneficence and
emerging autonomy of adolescents
Not always easy to ascertain what is in the
best interests of decisionally incapable child
Extent of minors’ right to confidentiality?