Children and Consent to Medical Care (Script 422)

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 healthcare provider explains these things and decides that the child understands them and the healthcare is in the child’s best interest, they can treat the child without consent of 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.

Do children need the consent of a parent or guardian to get medical care?

No—not if they are capable. They can consent to their own medical care, 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.

Is a child’s medical care confidential?

A doctor or healthcare 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 exceptions to this confidentiality rule. In some cases, parents may be able to get their child’s medical information. For example, if there is good reason to believe that a child might harm themselves or others, or 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.

And some doctors may consider a child not capable and insist on telling 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 will keep your information confidential. If not, you can seek a different doctor.

For more information on patient confidentiality, check script 421, called “Getting Your Medical Records”.

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 Ministry. In Victoria, call 250.387.7027. Elsewhere in BC, call 1.877.387.7027. Or see its website at www.gov.bc.ca/mcf and click on the “For Youth” tab. More information is also available on the website of the Legal Services Society, in the Family Law section at www.familylaw.lss.bc.ca.

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 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.

But healthcare providers must not provide healthcare 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 healthcare 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, healthcare 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 April 2014]

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The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

A judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as the judge's findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusion of law," "finding of fact" and "final judgment."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

(1) Agreement, or (2) the giving of permission for a thing to happen or not happen.