YOUTH & THE LAW | Medical Treatment: When can I give my own consent? - LawNow Magazine

YOUTH & THE LAW | Medical Treatment: When can I give my own consent?

We are in the middle of a global health crisis – the COVID-19 pandemic. With health on everyone’s mind, now is a perfect time to talk about when you can give your consent to medical treatments, without your parents’ approval. To be clear, by youth we mean anyone under the age of majority in the province where you live. In Alberta, the age of majority is 18 years.

In this column, we are going to look at two related concepts:

  1. Giving consent for medical treatment
  2. Confidentiality between patients and doctors
Giving Consent

Alberta uses the mature minor doctrine for youth giving consent to medical treatments.If you are a minor (under the age of majority) in Canada, you can generally make your own medical decisions if:

  • you are mature enough to make your own informed decisions; and
  • you understand the consequences of your decision.

This is called the ‘mature minor doctrine’. It is law according to the common law. (Common law means judge-made law, as opposed to laws made by the government.) Alberta uses the mature minor doctrine for youth giving consent to medical treatments.

A health professional will decide if you are capable of making your own decision. They might make you sign a consent form. There is no hard and fast rule about how old or mature you have to be. Generally, you must be more mature to make more important decisions. For example, if you are 16 years old and want to get birth control, your doctor may decide that you are capable of making the decision yourself without your parents. If you are 14 years old and need cancer treatment, your doctor may decide that you are not capable of making this decision by yourself.

Each province has its own laws about disclosing health information.If you are capable of making your own health decisions, your parents cannot overrule your decision. There have been many court cases where youth have asked the court to let them make their own medical decisions or where parents want the court to order the youth to undergo treatment. The court will look at all the evidence and decide if you are a ‘mature minor’.

There have been other court cases where the government gets involved because the youth and their parents are refusing medical treatment that could save the youth’s life. For example, there was a case in Alberta where a 16-year-old refused blood transfusions that would save her life. She was a mature minor. Both her and her parents refused the treatment based on their religious beliefs. The government applied to court to be able to make decisions for the girl. The court found the girl was in need of protective services under Alberta’s Child, Youth and Family Enhancement Act. The government, through the Director of Children’s Services, then had the authority to make decisions for the child. The courts have said that the mature minor rule does not apply in child welfare proceedings. Instead, the court looks at what is in the child’s best interests.

Two provinces have legislation that give minors the right to make their own decisions at a specific age. In New Brunswick, the Medical Consent of Minors Act gives all youth who are 16 or older the right to consent the same way as if they were 19 (the age of majority in that province). Youth under 16 can make decisions if they are mature minors – according to the mature minor doctrine above. In Quebec, the age for consenting to medical treatment that is necessary for health is 14 years. A child under 14 years cannot make health decisions on their own.

Patient-Doctor Confidentiality

Photo from Pixabay

If the health professional believes you are capable of making medical decisions for yourself, your next question probably is whether the health professional will share health information with your parents.

Generally, if you are capable of making your own health decisions, then the health professional cannot disclosure your health information to anyone, including your parents, unless you give your consent.

Alberta’s Health Information Act confirms this rule. The Act sets out to whom, how and when your health information gets disclosed. Section 104 says who can exercise the rights or powers conferred under the Act (such as the right to control disclosure of your health information). If you are under 18 then:

  • You can exercise these rights or powers if you understand the nature of the right or power and consequences of exercising the right. (This would be the case for a mature minor.)
  • Your guardian can exercise these rights or powers if you do not understand the nature of the right or power and consequences of exercising the right.

So if you are a mature minor in Alberta, you can control how your health information is disclosed. Each province has its own laws about disclosing health information.

If you are capable of making your own health decisions, your parents cannot overrule your decision.However, health professionals have an obligation to disclose your health information in certain situations, even if you ask them not to. This includes where the health professional suspects abuse, for court proceedings, to prevent fraud or if it is related to an offence being investigated.

If you have concerns or questions about your health information being disclosed improperly, you can contact the Office of the Information and Privacy Commissioner of Alberta or the equivalent in the province where you live.

Resources

For more information, check out these resources:

Authors:

Jessica Steingard
Jessica Steingard
Jessica Steingard, BCom, JD, is a staff lawyer at the Centre for Public Legal Education Alberta.
 


A Publication of CPLEA

For COVID-19 information: 
COVID-19 Alberta Law FAQ

Font Resize
Contrast