‘Why didn’t my daughter’s therapist check with me about this counselling?”

Gone are the days when healthcare practitioners needed to recall the legal age of consent for treatment –18, 12, 9, 15?  In most Canadian provinces, we now look for a person’s ‘capacity’ to make a particular decision – rather than their age.  In Quebec, though, the minimum age is 14; any age below that requires consent from a parent or guardian.

This ‘capacity’ notion relates to healthcare treatments (and, typically, personal support services and admission to care facilities, as well).  As a result confusion may still exist when muddled with all those other ‘legal ages’ – for driving, drinking, smoking, entering into contracts…and consenting to sex – that one’s very complicated.

So, does that mean we always let 9 year-olds consent to or refuse their treatment plans?  No, but nor can we always consult with parents about their child’s treatment options if they are capable to make the decision and to choose it be kept confidential.

In Ontario, the (HCCA) outlines two things that must be clear for someone to be ‘capable’ to consent to or refuse a proposed treatment plan:

  1. The      person must understand the relevant information (the treatment and      alternatives; the side effects; the chances of success; what happens if      they refuse the treatment).
  2. They must      also appreciate what it means to them in their particular situation,      at this point in time regarding this particular treatment (or plan to      apply to a care facility or bring in personal assistance).

This assessment of capacity can be complicated.  The emphasis on specific decisions means that the same person might not be capable of making one decision, but might be capable of making another decision.  Healthcare practitioners must therefore be on their toes at all times – to be sure they follow the law and follow a capable patient’s wishes.

Where a patient is not capable of making the decision, the practitioner or team must turn to their substitute decision maker (SDM).  The SDM is the person or persons defined by law to decide.  A Power of Attorney (PoA) for Personal Care appoints someone in advance to make decisions if the patient needs this in future (i.e. if they become incapable as defined in the HCCA).

Without such an advance arrangement, the HCCA will dictate who becomes the decision maker (family members in a listed priority, then others if need be).  It is really important that any patient’s health record makes clear the PoA or SDM, and not simply indicate ‘next of kin’ – they may not be the same.

In paediatric situations, that capacity question becomes even trickier.  There are plenty of cases in which capable ‘children’ make decisions with which their parents do not agree.

Examples of this might include: receiving speech therapy, starting contraceptives or joining a group drop-in session. These decisions can be made by a capable teenager and while most professionals would encourage full communication with parents or loved ones, it cannot be demanded of a capable patient of any age.

There have in recent years been stories in the media about other, more profound decisions being made by capable teens – such as refusing further cancer treatment.  Already a trying situation, the unexpected fact that a teen could make such a decision on their own can make things more distressing for all involved.

Given how complicated it can be to figure out if someone is ‘capable’ under consent laws, it is wise for all professionals to review the law from time to time as there are many details and duties that must be considered. And there may also be new best practice ideas for assessing capacity.  If ever you’re not certain, don’t hesitate to seek someone else’s help.  Regulated health professionals have regulatory colleges and professional associations they can call for advice, and some hospitals have ethicists who are familiar with the details of consent law.  When it’s a really unusual situation, it’s always best to contact a legal advisor.

For parents, the key may be in keeping open channels of communication with children about all health matters.  If your kids feel you will respect their choices, they are more likely to share these choices with you and even seek your opinion.  However, if they do choose to ‘go it alone’, it is important to remember that the healthcare professional is bound by laws that might prevent them from letting you know about some of your child’s decisions.

Consent laws are in place to preserve a person’s right to choose their own care.  They may not be perfect, but they do now recognize that the capacity to choose is not as simple as counting the candles on your birthday cake.