Q: My 15-year-old son was injured at a hockey tournament. He was taken to the local hospital and treated, and the staff let him decide what would be done.
Don’t you have to be an adult to agree to treatment?
A: Usually, you do have to be 18 or older, but there are exceptions. The Supreme Court of Canada dealt last June with the issue of a mature minor giving consent and directions to medical treatment.
That case originally arose in Manitoba, and involved a decision about serious medical treatment. A 15-year-old girl refused a blood transfusion because it was against her religion. Without the transfusion she would die or suffer serious harm.
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In Manitoba, provincial law said that any medical treatment for someone older than 16 but not yet 18 required that person’s consent, or the social services personnel could not proceed. This girl was younger than 16, so the government was deciding for her.
Her parents appealed, saying this law was improper. The Supreme Court upheld the provincial law, saying it was constitutional and the government officials could decide proper treatment for this 15-year-old.
The court also looked at this issue on a broader basis and decided there were a number of factors to consider when a youth is seeking medical treatment. The following principles emerged.
More weight will be given to a young person’s wishes regarding medical treatment if a court is satisfied the youth is able to make mature, independent decisions on his own.
The youth’s views will be respected if a court is persuaded that the re-quired maturity level exists. However, the court still has discretion to agree with or override that young person’s wishes.
Judges can sometimes be so impressed by a child’s maturity that the child’s wishes will become the controlling factor. This is rare, but sometimes the child rather than the adult is in the best position to make the call on medical treatment.
The Supreme Court’s judgment makes it clear that in the context of medical treatment, children younger than 16 should be allowed to demonstrate that their views about a particular medical care decision reflect a sufficient degree of independence of thought and maturity.
In other words, your 15-year-old son should have a chance to show he’s making good and mature decisions. If so, courts will respect his wishes even when they differ from your wishes.
The Supreme Court also makes it clear that the overall test is still what is in the child’s best interests, and this requires an individualized assessment of the unique situation of the particular child, including the nature of the treatment decision and the severity of its potential consequences.
In serious cases, where someone refusing treatment risks death or serious permanent injury or disability, a full, detailed and careful assessment of the young person’s level of maturity has to be done to determine whether his direction is really independent and shows a genuine understanding and appreciation of the decision and its potential risks and results.
Following these general principles, courts are required to decide whether a young person has the appropriate level of maturity and understanding to make his own medical treatment decisions, or whether an adult caregiver should intervene.
It appears in your son’s case the level of injury wasn’t serious. Therefore, the hospital staff allowed his decision to govern.
However, the more serious the medical situation, the more difficult it is for a young person to decide. The Supreme Court’s “sliding scale of maturity” is then triggered for assessment. That’s the current state of the law in Canada.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
