Blog | July 16, 2018

Age of Consent and Medical Issues

Medical issues for children can be challenging and a source of conflict between separated spouses. The Collaborative Process is well suited to supporting the necessary discussion to seek consensus, with the guidance of a neutral family professional. This overview of potential issues will assist parents in considering them proactively, so the separation agreement can address them, where appropriate, to avoid future conflict.

When does a child have autonomy to decide about his/her own medical treatment?  Who decides about access to a child’s health records?

In Ontario, there is no specific age that determines when a child has the right to decide about his/her own medical treatment. A health care provider in Ontario must determine if the child has capacity to consent to treatment or refuse treatment.   Readers may be surprised to learn that while parents may be consulted, it is the health care provider who must assess capacity to consent. In this context, capacity means whether the child understands, regardless of age, the information relevant to making a decision about treatment and be able to appreciate the reasonably foreseeable consequences of a decision.  All persons are presumed to have capacity unless the health provider has reasonable grounds to believe the person is incapable.

Depending on the particular circumstances, a child of 14 or even younger might have capacity and be considered a “mature minor”.

Furthermore, if a child has capacity to decide on his/her own medical treatment, then that child also has the right to decide who has access to health records.   A mature minor could bar one or both parents or any other individual from seeing his/her health records.

Exceptions may apply.  If a health provider determines the child is in serious risk of harm, he or she may have a mandatory obligation to report health information to a child welfare agency, for instance.  Also, in some cases, a Judge may have overriding jurisdiction on a health issue, depending on the “best interests of the child”.

For children who do not yet have capacity to consent to treatment, parents often have divergent views regarding children’s health matters.  While many will rely on the opinion of a professional health care provider, medical issues can still become a source of parental conflict, especially in cases of separation.  Common examples include choice of health care providers, prescription medications vs. alternative remedies, different opinions about vaccinations, treatment for allergies, ADD/ADHD, eating disorders, depression, and anxiety, and addictions…the list goes on.  

Parents may hold competing views on the best program for a child with special needs or the value of a particular approach to therapy or whether any therapy at all is a good idea.   In rare cases, heartbreaking challenges may arise regarding the life and death condition of a child. Parents can also be conflicted about who should have access to a child’s health records.

It is vital for separating parents to discuss and provide for these matters, ideally in a    Separation Agreement, rather than going to court. In negotiations, particularly in a Collaborative Process*, parents often work with a family professional who has extensive experience working with children and families.  Parents thereby benefit from the support of a neutral family professional, along with guidance from collaborative lawyers, to reach consensus on these often challenging issues.

This post was written by Sharyn Langdon.

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