When parents consider how to apportion decision-making authority post-separation, medical care is inevitably one of the major areas discussed. It is important to remember, however, that medical decisions are not just made between parents – the child can have decision-making authority as well. Depending on the age and maturity of your child, the utility of spatting with your spouse about decision-making authority may need to be weighed differently.
Legally, there is no age of consent for medical care in Ontario. You can make your own medical decisions at any age so long as you have capacity to:
- Understand the nature of the problem or issue;
- Understand the treatment plan being suggested; and
- Understand the consequences/risks of refusing to consent to treatment.
This is often referred to in summation as the “mature minor doctrine”.
The child’s medical practitioner is generally the person who determines whether the child in question has capacity to give informed consent. In doing so, they will consider the age and maturity of the child as well as the complexity or invasiveness of the treatment. If the child is found to lack capacity, then their parent decision-making parent or legal guardian will make the choice of whether to proceed with treatment.
Obviously, older children are likely to be granted greater autonomy over their medical care. With this in mind, parents should also be aware that certain treatment programs require the written consent of the decision-making parent(s). Though a child may be legally able to consent to certain programs, such as addictions counselling or mental health therapies, the program distributors may require written consent from parents or guardians for liability reasons.
So, what does this mean for the COVID-19 vaccine? A recent decision by the Honourable Justice Charney adopted the mature minor doctrine in the case of A.C. v. L.L., 2021 ONSC 6530. The parties have three triplets who are 14 years old. The father wanted the children to be vaccinated and the mother did not. Justice Charney ordered that the children shall be entitled to be vaccinated should they so choose. The Court further Ordered that the children’s health cards be turned over to the father so that the children’s decision to be vaccinated could not be frustrated by the mother. Two of the triplets wished to get the vaccine and one did not.
Justice Charny reviewed the language of the Ministry of Health’s COVID-19 Vaccine Youth Consent form which did not require the signature of a parent or guardian. Of course, the court does not necessarily have to agree with the interpretation of the government when it comes to the application of the Health Care Consent Act (“HCCA”). Nonetheless, His Honour agreed with the Ministry’s interpretation in this case. The HCCA does not provide a minimum age at which someone has capacity to make medical decisions.
“While medical decision making is an incident of parental custody, if the minor is a “mature minor” and capable of providing informed consent under s. 4 of the HCCA, decisions regarding medical treatment may be made by the minor. As indicated, the question is whether the health care provider administering the vaccine is satisfied that the young person is capable of understanding information about the vaccine.” [at para. 39]
Whether you and your former spouse choose to have a joint decision-making regime, sole decision-making on all issues, or apportion certain subjects to each parent (e.g. one is responsible for medical care and the other for education), the plan that meets the best interest of the child will be determined by the facts in your particular circumstances. Lawyers will often encourage parties to consider whether they are able to communicate in a respectful and child-focused manner. They will also inquire as to whether the parties generally agree or disagree when it comes to these topics. The age and capability of the child to make their own decisions is simply an additional factor that needs to be weighed in assessing what decision-making arrangement is best for your changing family.