Law and Minors
Mature Minors
Frequently in law, the age of majority is used to determine when an individual has the capacity to enter certain transactions and relations,
Some courts make distinctions between different age groups:
- Children up to the age of 6 years
- Children aged 6 to 12 years
- Immature minor
- Children in this group should not be excluded from decision making
- It is good clinical practice to seek their "assent" to treatment.
Immature Minors:
HCPs should consider each patient's developing capacities for participating in decision-making,
Assent should include at least the following elements:
- Helping the patient achieve a developmentally appropriate awareness of the nature of his or her condition.
- Telling the patient what he or she can expect with tests and treatment(s).
- Making a clinical assessment of the patients understanding of the situation and the factors influencing how he or she is responding (including whether there is inappropriate pressure to accept testing or therapy).
- Soliciting an expression of the patient's willingness to accept the proposed care.
A patient's reluctance or refusal to assent should also carry considerable weight when the proposed intervention is not essential to his or her welfare and/or can be deferred without substantial risk.
Adolescents:
It can be difficult to asses decisional capacity in adolescents
Adolescents mature at different rates and development towards decisional capacity takes place incrementally.
At common law, courts have developed two concepts to assess if a minor has decisional capacity to consent to treatment without parental knowledge or permission.
1. Emancipated minors (older concept which has largely been replaced by mature minor rule):
- Minors who are treated as adults for all purposes.
- Definitions of the emancipated minor include those who are out in the work force and able to take care of themselves. This may include:
- self-supporting and/or not living at home
- married
- pregnant or a parent
- in the military
- declared to be emancipated by a court.
2. Mature Minors
In Common law a mature minor can:
- Understand and appreciate the nature and consequences of a proposed medical procedure/treatment and its alternatives and can give a valid legal consent
- Minors who are otherwise unemancipated but who have decision-making capacity.
- There must be an individual assessment of decision making capacity.
- Mature minors may be seeking treatment for certain medical conditions, such as sexually transmitted diseases, pregnancy, and drug or alcohol abuse.
- The situations in which minors are deemed to be totally or partially emancipated are defined by statute in the US and case law which may vary from state to state.
- While a mature minor can consent to recommended medical treatment, it is not clear if it would be possible for them to consent to treatment that was not beneficial or to even refuse therapy.
The argument that a minor may only consent to beneficial therapy is referred to as the "welfare principle." This is not in keeping with complete autonomy in decisionally capable mature minors.
Some Canadian provinces have legislation which creates a presumption of:
- capacity to consent at a certain age
- incapacity below that age
Even with this legislation in place the mature minor principle is generally still valid.
Gillick competence: English term which is used in medical law to decide whether a child (16 years or younger) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge.
Relevant Canadian case law:
Child protection legislation versus the mature minor rule have lead to some interesting and controversial legal decisions regarding the provision of medical care.
Cases usually involve children with life-threatening illnesses who refuse recommended treatment:
This case focuses on the mature minor’s right to autonomous decision-making and the state’s responsibility to keep vulnerable children from harm.
A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30
"C was admitted to hospital when she was 14 years, 10 months old, suffering from lower gastrointestinal bleeding caused by Crohn’s disease. She is a devout Jehovah’s Witness and, some months before, had signed an advance medical directive containing her written instructions not to be given blood under any circumstances. Her doctor believed that internal bleeding created an imminent, serious risk to her health and perhaps her life. She refused to consent to the receipt of blood. A brief psychiatric assessment took place at the hospital on the night after her admission. The Director of Child and Family Services apprehended her as a child in need of protection, and sought a treatment order from the court under s. 25(8) of the Manitoba Child and Family Services Act, by which the court may authorize treatment that it considers to be in the child’s best interests. Section 25(9) of the Act presumes that the best interests of a child 16 or over will be most effectively promoted by allowing the child’s views to be determinative, unless it can be shown that the child does not understand the decision or appreciate its consequences. Where the child is under 16, however, no such presumption exists. The applications judge ordered that C receive blood transfusions, concluding that when a child is under 16, there are no legislated restrictions of authority on the court’s ability to order medical treatment in the child’s “best interests”. C and her parents appealed the order arguing that the legislative scheme was unconstitutional because it unjustifiably infringed C’s rights under ss. 2(a), 7 and 15 of the Canadian Charter of Rights and Freedoms. The Court of Appeal upheld the constitutional validity of the impugned provisions and the treatment order."
The appeal was dismissed and the Manitoba legislation was upheld under which C was given a court ordered blood transfusion contrary to her religious beliefs.
Abella J held that a highly individualized approach should be taken as there is a continuous developmental transition from childhood to adult hood. Parental rights gradually yield to the child’s right to autonomous decision-making.
It was proposed that the Child and Family Services Act ( CFSA) “best interests” standard should operate on a sliding scale where child’s views becoming increasingly important as the child achieves the intelligence and awareness required to understand fully the interests engaged.
Seriousness of Decision:
Courts have held that decisional capacity may vary depending on the nature of the decision to be made.
For example, an adolescent may need to be more mature to make a decision regarding life support vs therapy for a trivial infection.
