Law and Minors
Who decides
Parents:
Consent by Proxy:
- The child's parents or guardians generally have the authority or "right" to give consent by proxy.
- Parents recognized as the substitute decision makers for minors who do not have capacity, unless there has been express appointment of someone else.
- Parents accorded a "protected sphere" of parental decision making. However they are not given complete discretion as far as decision making is concerned.
Most parents have a profound interest in their child's well being and put the best interests of their child first, and as a result proxy consent generally works well.
However, consent by proxy can pose problems for HCPs.
- Legal and ethical duties to the "child patient" are to give competent medical care based on what the patient needs, not what someone else wants. The pediatrician's responsibilities to his or her patient exist independent of parental desires or proxy consent
- Child abuse and neglect laws and procedures makes it clear that parents sometimes breach their obligations toward their children.
Parents do have a legal duty to ensure that their child is provided with the necessary medical care.
- Children do not have "autonomy" and in the absence of this, beneficence becomes the most important principle.
- The general standard for substitute decision makers is that the decision must be in the child's best interests.
- Parents breach of duty to obtain or consent to necessary medical treatment for their child can result in criminal liability
Child Welfare Authorities:
- When parents fail in their duty regarding medical care, all the provinces have legislation to start child protection proceedings.
- Custody can be temporarily transferred to the child welfare authorities who will consent to the needed treatment.
- Less commonly there may be an application to a superior court requesting that it exercise its parens patriae jurisdiction and decide if the treatment proposed is in the best interests of the child.
