Tag: family law

No Minimum Age for Medical Consent?

No Minimum Age for Medical Consent?

Donald Wilson is a family lawyer practicing in New Westminster, and the managing partner of Atticus Legal. He obtained his Bachelor of Laws at UBC in 2010. Donald is the past Party Leader of the BC Libertarian Party and has run as a candidate in Provincial and Federal elections on platforms of personal and political liberty. You can find him tweeting for liberty under @DNSWilson.


Last week, I wrote a bird’s-eye view of the law on childhood vaccination after parents separate. You can read it here. This week, in comments to True North, Nova Scotia’s Department of Health and Wellness stated that there was no minimum age at which a child could consent to Covid vaccination, regardless of the parents’ views. My first thought was: then there is no minimum age for a child to refuse the vaccine, either. The ability to consent is meaningless without the ability to withdraw consent. But that thought is more germane to the situation of separated parents: the context of the Health Department’s comments is public vaccination.

I have no basis to disagree with the plain statement of the law in the statement by the Health Department. In British Columbia, the Infants Act doesn’t state a minimum age for a mature minor. The FLA and the Divorce Act don’t address the issue directly. I found no cases in which a minimum age was discussed. Considering the contextual nature of judgements, commentary about a minimum age would likely be obiter, which is to say not necessary for the judgment and therefore not binding law. My view is that any attempt to bind future adjudicators by setting a minimum age would be ultra vires – outside the jurisdiction – of a presiding judge.

On the other hand, I am concerned that the Health Department’s statement could be over-read, that it could be used as a pretext to pressure children to assume a responsibility for which they are not yet ready, or to inappropriately exclude parents from the decision. 

The lack of an explicit minimum wage in the Act does not mean there are no outside limits to the emergence of maturity in a child. Under s. 17 of the Act, a mature minor’s consent is not valid until a health care provider: 

  • has explained to the infant and has been satisfied that the infant understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care, and
  • has made reasonable efforts to determine and has concluded that the health care is in the infant’s best interests.

These steps are not frivolous and shouldn’t be treated as mere formalities. The whole process  is also reviewable by the court. Further, these statutory requirements are separate to common law principles on mature minors as well as the court’s own duty to protect children. I will add, parenthetically, that the use of the word “infant” in the Act is a technical definition meaning a person under 19 – not the ordinary meaning of a new-born child. 

I am uneasy about the government drafting such a policy on child consent and parental involvement in the context of school vaccination clinics. The recent broad push by our governments for mass vaccination has often veered into the decidedly unethical. I would rather see responsibility for crafting such policies fall to the health care providers or their professional bodies.

In any event, parents facing school vaccine clinics should know that their children can get vaccinated without their permission or, in some cases, even without their knowledge. I have my own views about this, but such personal views have little effect on the actual state of the law. 

The best remedy to concerns related to the above would seem to be: a strong relationship with your children, careful selection of their school, vetting of their peer group, and direct supervision over the child’s consumption of media – but I claim no professional expertise in this regard. 

As for separated parents, my opinion remains that the thrust of the law is: the authority to consent to vaccination generally lies between the parents, children and the child’s health care provider. Under the Infants Act, a “health care provider” determines if a child is sufficiently mature to consent to medical treatments. The term is defined broadly in the Act:

“Health care provider” includes a person licensed, certified or registered in British Columbia to provide health care. 

“Health care” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of health care.

Open and direct communication with your ex is best, whenever possible. Making generous assumptions about their motives in such communication – even sometimes despite good evidence – tends to be most effective. The children’s views should be canvassed and considered, and neither parent should use undue pressure – such as abuse or threats – in trying to change a mature minor’s mind. 

As for the court’s role, the court can allocate parental responsibilities between the parents. A parent failing to consider a child’s views or responding inappropriately to a child’s decision are valid factors for the court to consider when allocating parental responsibilities. Separately, the court can be called on to review the “mature minor” determination made by a health care provider under the Infants Act. Apart from these roles, the court should avoid interfering with the decision to vaccinate.

DW


Childhood Vaccination in Family Court

Childhood Vaccination in Family Court

Donald Wilson is a family lawyer practicing in New Westminster, and the managing partner of Atticus Legal. He obtained his Bachelor of Laws at UBC in 2010. Donald is the past Party Leader of the BC Libertarian Party and has run as a candidate in Provincial and Federal elections on platforms of personal and political liberty.


Parents routinely have disagreements about important medical decisions for their children. Such disagreements rarely get easier for separated parents. Usually, they get much worse. By the time parents have separated the relationship is often characterized by bitter anger and sour memories. Trust is hard to come by. In the hardest of these cases, parents turn to family court to resolve their dispute.

What does the court say about who makes medical decisions for the children after parents separate? When does a child get to decide for him or herself? Does the child’s opinion matter at all?

In British Columbia, the court considers parenting disputes under one of two statutes: the Family Law Act (“FLA”) or the Divorce Act. Given recent amendments to the Divorce Act and related case law, there is considerable overlap in the application of these statutes.

Consent for medical treatments 

Giving consent for medical treatments is one of several “parental responsibilities” under the FLA. After separation, each parent can exercise parental responsibilities unless an order or agreement says otherwise. Many parents approach parenting after separation without understanding this fact, to their great frustration. It helps to realize there is little practical difference to before separation: in the ordinary course of a marriage-like relationship, either parent might routinely give medical consent for their child.

Giving consent for medical treatments is different from other parental responsibilities in one important respect: a parent’s authority is subject to a mature child’s right to consent to medical treatments on his or her own behalf.

When the court is asked to intervene in the area of parental responsibilities there is strong authority that the court should not step into a guardian’s role or dictate the minutiae of parenting.1 Rather, the court should allocate parental responsibilities – including the authority to give medical consent – between the parents. The court can also give directions on parenting matters.

It is not uncommon for the court to allocate parental responsibilities to one parent or the other, or alternatively to give final decision-making authority to one parent. In the case where one parent exclusively exercises parental responsibilities, or has final-decision making, the other parent has no authority to consent to (or refuse) medical treatment for their child.

Approaching Litigation

When litigating about parental responsibilities it is not helpful to make personal attacks or political points. Nor is it the time to attempt an authoritative critique (or justification) of vaccination. Instead, parents should focus on how parental responsibilities ought to be allocated between the parents. The history of the child’s care and the parenting schedule are two of the most significant factors that will determine this question. It often makes sense for the parent with the majority of parenting time to exercise parental responsibilities, particularly if that parent has historically taken care of the child’s medical needs. 

As a child matures, the locus of decision-making for medical treatments shifts to the child. In such a case, the parent’s ability to exercise parental responsibilities become less relevant. Instead, the child’s maturity level and his or her views about the treatment are more relevant. Ultimately a health care provider, not the court, has the authority to determine if a child is mature enough to consent to (or refuse) medical treatment.2 In such a case, the court ought to merely direct the parties to take the child for medical advice from a health care provider.

Summary

Family disputes about childhood vaccination are best resolved through discussions between the parents, the affected child, and the child’s doctor. Parents should approach these discussions understanding that each parent already has the authority to give consent (or communicate refusal). In other words, they should talk as equals in this regard. Both parents should also understand that their authority to give consent is subject to a mature child’s contrary views. When discussion becomes impractical or fruitless, the court can order that one or the other parent exercises parental responsibilities. Rather than deciding if the child should be vaccinated or not, the court should focus on how parental responsibilities are allocated between parents. Finally, even when the court orders that one parent solely exercise parental responsibilities, that authority is subject to a mature child’s right to consent.

DW


1 N.R.G. v. G.R.G., 2017 BCCA 407 (CanLII)

2 AB v. CD, 2020 BCCA 11; the Infants Act