Did you know that in Ontario, there is no minimum age requirement for making health care decisions? Many parents are surprised to learn that our legislation would permit their minor child to make their own medical decisions, if their child is considered capable in the eyes of the health professional proposing the treatment. The Covid-19 pandemic thrust this issue into the forefront when mobile vaccine clinics were introduced in schools. In many cases, students were able to consent to vaccines without obtaining permission, or consent, from their parents.
No Minimum Age for Health Care Consent
In Ontario, the key question is whether the person has the ability to understand the relevant information and to appreciate the consequences of their decision. If they do, they are considered capable under the law—regardless of how old they are.
What is more, a person who is at least 16 years old is presumed to be capable of making their own personal care decisions, including health care decisions. Health professionals must therefore approach those patients aged 16 years or more as capable of providing their own informed consent, unless there are reasonable grounds to believe otherwise.
What Does it Mean to Have Capacity?
The presumption of capacity built into our laws is not displaced by the mere fact that a person is a minor, has been diagnosed with a particular medical condition or was born with a disability. The emphasis remains on the person’s ability to:
- Understand the information relevant to the proposed treatment; and
- Appreciate the reasonably foreseeable consequences of accepting or refusing that treatment.
It must also be remembered that a person may be capable of making some health care decisions, but not others. For example, a 15-year-old may be fully capable of consenting to their annual flu shot but may not be capable of providing informed consent when faced with a new, unfamiliar surgical procedure or diagnostic test.
Who Assesses Capacity?
For treatment decisions, it is the health professional proposing the treatment who is legally responsible for determining whether their patient is capable of providing informed consent. In other words, it is not the role of the parent, support worker, or friend.
Who Can Make Decisions When Someone Is Incapable?
If a person is found to be incapable of making a treatment decision, there is a hierarchy of substitute decision-makers (SDMs) found in our legislation. This hierarchy includes, in order of priority:
As you can see, everyone in Ontario has an SDM for health care decisions, even if it is the Public Guardian & Trustee. A health professional who finds their patient incapable cannot simply abandon their patient’s interests or the proposed treatment; they must seek consent to treatment from the highest ranking SDM available.
A Note on Health Care Consent & Disability
Many persons with disabilities can make their own health care decisions—but like anyone, they may need help understanding complex information or expressing their wishes. Communication barriers should never be equated with a lack of capacity.
Similarly, a lack of information should not be confused with a lack of capacity. Individuals may simply need access to information in a way they can understand. Providing those accommodations and supports aligns with our human rights obligations, which emphasize individual choice, autonomy and dignity.
Intersections with Family Law
At times, our decision-making laws may conflict with the family law framework in Ontario, particularly in situations involving separated or divorced parents of a child with a disability. These cases can be complex, and obtaining the right legal advice is essential.
For more information about health care consent and legal decision-making, contact PooranLaw!
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
