When children refuse medical treatment: role of government and assessments; a standardized test to assess a child's maturity and understanding would help judges in their Solomonic roles to render more uniform decisions.

• Author: Burden-Osmond, Carla E.
• Position: Canada

THE ROLE and responsibility of government and a child's maturity level and understanding of medical treatment were two issues raised in three Canadian cases decided in the 1990s--Walker (Litigation Guardian of) v. Region 2 Hospital Corp., (1) Re Dueck, (2) and Re Y (A.). (3) These concerns are relevant to the most significant issue of how to protect children while respecting their wishes when they refuse medical treatment. Evident in these cases is the lack of consistency in determining whether a child reasonably understands the grave consequences of not receiving medical treatment for a terminal illness.

A standardized test such as a mandatory psychological analysis or evaluation would provide a consistent method for courts to determine a child's maturity level and understanding of the consequences of rejecting medical treatment. Such a refinement would clarify the jurisdiction of parens patriae and help government to establish more firmly its role in dealing with children who refuse medical treatment.

INFORMED CONSENT

1. Significance

   In general, consent refers to an agreement given freely by one individual or entity to another. In a medical setting, consent is qualified by the word "informed." Before medical practitioners can treat a patient, they must provide that individual with information about the nature of the medical procedure and any risks inherent in it. A doctor's failure to disclose this information to a patient can vitiate the patient's consent to receive treatment and opens the door to a world of problems for the healthcare provider. Without valid permission from a patient, any type of direct contact by a doctor to a patient could result in a tort action of battery or in a criminal charge of assault. (4) Thus, informed consent can have an enormous impact on the entire medical community.

   Patients who provide informed consent for medical treatment must be competent; they must be able to understand the nature and consequences of treatment and be capable of reasoning a decision. A mentally competent patient also can refuse medical treatment even if the treatment is necessary for survival. A doctor may not agree with a patient's decision to reject medical attention, but as long as the person is capable of making that decision, the doctor must respect it.

2. Children

   The specific age for a person to enjoy certain rights as an adult varies throughout the Canadian provinces depending on the provisions of particular legislation. New Brunswick's legislation permits a minor rather than an adult guardian to consent to medical treatment. The Medical Consent of Minors Act provides that any child under 16 years of age who is "capable of understanding the nature and consequences of a medical treatment" can provide consent for the administration of medical treatment. (5) British Columbia has a similar provision stating that a child who "understands the nature and consequences and the reasonably foreseeable benefits and risks of healthcare" can consent to treatment. (6)

   These statutes concur with the Canadian common law doctrine that any child who is mature and understands the nature of medical procedure can consent to such treatment. (7)

   MATURITY AND UNDERSTANDING

   These statutes, common law doctrine and various literature concerning a child's ability to consent to medical treatment all focus on the same question: Is the child mature and able to understand the nature of the treatment and the consequences of refusing it? This question was significant in the cited cases, which were decided by courts in Saskatchewan, British Columbia, New Brunswick, and Newfoundland.

1. Dueck -- Saskatchewan

   Re Dueck concerned a 13-year-old boy named Tyrell who endured chemotherapy to treat cancer. Toward the end of the treatment, Tyrell stated that he neither wanted to undergo any further chemotherapy treatment, nor have surgery on his leg. The teenager's doctor expressed grave concern that without surgery and chemotherapy Tyrell would succumb to the cancer. Tyrell believed that "God" would heal him, and the court decided he might have been influenced by inaccurate information provided to him by his father.

   Judge Rothery at the Saskatchewan Court of Queen's Bench rendered its decision that as a child with a less than average maturity level, Tyrell did not completely understand the consequences of not receiving medical treatment and was placed under the supervision of the Minister of Social Services.

   Justice Rothery focused on Tyrell's level of maturity and understanding, referring to the common-law doctrine and extracts of literature. In Medical Negligence, Lord Nathan emphasized the significance of an infant's capability to fully understand the nature and consequences of a particular medical treatment. Similarly, in Wilson on Children and the Law, two items to be applied on a case-by-case basis that were considered important were the age and maturity of a child and the child's ability to understand fully and to appreciate the consequences of consenting to a specific treatment.

   Both sources of literature support the Canadian common law doctrine of a "mature minor". Without the consent of a parent, a child who fully appreciates the nature and consequences of the medical treatment can legally consent to the treatment. This doctrine of mature minor was applied in Re Dueck, as well as in Ney v. Canada (Attorney General).

2. Ney v. Canada (Attorney General) -- British Columbia

   The plaintiffs sought a declaration that the British Columbia Infants Act infringed on the charter rights of children and their parents. The concern was the seemingly unnecessary consent from minors' parents or guardians' to a healthcare provider for the administration of medical treatment. In dismissing, Judge Huddart held that a proper interpretation of Infant's Act simply "codified the common law rules."

   The court iterated that the common law of Canada finds a child who is adequately mature and has a reasonable understanding of the consequences and nature of a medical treatment can give consent to that treatment. Where a child is not sufficiently mature and intelligent, the parent or guardian can consent for the child to receive medical treatment. Once a child can consent to treatment and actually consents to treatment, the parents cannot forbid the healthcare provider to administer it.

   The court also referred to the opinion of Lord Scarman that a child's ability to consent to or refuse medical treatment was to be determined by his or her intelligence and understanding of the procedure. (8)

3. Walker v. Region 2 Hospital -- New Brunswick

   Joshua Walker was a 15-year-old boy who, like Tyrell Dueck, also suffered from cancer. Joshua's treatment required that he receive blood transfusions, a procedure that was in conflict with the beliefs of his Jehovah Witness faith. Joshua appealed to the New Brunswick Court of Appeal, where it was decided that he was a mature minor who understood the consequences of receiving and not receiving treatment.

   Therefore, under the province's Medical Consent of Minors Act, Joshua could consent to (or refuse) medical treatment. This reasoning may be compared to the common law doctrine of a mature minor that...