Legal Issues in the Medical Care of Minors by qpn10303

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									Ethical and Legal Issues in the
    Medical Care of Minors

   Drs. A. Latus, B.Barrowman
            April, 2003
   Who is a “minor”?
   Consent
       “mature minor” principle
       legislation re age of consent
       cases
   Confidentiality and Access to
   Who is a “minor”?
       “age of majority” defined in provincial legislation -
        either 18 or 19
       i.e. the legal category of minors = newborns to
        late teens - a disparate group in terms of needs
        and abilities
            Infants & young children
            Primary-school children
            Adolescents
       differences re. age of minors sometimes cause
        systemic problems
            E.g., Janeway deals officially with < 16 years, but
             expertise on some conditions affecting late teenagers,
             young adults (e.g., anorexia) is best available there
    Minors and Medical Ethics 1
   Basic paradigm of medical ethics is individual,
    informed, autonomous decisions
   Fits uneasily with the gradual development of
       competence poses problems since gradual
        development clashes with mistaken tendency to
        view competence as „all or nothing‟
       competence, even for specific tasks, is a „heap‟
            i.e., when we have a heap on our hands is unclear
    Minors & Medical Ethics 2
   Recall that most commonly appealed to
    ethical principles are autonomy &
   Medical care of minors poses potential
    problems on both grounds
       gradual development of competence means
        presence of autonomy is often controversial
       in the absence of autonomy, judgments about
        what will benefit/harm a child are often
Minors and Health Law
   In some respects, the law accords
    young people increasing legal power as
    they mature
   In other areas, law adheres to more
    rigid age-based categorization of
    minors‟ capacity and legal rights
       e.g. alcohol, voting
   Both approaches are evident in health
Consent - General Principles
   “Every human being of adult years and
    sound mind has the right to determine
    what shall be done with his own body.”
          Schloendorrf v. Society of New York Hospital
           (N.Y. Ct.App., 1914)
   Treatment without consent can give rise
    to civil, criminal and professional
    disciplinary liability
Consent and Minors
   Where child cannot yet make treatment
    decisions, parents have both the power and
    the obligation to do so
   Standard for parental decisions?
       in absence of autonomy, beneficence becomes the
        most important value
       hence, general standard for substitute decision-
        makers is “best interests of the patient”
       parents given some (but not complete) discretion
        in determining their child‟s best interests
Mature Minors and
Consent to Treatment
   The law recognizes that decisional capacity
    re. health care is not rigidly tied to age
   Common law mature minor rule:
       a minor who can understand and appreciate the
        nature and consequences of a proposed medical
        procedure/treatment and its alternatives can give
        a valid legal consent
   This replaced the previous common law test
    of “emancipation”
The “Mature Minor” Principle
   Disadvantage of rule - lack of certainty
   Advantage - individual assessment:
       matches ethical reality
       adolescence involves struggle for
        autonomy and to settle on appropriate
        degree of relatedness to one‟s family
       achieving maturity is incremental process
       development affected by personal
        characteristics and environment
Mature Minor? Assessment of
Decisional Capacity
   Some skills or aspects of development
    which may be important to assess:

       ability to comprehend complex concepts
       formulation of settled value system
       imagination of own future
       “understanding” of death
       emotional and social maturity
    Settled Value System
   Situations involving minors highlight an often ignored
    feature of „ordinary‟ autonomous decisions

       our focus on autonomous decisions implicitly assumes the
        person making a decision to undergo/refuse treatment now
        is the „same person‟ who will have to live with the
        consequences of that decision later

       this tends to assume that, broadly speaking, your values
        now will resemble your values in the future

       this is always potentially false, but particularly so in the
        cases of minors
Mature Minor? Decision-
   Courts have recognized that the degree
    of understanding and appreciation of
    consequences of treatment and
    alternatives required for a finding of
    decisional capacity varies with the
    gravity of the decision

       e.g. life-sustaining treatment vs. treatment
        for minor ailment
Hospital Policies re
Age of Consent
   Note: hospitals policies re age of
    consent, signing of consent forms by
    parents, etc., do not overrule the
    general law governing consent to
    medical treatment by/for minors
Legislation and Age of
   Provincial governments have jurisdiction to
    pass legislation concerning age of consent to
    health care - some have done so
   Also there are some laws, such as child
    welfare laws, which while not primarily
    concerned with age of consent to health care,
    may impact on it
   Where a province has relevant legislation, this
    is a starting point - then consider how the
    common law principle of “mature minor” is
    affected by this legislation
Legislation and Age of
   Several provinces have legislation which
    creates a presumption of capacity to consent
    at a certain age (and presumption of
    incapacity below that age)

       NL Advance Health Care Directives Act - age 16

   Mature minor principle still valid with this
Interaction of Legislation and
Mature Minor Principle
   Some jurisdictions have legislation which may
    modify or limit application of the mature
    minor principle

   Generally based on principle of beneficence:
       e.g. BC, NB have laws stipulating that minors may
        only consent if “mature” and if health care
        provider satisfied that treatment is in their best
        interests (may impose difficult task on MD)
Mature Minor Principle and
Child Protection Legislation
   The interaction of the mature minor principle
    and child protection legislation concerning
    provision of medical care has recently given
    rise to some difficult and controversial legal
   Cases generally involve children with life-
    threatening illnesses who refuse
    recommended treatment
      e.g. Jehovah‟s witness adolescents refusing
       blood transfusions
Child Protection Legislation re.
Medical Care
   NF Child, Youth and Family Services Act
       s. 32 Where director or social worker
        believes child to be in need of protective
        intervention because of parent‟s refusal to
        obtain or permit essential medical
        treatment recommended by qualified
        health practitioner, director or social
        worker may apply for order of judge
        authorizing the treatment
   Re A.Y. (NF Supreme Court 1993)
       15 year old Jehovah‟s Witness boy with
        NHL found to be mature minor who could
        refuse blood transfusions

   Walker (NBCA 1994)
       15 year old Jehovah‟s Witness boy with
        AML able to refuse blood transfusions
   Re Dueck (Sask Q.B. 1999)
       15 year old boy with osteosarcoma,
        refusing further chemo or surgery, he and
        father wanting him to go to Mexico for
        alternative Rx
       found to be “child in need of protection”
        and not “mature minor”
   B.H. (Alta CA 2002)
       16 year old Jehovah‟s Witness girl with AML
       proposed Rx - intensive chemotherapy, supported
        by blood transfusions
       B.H. refused blood products
       initially supported by both parents, later father
        changed his position
       Director of Child Welfare intervened (note: Alberta
        Child Welfare Act applies up to age 18)
B.H. - Court Decisions
   Alberta courts disagreed about whether B.H. was a
    mature minor and relied on child protection
    legislation to order treatments to proceed
   One court found that she had been subject to undue
    influence from church and mother such that she
    could no longer exercise free choice
   When B.H.‟s condition became terminal, province
    abandoned wardship and Rx order
   Supreme Court of Canada decided not to hear case
Exceptions to Application of
Mature Minor Principle
   Some provinces have special statutory
    provisions relating to a minor‟s status,
    e.g. as parent

       i.e. minor <16 may be expressly allowed to
        act as his or her child‟s substitute decision-
    Mature and Immature Minors -
    Other Difficult Issues
   Adolescent seeking abortion:
       C.(J.S.) v. Wren (Alta C.A. 1987)
            16 year old girl found to be mature minor and able to
             consent to abortion, despite objection of her parents
       assessment of adolescent‟s understanding and
        appreciation in this context is complex
       if not mature, what is in her best interests?
            An often unasked question: why are the parents
             generally the best people to make judgments about the
             child‟s best interests?
            Because they know the child best and so can best judge
             what he/she would want?
            Because the child in some way resembles their property?
Mature and Immature Minors -
Other Difficult Issues
   Decisional capacity of adolescents with
    mental illnesses:

       e.g. anorexia nervosa
       disease itself may impair capacity
       compounds the effect of youth
Mature and Immature Minors -
Other Difficult Issues
   Consent issues in the NICU:

       decisions surrounding appropriate treatment/
        palliation of extremely premature or severely
        compromised neonates
       medically, ethically complex decisions
       often controversy within health care team
       is it fair or reasonable to expect parents to give
        “informed consent/refusal” to treatment?
Minors and Confidentiality/
Access to Health Information
   In general, a decisionally capable
    minor‟s right to access his or her own
    health information is the same as that
    of an adult

   Likewise he or she is also generally
    entitled to confidentiality with respect
    to that information
Minors and Confidentiality/
Access to Health Information
   Parental access to their children‟s health

       parents generally entitled to disclosure of
        decisionally incapable child‟s health
       necessary in order to make appropriate
        health care decisions for child
Minors and Confidentiality/
Access to Health Information
   Controversial issue - can a minor,
    although not capable of making
    treatment decisions, prevent MD from
    disclosing to parents that he or she has
    sought professional advice - e.g. re sex,
    drugs, etc.?

       not conclusively settled in Canadian law
Minors and Confidentiality -
Statutory Duties of Disclosure
   Duty to report “child in need of protective
    intervention” to child welfare authorities
    NF Child, Youth and Family Services Act
     s. 15 duty to report child (<16) who may be in
      need of protective intervention
     s. 14 definition of “child in need of protective
      intervention” - e.g. physical, sexual, emotional
      abuse, abandonment

   Mandatory reporting of some STD‟s
Ethical and Legal Issues in
Care of Minors - Summary
   “Mature minor” concept and role of
      no clear line, maturity not all or nothing

      complexities in this area result from
       competing principles of beneficence and
       emerging autonomy of adolescents
   Not always easy to ascertain what is in the
    best interests of decisionally incapable child
   Extent of minors‟ right to confidentiality?

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