Ethical and Legal Issues in the Medical Care of Minors Drs. A. Latus, B.Barrowman April, 2003 Outline Who is a “minor”? Consent “mature minor” principle legislation re age of consent cases Confidentiality and Access to Information Minors 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 children 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‟ notion 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 & beneficence/non-maleficence 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 problematic 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 law 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- Specific 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 Consent 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 Consent 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 legislation 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 decisions 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 Cases 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 Cases 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” Cases 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- maker 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 information parents generally entitled to disclosure of decisionally incapable child‟s health information 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 legislation: 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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