 Hello, my name is Joan Gilmour, and I am a professor of law at Osgoode Hall Law School of York University in Toronto. This module explains the legal issues that can arise when tweeting minors. The age of majority varies among the provinces and territories, but it is generally 18 or 19. So the term minor encompasses a wide range, all the way from infants to young people able to live independently of parents, take on paid employment, drive, and have children themselves. As you might expect with such a disparate group, the law does recognize this reality and accords young people increasing legal independence and authority as they mature. I am going to focus on issues that arise most commonly, capacity to consent to treatment, mature minors, substitute decision making, what is meant by the best interests of the child, intervention by child protection authorities, and confidentiality considerations. One preliminary note, health care is primarily under the jurisdiction of provincial and territorial governments in Canada, so there will be some variation from one to another. Despite that, the differences on the whole are small, and the legal regimes governing the provision of health care to minors are largely similar across the country. I'll turn first to consent and capacity. Health care providers have a legal duty to obtain consent before treating, except in emergencies where there is a narrow exception. This obligation flows from the law's strong protection of individuals' rights to autonomy and bodily integrity. Failure to obtain consent can give rise to civil, criminal, and professional disciplinary liability. To give a legally valid consent, the patient must be competent, that is sometimes referred to as decisionally capable, and the consent itself must be informed and voluntary. I'll explain in a bit what each of these terms means in the context of treating minors. Some jurisdictions have set a statutory age of consent to treatment and may attach additional conditions in order for the consent to be effective. For instance, in New Brunswick, legislation sets the age of consent at 16, but also provides that a younger child's consent can be effective. If, in the opinion of the treating clinician, the treatment is in the child's best interests and the child is capable of understanding its nature and consequences. Even when legislation specifies the age at which a minor can consent to treatment, however, a determination must still be made about that minor's decisional capacity, just as it is with adults. Legislation in other jurisdictions, such as Ontario and Prince Edward Island, does not set a minimum age for consent at all. There, minors who are decisionally capable can make their own decisions about consenting to or refusing treatment. There are also some specialized legal frameworks that affect minors, such as the legislation governing organ and tissue donation. These impose minimum ages for consent. Additionally, there may be legislative exceptions based on the minor's status, most frequently as a parent or spouse. For instance, under Ontario's legislation governing consent to healthcare, an individual must be 16 to consent to treatment on behalf of another, in other words, to act as a substitute decision maker, but a minor younger than 16 can act as his or her own child's substitute decision maker. According to the concept of capacity, in order to give a legally valid consent, the person concerned must be competent, sometimes referred to as decisionally capable, and I'm going to use those terms interchangeably in this talk. In law, that means that he or she is able to both understand and appreciate the nature and consequences of the recommended treatment, alternative treatments, and non-treatment. The law also recognizes that the ability to consent may be decision specific and may come and go over time. The determination of capacity is made by the healthcare provider proposing the treatment, at least in the first instance, although it can be challenged in court or in some jurisdictions such as Ontario, by application to a specialized tribunal. In jurisdictions without a minimum age of consent, there is a presumption in law that people are competent to make decisions about healthcare, unless the clinician has reasonable grounds to believe otherwise. To give an example, a pediatric patient's age, together with the clinician's interactions with that patient, can certainly give rise to the necessary reasonable grounds to conclude the patient lacks capacity. Think of a two-year-old confronted with the needle used to administer a vaccine and the likelihood of getting consent from that child. If a minor is not decisionally capable, then a substitute decision maker, usually a parent or guardian, has the legal authority to consent to treatment or to refuse that treatment on the minor's behalf. Especially when there is conflict between parents and their child about proposed treatment, or among a child, the family, and healthcare providers, it is important to establish who has the legal authority to consent, the minor or his or her parents. Moving on to the other requirements for legally valid consent, the consent obtained must be informed. This means that the decision maker must be given the material information about the treatment proposed, its risks and benefits, and alternative courses of action, including non-treatment. This is often summed up as the information that a reasonable person in similar circumstances would want to know in deciding whether to consent to or refuse treatment. Clinicians must also answer the decision maker's specific questions or request for additional information. Consent must not only be informed, but also voluntary. An example will help illustrate what this means in the context of minors. In RTDD, a Saskatchewan case about a 13-year-old boy with osteosarcoma, who refused to consent to an additional round of chemotherapy and amputation of his leg, which was the treatment recommended by his physicians, the court concluded that the boy's decision was neither informed nor voluntary. The inaccurate and incomplete information he received from his father meant that he did not understand and appreciate that without the recommended treatment, he would likely die within a short time. Also, the court found that, given the structure and dynamics of the boy's family, he would not have been able to contemplate going against his father's wishes and agreeing to chemotherapy in any event. So the boy could not be considered a mature minor able to make an independent decision and did not have sufficient information to do so in any event. So in that case, the court authorized the Child Welfare Authority to make the decision. However, some young people, referred to as mature minors, can meet the test to establish decisional capacity, although the younger the patient is, the less likely he or she will be able to do so. Minors who meet these tests can make their own decisions about health care, absent any additional statutory or common law constraints. Now, decisional capacity can be especially difficult to assess in adolescence. People don't mature on a uniform schedule at constant rates or without setbacks. Maturity in an adolescent can be a moving target. Determinations must be individualized. The nature of the decision is important as well. Courts recognize that refusing the treatment needed to preserve life or prevent a serious risk to health requires greater appreciation of the consequences than does refusing more minor treatment. And as with adults, the underlying condition, for instance, an illness such as anorexia, may affect a patient's decisional capacity or ability to make a voluntary decision. Yet, just because a minor disagrees with treating physicians, does not automatically mean that he or she lacks the necessary capacity and independence to decide about treatment. Factors clinicians and ultimately courts should take into account include the nature, purposes, risks, and benefits of the recommended treatment, the basis of and reasons for the minor's decision, and the decision's likely consequences. Even in the context of child welfare proceedings where courts can authorize treatment in a child's best interests, the Supreme Court of Canada has held that if a young person is sufficiently mature and independent, his or her decisions about treatment must be taken into account regardless of her age. The court went on to add that if a minor can establish that he or she is able to exercise mature, independent judgment about the treatment in question, then his or her decisions should be respected. Even when a minor is not decisionally capable, it is respectful to include him or her in discussions and decisions about treatment in accordance with his or her abilities. Both a minor's ascent and sustained ascent or resistance to treatment, although not controlling when a minor is decisionally incapable, should nonetheless be given serious consideration by health care providers and patients. When minors are not able to make decisions about treatment, then a common law and by statute, their parents or guardians are authorized to act as their substitute decision makers, their SDMs, absent demonstrated neglect or unsuitability. And so it is the SDMs who consent to or refuse treatment on the minor's behalf. Parents authority has been affirmed by the Supreme Court of Canada, which noted that the parental interest in bringing up, nurturing and caring for a child, including medical care and moral upbringing, is an individual interest of fundamental importance to our society. In recent years, pediatric patient-centered and patient and family-centered care have assumed prominence in health care delivery. These models emphasize the importance of planning for care around the whole family and not just the pediatric patient. Now, most often the patient's best interests will be advanced by attention to the care requirements of the family as a whole. However, the interests of the family or parents will not always coincide with those of the child. And in law, the best interests that parents are to act on when deciding about treatment are those of the child, not anyone else. The bottom line is that it is the minor patient's best interests that must guide both health care providers and parents in planning, treatment and care. As an example, in a case called E versus EVE, an application seeking judicial authorization for the non-therapeutic sterilization of a developmentally disabled young woman, one argument advanced by the applicant EVE's mother was that because of her own advancing age, it would be difficult for her to assume responsibility for raising a baby should EVE become pregnant and have a child. In rejecting this argument, the Supreme Court of Canada was very clear that decisions about best interests must be made for the benefit and protection of the decisionally incapable individual, not others. However, as you might imagine, decisions about what constitutes best interests will differ. That judgment is affected by value systems, religious and other beliefs, perceptions of risk and benefit, and other considerations. Recognizing this reality, the law allows parents considerable leeway in their decisions, provided that, as the Supreme Court of Canada has stated, they do not exceed the threshold dictated by public policy in its broad conception. This is a standard that depends heavily on factual circumstances, medical expertise and community values. In some jurisdictions, legislation provides further guidance about how to determine an incapable patient's best interests by specifying factors that substitute decision makers must consider when deciding whether to consent to or refuse treatment. In Ontario, for instance, these include relative burdens and benefits of the treatment and alternatives, whether treatment would improve the person's condition or slow deterioration, congruence with the patient's values and beliefs, the patient's wishes even if incapable, and whether less intrusive treatment would be as beneficial. Even where there is no detailed legislative guidance, courts undertake a similar assessment when determining best interests. While the decided legal cases make it clear that expert medical opinion weighs heavily in judicial assessments of children's best interests, courts also recognize the importance of other values and will act on these as well. While parents are allowed considerable discretion and decisions about their children's health care, there are limits on their authority as I noted earlier. The Supreme Court of Canada has made it clear that parental rights are given effect in law to enable parents to meet the responsibilities they have for their children. And one of their responsibilities, indeed their legal duty, is to ensure their children are provided with needed health care. When illness seriously threatens a child's health and parents will not obtain or permit available effective treatment, then the child's health care providers have a legal obligation to notify child welfare authorities. Legislation in all provinces and territories authorizes measures by the state to apprehend a child who is in need of protection, a broad term that can include failure to obtain needed medical care. And they also will have to ensure that that needed care is provided. For instance, in another case, ReB, Jehovah's Witness parents objected to blood transfusions their infant daughter's positions considered were necessary to avert a serious risk to her health. They objected it breached their right to religious freedom. The Supreme Court of Canada confirmed that given the threat to their daughter's health, she should receive the recommended treatment and that her parents refusal had fallen below that socially acceptable threshold justifying state intervention. Most recently, recent jurisprudence indicates that Aboriginal parents and Aboriginal rights may affect courts understanding of best interests and who determines it, but the jurisprudence is not finalized in that area at this point. It's important to remember that parents are not held to a standard of protection, sorry, a standard of perfection as they make decisions about their children's healthcare. There will be times when the decisions they make will not be in the best interests of their child, but nonetheless do not contraven the threshold dictated by public policy. For instance, while courts accept that routine childhood immunization is generally in a child's best interests, it has been held that parental refusal did not provide sufficient grounds for state intervention, absent evidence of a greater need to protect either the child or the community from vaccine-preventable infectious diseases. So when the risks of foregoing treatment are less serious or less immediate, parents' treatment refusal is more likely to be allowed to stand by healthcare providers, child protection authorities, and courts. Turning to a related topic, patients have a legal right to confidentiality with respect to their health information. Health professionals cannot disclose such information to others without the consent of the person concerned or their authorized representative or as allowed by law. An example of what is allowed by law would be communication among the health professionals who are treating the patient. Miners who can make their own decisions about treatment are entitled to confidentiality with respect to their health information as well. Parents may find their child's right to confidentiality difficult to accept, especially if access to such information would assist them in supporting their child's treatment regimen. Nonetheless, the decision about sharing such information is the decisionally capable minors to make. However, when the minor is not decisionally capable and parents are the substitute decision makers, they are entitled to access their child's information from healthcare providers when it's needed to make proper decisions about treatment.