September 20, 2023 | By Avneet Nehel
There are certain relationships which are “privileged” under law and the parties in these relationships are bound to not disclose information of their client, unless expressly required by law. The most common privileged relationship is that of a lawyer and a client. Another familiar example is that of a doctor and a patient. Administration of healthcare requires a constant flow of private information, and it is imperative to protect this information unless disclosure is absolutely necessary. All healthcare professionals are bound by a duty to protect patient information and not to disclose it without their consent.
These provisions apply similarly to young people as well. A young person of capable mind has the right to determine who can have access to their personal information and refuse such access – even to refuse access to their own parents.
Once a child reaches 14 years of age, the parent no longer has automatic access to their child’s health records. If parents wish to have access to their child’s medical record after the age of 14, they will need consent from their child. Every healthcare professional is bound by these rules and will be prohibited from sharing such information without consent of the minor unless the law permits or requires them to do so.
There is talk publicly, in social media and other circles in Canada about “parental rights”. “Parental rights” is not a Canadian legal principle. The concept of “parental rights” is a US legal principle which is most often cited as originating from the United States Supreme Court case of Troxel v. Granville, 530 U.S. 57 (2000). Decisions of the United States Supreme Court are not applicable in Canada nor are the other laws of the United States defining “parental rights”. The applicable Canadian legal principle to determine the rights of parents to healthcare records of minors is that of the “mature minor doctrine”. In Canadian law, there is a general presumption that a person is capable of deciding their medical care unless proven otherwise. Provinces have their own regulations on what is the definition of a “capable person”. The Supreme Court of Canada (which decisions are binding in Canada) recognized this “mature minor doctrine” in A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 and in provinces and territories lacking relevant statutes, this common law is presumed to be applied. Therefore, if a child is 14 years of age, they will be presumed to be a “mature minor” and the healthcare professional will require the child’s consent if the parent wants to attend the appointment with the child or speak with the doctor on behalf of the child. No information can be disclosed without consent.
In Saskatchewan the age of majority is 18; however, there is no stipulated age of consent for treatment. A person under 18 years of age who is assessed and deemed to be a “mature minor” can make treatment decisions on their own. Any person 16 years of age and above who has capacity to make healthcare decisions can also make a directive. A child above 14 years of age in Saskatchewan can book their own appointments and will get results sent to them directly unless the patient has given explicit permission to share results with a family member such as a parent.
In provinces like Saskatchewan, where there is no definitive age of consent, the Supreme Court of Canada has endorsed the “mature minor” doctrine, where a child of any age is capable of providing consent if they have maturity, intelligence and capacity to understand the nature and purpose of the proposed healthcare measure, and have the ability to appreciate the reasonable consequences of such a decision. In general, children are known to show such capacity at 14 years of age, but in some cases, doctors may find a child younger than 14 to have this capacity.
If a child meets the above threshold, then parental consent is not required and does not override the decision of the child. If capacity is not established, then consent from a parent will be required before healthcare can be provided to the child. Whenever consent of a minor is required, any personal medical information of the child cannot be disclosed without consent, even to a parent.
Although common law allows a capable “mature minor” to make decisions without their parents, it is not so simple in practice. In some cases, the healthcare provider may need to inform the parents even if the minor is capable, or seek the parent’s assistance in determining whether the minor is capable. In such cases, the healthcare provider must also be sure not to violate the privacy rights of the minor.
All provinces and territories have enacted child welfare legislation which overrules the common law “mature minor” doctrine, allowing the courts to override consent in certain circumstances. When a minor’s well-being is at stake or the minor needs protection, the court may make an order for treatment or that the minor not be treated, regardless of the consent of a minor or their guardian.
Before qualifying as a lawyer in Saskatchewan Avneet Nehel worked at the Saskatchewan Human Rights Commission. Avneet is a privacy lawyer and member of the Procido LLP Intellectual Property & Technology (IPT) Group and is happy to answer your questions and concerns about privacy. Don’t hesitate to contact us.
This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice. Contact Procido LLP (www.procido.com) if you require legal advice on the topic discussed in this article.