COVID-19 vaccines and minors: Where does Canadian law stand on consent?

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TORONTO — COVID-19 vaccines for children under 12 years of age are expected to be reviewed by Health Canada soon, putting the country’s medical consent laws for children in the spotlight.

Pfizer submitted data from a clinical trial that involved children five to 11 years old in late September and made the formal request that it be authorized for that group in the U.S.

The company’s Canadian spokesperson said last week that the organization is “aiming to file this submission by mid-October” in Canada.

Moderna is also in the midst of clinical trials for its COVID-19 vaccine in elementary school-aged children, but has not submitted any data to Health Canada as of yet. Both Pfizer and Moderna have trials involving even younger children, including those who are six months old – with results expected later in the year.

More than 80 per cent of Canadians over 12 are fully vaccinated against COVID-19, but as schools return to in-person learning, where Canadian law stands on a child’s capacity to consent to medical procedures may be put under scrutiny, family lawyers have told CTVNews.ca.

Criteria for consent surrounding children and medical treatments or procedures isn't set out by the federal government, but by provinces and territories own legislation around the issue. Elsewhere, criteria are found in common law.

A minor is a person under the age of majority, which varies across provinces and territories. In provinces or territories where there is no set legislation or stipulated age of consent for minors, common law governs.

The Supreme Court of Canada endorsed what is known as the “mature minor” doctrine in 2009, which means that a child of any age can give consent if they have the maturity and capacity to make informed decisions and understand the consequences of said decisions.

Health-care providers must obtain informed consent before any medical treatment or procedure, or be exposed to liability. If the minor meets the threshold of informed consent and understands the consequences of their decision, then parental or guardian approval is not required and does not override the decision of the child.

Ontario family law attorney Diana Isaac, a partner at Shulman and Partners LLP, says the concept of a “mature minor” is becoming “obviously more of a relevant issue” when discussing COVID-19 vaccines and children.

“It is really hard to pinpoint what age we consider a child to be able to provide their consent in family law,” Isaac said in a telephone interview with CTVNews.ca Thursday. “Sometimes you’ve got children that are 13, 14 years old that are quite mature – there is no hard-and-fast rule…so it’s on a case-by-case basis where courts look at things to determine ultimately whether there’s enough evidence where they believe the child can be mature enough to make a decision that impact their health.”

In Ontario there is no stipulated age of consent for medical treatment, and the Health Care Consent Act presumes all people, including minors, are capable of making health treatment decisions unless proven otherwise.

Isaac referenced a recent Ontario Superior Court decision as an example of a child’s capacity to consent and make informed decisions on health care being integral to a dispute over COVID-19 vaccination.

In that case, the father and mother of 14-year-old triplets were before the courts. Two of their children live with their father and attended virtual schooling, while the third lives with their mother and attended school in-person.

The two children attending virtual schooling expressed a wish to attend school in person, but only after they had been vaccinated against COVID-19. The father supported their decision. The mother wanted them to attend in-person school but did not want them vaccinated, and refused to provide their identification so they could be inoculated.

The other triplet was already attending school in-person and did not want to be vaccinated.

Justice Robert Charney determined that in-person classes were in the best interests of the children, and after reviewing data from Toronto Public Health, the Toronto District School Board and the Ontario Ministry of Health, he said in the decision that “absent compelling evidence to the contrary, it is in the best interests of an eligible child to be vaccinated.”

Charney also found that the mother’s consent to the children’s vaccination was not necessary “for the children to be vaccinated if they so choose,” under the law, as the parents had agreed that all three triplets had capacity under the Health Care Consent Act to consent to medical treatment, leading to the decision that the two triplets could be vaccinated against COVID-19 and the third could remain unvaccinated.

In Quebec, parental or guardian consent is necessary for minors under 14 years of age for any medical treatment, unless the court gets involved, which has led to some contentious disputes, according to family law attorney Anne-France Goldwater of Goldwater Dube in Montreal.

“Parents must exercise parental authority together, and one of the biggest sticky wickets we have in the court is that following a divorce or a separation the same rule applies,” Goldwater explained in a telephone interview with CTVNews.ca on Thursday. “I have a number of these situations that are very painful, where one parent wants the child to be vaccinated, and the other one doesn’t.”

Goldwater said if a child in Quebec under the age of 14 wanted to be vaccinated against COVID-19 but their parents did not want them to be, the child would have to go to court.

But she reiterated that children, regardless of age, have rights.

“Let the kids out there know, you have an absolute right to be vaccinated,” she said. “Kids today are smarter and more educated than ever. They’re more aware than ever – and I think kids out there will make the best decisions for themselves.”

Below is a brief breakdown of each province and territory's age of consent legislation for minors and medical procedures.

B.C.

In B.C. the age of majority is 19 years, and there is no stipulated age of consent for medical treatment.

The province’s Health Care (Consent) and Care Facility (Admission) Act stipulates that all adults are presumed capable unless otherwise proven.

The Infants Act applies to anyone under 19 years old, and states that a minor can provide consent if capacity is demonstrated and that health-care providers have made reasonable efforts to ensure the treatment is in the person’s best interest.

ALBERTA

Alberta’s age of majority is 18, and while there is no stipulated age of consent for treatment, the province presumes a person under 18 does not have the capacity to make medical decisions on their own, according to the Canadian Paediatric Society – however, anyone under the age of 18 may be assessed and be determined as a “mature minor” and be able to give consent to or refuse treatment under common law.

A health-care professional will generally decide if a minor is capable of giving informed consent and understanding the consequences of their decisions.

SASKATCHEWAN

Saskatchewan’s age of majority is 18 years, with no stipulated age of consent for treatment. The province allows a person under 18 to make decisions on their health care if they are assessed and deemed capable of giving informed consent under the Health Care Directives and Substitute Health Care Decision Makers Act.

MANITOBA

Manitoba’s age of majority is 18 years, and while there is no stipulated age of consent for treatment, a minor under 16 years of age is not presumed to have the capacity to make health-care decisions – but this can be rebutted with evidence under the Health Care Directives Act.

ONTARIO

In Ontario the age of majority is 18, and there isn’t an age restriction on the ability to give informed consent, as long as the person is deemed capable to do so. This generally means that minors under the age of 18 in the province have the legal right to make their own health-care decisions under the Health Care Consent Act if they meet the criteria on capacity and informed consent.

QUEBEC

Quebec’s age of majority is 18, and parental or guardian consent is necessary for minors under 14 years of age for any medical treatment.

This means a child under 14 years cannot make health decisions on their own. Parents or guardians have the full responsibility for all health-care decisions.

If a health-care provider wants to treat a child under 14 and is prevented in doing so, a judge may give permission in certain situations such as: the parent or guardian is refusing treatment that is considered necessary for the child’s health and does not have a good reason for doing so, the parents of guardians are unable to give consent (such as in an emergency) or the parent or guardian wishes the child to get treatment that is not required for the child’s health and may pose serious risks or side effects.

If a judge is making a decision about health care for a child under 14, the child will be allowed to advocate for themselves if they are deemed mature enough to do so.

NEW BRUNSWICK

In New Brunswick, the Medical Consent of Minors Act gives youth who are 16 or older the right to consent to procedures as if they were 19 (the age of majority).

If a person is under 16 years old, they can make health-care decisions if they are assessed and determined to be capable of understanding the manner and consequences of the treatment and the treatment is in their best interests.

NOVA SCOTIA

The age of majority in Nova Scotia is 19, and there is no stipulated age of consent for treatment.

Any person who is deemed to have the capacity to make personal care decisions may make personal health directives if they are able to give informed consent and understand the consequences of their actions under the Personal Directives Act.

Prince Edward Island

Prince Edward Island’s age of majority is 18. The province has similar legislation to Ontario, basing the ability to give consent on the person’s capacity to make informed decisions and understanding the consequences of their actions.

There is no stipulated age of consent for treatment, and legislation presumes that a person of any age, including a minor, has this capacity. Anyone over the age of 16 who is deemed capable may make health-care directives under the Consent to Treatment and Health Care Directives Act.

NEWFOUNDLAND AND LABRADOR

The age of majority is 19 in Newfoundland and Labrador, with no stipulated age of consent for treatment. The province has similar legislation to Manitoba, where a person under 16 is not presumed to have the capacity to make health-care decisions, but this can be rebutted with evidence under the Advanced Health Care Directives Act.

Anyone over the age of 16 is presumed competent to make informed decisions about their health care.

YUKON

The age of majority in the Yukon is 19, and there is no stipulated age of consent for treatment. The province is similar to Manitoba and Newfoundland and Labrador in assuming capacity to give informed consent to medical treatment regardless of age, including minors, unless proven otherwise under the Care Consent Act.

NORTHWEST TERRITORIES

The age of majority is 19 in the territory, and there is no stipulated age of consent for treatment, according to the Canadian Paediatric Society, meaning the common law “mature minor” doctrine applies.

NUNAVUT

The age of majority is 19 in Nunavut, and there is no stipulated age of consent for treatment. The territory's Guardianship and Trusteeship Act says that until the contrary is demonstrated, every adult 18 years and older is presumed capable of making health-care decisions.