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When is a child --?

At birth, children are totally dependent on their parents and care givers. As they grow older, they start to make decisions for themselves -- what to eat, what to wear, where to go, what to do. By the time they leave school, they make most of their own decisions. Their parents may hope to have some influence, but rarely do they have any effective control.

What about decisions with legal consequences? In Alberta, there are many statues that regulate a minor's capacity to participate in adult activities. Some are not age specific -- for example, the Child Welfare Act says if a child is capable of forming an opinion, she is entitled to express that opinion on matters affecting her, and the decision-maker should consider that opinion. Other statues and regulations do set ages for specific activities, including the following:

Age 6

* compulsory school attendance

Age 12:

* consent is required to change name

* written consent is required to adopt

* can apply for own lawyer at Legal Aid

* consent is required in a number of child welfare proceedings

* consent by the minor is a defence for some accused persons charged with a sexual offence against the minor

* can be employed with parent's written consent (restricted activities and hours)

Age 14:

* minor's consent to sexual activity is a defence to a broader age-range of accused persons

Age 15:

* can be employed without parental consent (some restrictions still apply)

Age 16:

* obtain a driver's licence

* apply for an order dispensing with parental consent to marry (a pregnant female may apply for this before age 16)

* enter into an independent living support agreement with the government

* leave school

Age 18 (age of majority in Alberta):

* vote

* buy alcohol and tobacco

* marry

* work

* sue others and be sued in own name

What about a minor consenting to medical treatment? Alberta law does not specify an age at which parental consent is no longer required. Across Canada, there are three basic approaches to determine the appropriate age.

The oldest and traditional common law approach asked whether the young person had accepted responsibility for her or his own life by living independently, working, or in some other way withdrawing from parental care. If he or she met this emancipated minor test, she could consent to medical treatment on her own behalf.

Some jurisdictions have moved away from the common law approach and have passed legislation to set the age for consent. For example, both Saskatchewan and Prince Edward Island have regulations requiring parental consent for non-emergency surgery for unmarried minors. But it is easy to see how unworkable this approach is -- can an unmarried 17 year old mother give consent for her child's nonemergency surgery when she cannot even consent to such surgery on herself? Setting an arbitrary age may sound convenient, but it does little to meet the real needs of young persons seeking medical treatment.

The third approach is a refinement of the emancipated minor test, and is called the mature minor rule. It involves an individualised assessment of the minor's maturity and capacity to consent to medical treatment. Where the traditional approach focused on the minor's lifestyle, the mature minor rule considers the minor's physical, emotional, and intellectual development irrespective of where she lives. Consequently, a minor living at home and still in school may be sufficiently mature to seek medical treatment without parental consent.

But parents may find it difficult to let a mature minor living under their roof make her own medical decisions. Issues of sexually-transmitted diseases, birth control, and abortion loom large in parent-teenager disputes. In 1987, the Alberta Court of Appeal considered just such a family dispute. Upon discovering her pregnancy, the 16 year old daughter moved out of her parents' home. She sought and obtained the approval of a therapeutic abortion committee and her doctor was willing to perform the abortion. Her parents applied for a court order preventing the abortion on the basis that a minor cannot receive medical treatment without parental consent. The Court found the daughter was a normal, intelligent young person who had considered the ethical dimensions of abortion. The Court allowed the procedure without parental consent.

In 1995, the Manitoba Law Reform Commission issued a report called Minors' Consent to Health Care. It identified the potentially competing interests:

* the minor, who wants to control her own destiny and have access to competent confidential medical care;

* the parents, who have moral, legal, and ethical duties to act in their child's best interests;

* the health care providers, who want to be able to serve their patients without worrying about legal liability;

* the general public's interest in access to health care of all types.

The Commission concluded that of the three approaches, the mature minor rule was preferable. It is, however, far from perfect. It does require a case-by-case assessment, and the advantage of flexibility necessarily leads to the disadvantage of uncertainty. It does not answer the thorny question about whether the treatment (or withholding of treatment) must be beneficial for the minor (the welfare principle). For example, can a minor on religious grounds refuse a blood transfusion that would otherwise save his life? Ultimately, the Commission recommended that all these issues continue to be addressed by the courts. Over time and as cases get to the Supreme Court, a framework will develop within which to assess a minor's maturity to consent to health care.

Rosemarie Boll is a lawyer with the firm of Bubel Boll & Sorenson in Edmonton, Alberta.
COPYRIGHT 1997 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1997 Gale, Cengage Learning. All rights reserved.

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Author:Boll, Rosemarie
Date:Jun 1, 1997
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