Capacity, not age, should drive consent

The cases of the 14-year-old BC teen who refused a blood transfusion as part of her cancer treatment because of her religious beliefs and the 13-year-old from Florida who fought for her right to have an abortion have stirred up a veritable ethical crossfire over these minors' rights to make their own medical decisions.

In BC, many believe that the courts were right to place the teen under provincial guardianship and force her to go through with the transfusion despite her vehement objections. Of course, the girl had a different take on things — she likened it to sexual assault. In the Florida case, right wing conservatives argued that the state judge's ruling that a 13-year-old has a constitutional right to opt for an abortion is absurd.

Although both girls were under the age of consent — 16 as defined by Canada's Health Care Consent Act and US law — how can we tell for sure that someone below this age doesn't have the "competency" to make decisions concerning their healthcare? After all, in Quebec, 14-year-olds can legally get an abortion without parental consent and across Canada they're deemed competent enough to consent to sex. Both are significant and potentially life altering decisions yet the law recognizes a 14-year-old's ability to choose in these instances. Why then can't they have a say in their health management?

Some studies do show that teens are competent enough to opt for or against different medical interventions. Research published May 2000 in the CMAJ addressed whether or not teens can make decisions on withholding life-sustaining treatment. "Given that most adolescents have the capacity necessary to make competent healthcare decisions, the ethical physician should respect this and allow the competent adolescent the right to exercise autonomy," conclude the study authors after reviewing a host of studies. They also note: "the research indicates that children begin to understand disease processes around the age of 11 and demonstrate the competence to make a decision by the age of 14." In order to be deemed competent, the law says someone has to exhibit the ability to choose between different options, understand risks, benefits and alternatives, and demonstrate rational and logical reasoning. The choice also has to be deemed "reasonable" and be made without any coercion.

The Canadian Pediatric Society's bioethics committee published a position statement on treatment decisions for infants, children and adolescents in the February 2004 issue of Paediatrics and Child Health. The statement points out that when it comes to clinical decision-making and teens, "new consideration of children's role in decision-making has evolved ... to deny decision-making to mature adolescents may be interpreted as a violation of their fundamental rights."

Yet another CMAJ study, this one from March 1997, discussed the involvement of children in medical decisions that affect their care. The author notes that in common law the notion of "mature minor" does recognize that some kids are capable of making their own health choices. Canadian law also states that providing treatment despite a patient's valid refusal can constitute battery and, in some circumstances, negligence.

All of this evidence points to a young person's (aged 14-18) ability to make appropriate decisions about their medical care — including refusal of treatment. Regardless of religious convictions, morality or personal opinions, Canadian physicians and lawmakers should do the utmost to protect these fundamental rights of their young patients.

— Julia Cyboran, managing editor