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1.5.2 Medical Decision-Making and Mature Minors

Michelle Jackman, MD, MSc, FRCPC; and, Andrew McRae MD, PhD, FRCPC

Updated December 1, 2013

Learning Objectives

  1. To understand the legal and ethical considerations in decision-making by minors.
  2. To learn how to determine whether a minor has capacity to make health care decisions.

Case

Susan is a 14-year-old girl with ulcerative colitis. She has been receiving medical therapy since her diagnosis two years ago. She is admitted to the in-patient general pediatric ward for an exacerbation of her disease, requiring systemic steroids. On the fifth day of her admission, she develops acute abdominal pain, fever and hypotension. Her laboratory tests reveal leukocytosis and hypoalbuminemia. Computed tomography imaging shows evidence of toxic megacolon, which is an indication for urgent surgical intervention. The surgeon on call is consulted and explains to Susan and her parents the need for urgent laparotomy.

Susan refuses to undergo surgery, citing fears of scarring. The surgeon is concerned that she does not understand that declining surgery may lead to sepsis and death. The parents want her to proceed with the surgery. Susan tells her parents about her concerns about scarring and the importance of her body image to her overall well-being and confidence. She states that she would rather risk death than have a scar.

Questions

  1. Does Canadian law define an age of decision-making capacity?
  2. Are there any professional society guidelines on the issue of decision-making by minors?
  3. How does one determine the capacity for decision-making in adolescents? What are the similarities between adults and adolescents?
  4. Are there any differences in this capacity between adolescents and adults?
  5. How would you manage this case if the consensus was that Susan was incapable?
  6. How would you manage this case if Susan is determined to be capable?

Discussion

Q1. Does Canadian law define an age of decision-making capacity?

Canadian law generally recognizes that decision-making capacity is not tied strictly to age. New Brunswick has passed legislation specifying the age at which a minor can consent to treatment.1 The New Brunswick Medical Consent of Minors Act assures that minors 16 years or older have the same right to refuse or to consent to medical treatment as adults do. The New Brunswick Act also provides that a minor under the age of 16 can make decisions about medical treatment if two medical practitioners are of the opinion that the minor is capable of understanding the nature and consequences of the medical treatment and that the treatment and procedures are in the best interests of the minor and his or her continued health and well-being.1 The Quebec Civil Code states that a 14-year-old can consent to care. However, the consent of a parental authority is also necessary if the care sought is not medically required and entails a health risk.1 Ontario, Alberta, British Columbia, Manitoba and Saskatchewan do not identify an age at which minors may exercise independent consent for health care.2-7 These provinces follow the “mature minor doctrine,” which recognizes that the level of the patient's understanding of the nature and consequences of the treatment have determinants beyond age. This allows physicians to make a determination of capacity to consent for a child just as they would for an adult.8

Q2. Are there any professional society guidelines on the issue of decision-making by minors?

The Canadian Paediatric Society, the American Academy of Pediatrics and the Society for Adolescent Medicine have issued policy statements on medical decision-making by minors.9-11 The Canadian Paediatric Society requires that the minor demonstrate comprehension of the magnitude of the intervention, the probabilities of harm and benefit, and the consequences of consent or refusal. The American Academy of Pediatrics policy statement emphasizes that a minor's choice must be voluntary and rational.

Q3. How does one determine the capacity for decision-making in adolescents? What are the similarities between adults and adolescents?

As outlined above by Canadian and American professional societies, the elements of decision-making capacity for adolescents mirror those for adults. Decision-making capacity requires that:

According to Jean Piaget's cognitive development theory, individuals aged 14 years and older have essentially the same capacities to process information as adults. There is also evidence that adolescents have the capacity to understand the concept of life and death.12

Like adults, adolescents may be influenced by their religious beliefs. In the case of a Jehovah's Witness adolescent, the refusal of blood transfusions may reflect the adolescent's own religious beliefs. The courts have upheld adolescents' refusal of transfusions on the basis of religious beliefs in New Brunswick, Newfoundland and Ontario.1

Q4. Are there any differences in this capacity between adolescents and adults?

Adolescents' treatment choices may be significantly influenced by age-specific and transient influences. In a study of the choices of adolescents with epilepsy, a significant proportion of adolescents rejected treatment with phenytoin because of concerns regarding gum swelling or excessive body hair.13 Other concerns that are relevant to adolescents include lack of acceptance from a peer group and the impact of medical treatment such as hemodialysis on personal independence.12 It can be argued that religious beliefs may reflect a stable set of values, whereas the age-specific concerns of image and peer group acceptance may reflect a transient set of values for the adolescent. Patients are held to a higher standard of decision-making capacity based on the seriousness of the medical condition and the consequences of accepting or forgoing treatment.

Q5. How would you manage this case if the consensus was that Susan was incapable?

If Susan were not capable of making decisions regarding surgery, her parents would act as substitute decision-makers. Further steps would be required if her parents were not making decisions in her best interest. Physicians may solicit the assistance of other professional services, including hospital ethicists, hospital legal counsel and children's aid societies. The courts may be approached by the hospital to hear the views of all the party members and adjudicate the conflict.

Q6. How would you manage this case if Susan was determined to be capable?

The principle of respect for persons requires that the wishes of capable, autonomous individuals be honoured. If it were determined that Susan had decision-making capacity with respect to the choice of whether or not to undergo surgery, then her decision would have to be respected.

References

  1. Gilmour JM. Children, adolescents, and health care. In: Downie J, Caulfield T, Flood C, editors. Canadian health law and policy. 2nd edition. Toronto: Butterworths; 2002. pp. 204–49.
  2. College of Physicians and Surgeons of Ontario. Consent to medical treatment, Policy #4-05 [reviewed and updated September 2005]. College of Physicians and Surgeons of Ontario; 2006. Available from: http://www.cpso.on.ca/Policies/consent.htm
  3. College of Physicians and Surgeons of Alberta. Consent for minor patients. College of Physicians and Surgeons of Alberta; 2006. Available from: http://www.cpsa.ab.ca/publicationsresources/attachments_other/Consent_for_Minor_Patients.pdf
  4. College of Physicians and Surgeons of British Columbia. Consent of “minors”: Infants Act. In: Physician resource manual. College of Physicians and Surgeons of British Columbia; n.d. Available from: https://www.cpsbc.ca/cps/physician_resources/publications/resource_manual/interantmedical
  5. College of Physicians and Surgeons of British Columbia. Care of the adolescent in hospital and in ambulatory care. In: Physician resource manual. College of Physicians and Surgeons of British Columbia; n.d. Available from: https://www.cpsbc.ca/cps/physician_resources/publications/resource_manual/careofadolescentathospital
  6. Manitoba Law Reform Commission. Consent to medical treatment. In: Substitute consent to health care. Report No. 110. Winnipeg: Office of the Queen’s Printer; 2004. pp. 5–9. Available from (on College of
    Physicians and Surgeons of Manitoba website): http://www.gov.mb.ca/justice/mlrc/reports/110.pdf
  7. Salte B. Recent legislative change. College Newsletter [of the College of Physicians and Surgeons of Saskatchewan] 2002; 18(51): 7. Available from: http://www.quadrant.net/cpss/pdf/CPSS_December_Newsletter.pdf
  8. Government of Ontario. Health Care Consent Act, 1996 [last amendment 2007], c. 2. Available from: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_96h02_e.htm
  9. Bioethics Committee, Canadian Paediatric Society. Treatment decisions regarding infants, children and adolescents [Reference No. B04-01; reaffirmed February 2008]. Paediatrics & Child Health 2004; 9(2): 99–103. Available from: http://www.cps.ca/english/statements/B/b04-01.htm
  10. Committee on Pediatric Emergency Medicine. Consent for emergency medical services for children and adolescents. Pediatrics 2003; 111(3): 703–6.
  11. Sigman G, Silber TJ, English A, Epner JE. Confidential health care for adolescents: position paper of the Society for Adolescent Medicine. Journal of Adolescent Health 1997; 21: 408–15.
  12. Doig C, Burgess E. Withholding life-sustaining treatment: are adolescents competent to make these decisions? CMAJ: Canadian Medical Association Journal 2000; 162(11): 1585–8.
  13. Weithorn LA, Campbell SB. The competency of children and adolescents to make informed decisions. Child Development 1982; 53: 1589–98.

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