Canadian Nurses Protective Society > Confidentiality and Privacy > InfoLAW: Balancing Privacy and Confidentiality in Youth Mental Health Care

Across Canada, demand for youth mental health services has increased steadily, placing nurses at the forefront of complex clinical, legal and ethical decision-making. Adolescents often seek care in the context of stigma, fear of judgment, and uncertainty about how personal information may be shared. For many young people, willingness to disclose sensitive concerns depends on trust that their privacy will be respected. Confidentialityi is therefore a therapeutic cornerstone and engages important professional and legal obligations central to safe nursing practice.

The term youthii is used broadly to describe young persons whose legal rights and decision-making authority may vary depending on age, capacity, and applicable law. Nurses working with youth must navigate the intersection of consentiii, capacityiv, privacyv rights, confidentiality, and parental involvement. Although legislation varies across provinces and territories, several principles generally remain consistent nationwide: capable youth may make decisions about their own care, personal health information must be protected, and confidentiality may only be limited where disclosurevi is permitted or required by law.

In practice, nurses may encounter complex questions about whether a youth is capable of consenting to treatment, when parents can access information, and when information may need to be shared due to safety concerns and legal obligations. Balancing these issues requires clinical judgment, clear communication, and careful documentation.

This article reviews key legal and risk considerations related to consent, privacy, confidentiality, parental access to information, and documentation in youth mental health care.

Youth Consent and Capacity

Except in limited circumstances (i.e., when a youth is unconscious), consent is generally required for treatment, including mental health care. In Canada, a young person’s ability to consent is generally based on their capacity rather than their age. This reflects the mature minor doctrine, which recognizes that some youth may be capable of making their own treatment decisions. In some jurisdictions there exists legislative restrictions on gender-affirming care for youth. Legal challenges were brought against the restrictions. While courts first suspended them temporarily, those suspensions were later removed. It is a dynamic and evolving legal landscape due to the ongoing and unresolved constitutional challenge: we await the judgment of the Supreme Court of Canada. Nurses would be wise to obtain a thorough understanding of the current state of the law and the limits that may or may not be in effect in their jurisdiction at any relevant time prior to engaging in the delivery of this type of care.

Two exceptions are New Brunswick and Quebec. New Brunswick’s Medical Consent of Minors Act states that minors 16 years or older have the right to consent or refuse treatment as if they had reached the age of majorityvii. If younger than 16 years, the patient may provide valid consent if the attending physician, nurse practitioner or nurse believe that the young patient is capable of making such a decision. In Quebec, the Civil Code provides that a youth 14 years and older can consent to care. However, parental or guardian authority is also required if the patient is seeking care that is not medically required and that carries a health risk. Exceptions exist in all jurisdictions for emergency health situations.

Generally, a youth may be able to consent to or refuse treatment if they can:

    • understand what the treatment entails;
    • understand the potential benefits and risks of the treatment;
    • appreciate the possible consequences of refusing treatment; and,
    • communicate a voluntary choice.

Capacity may vary depending on the decision and can change over time. Nurses should not assume a youth lacks capacity based only on age, diagnosis, or the involvement of parents or guardians.
A capable youth generally has the same decision-making rights as an adult, including decisions about treatment and personal health information.

Nurses should raise any concern about a young person’s capacity to provide consent with the most responsible professional who ordered the treatment, if they are not the most responsible professional. Otherwise, when capacity is unclear or there is disagreement about treatment decisions, nurses may consult the risk management team at the facility in which they are providing treatment or seek advice from the CNPS.

Youth Privacy and Confidentiality Rights

Privacy is an individual’s right to control access to their personal information, while confidentiality is the duty to safeguard that information and limit its disclosure. Many young people will only share sensitive information if they trust it will not automatically be disclosed to parents, schools, or others.

    • A capable youth will generally have the right to:
    • access their own health records;
    • request corrections to their records; and,
    • decide whether information may be shared with parents, schools, or other service providers – with possible limitations in certain jurisdictions with respect to specific types of care, such as gender-affirming care.

If a youth is not capable of making their own decisions, a substitute decision-makerviii generally exercises these privacy rights, usually a parent or guardian, for as long as the incapacity continues.

Improper access, use, or disclosure of personal health information may result in privacy breaches, regulatory complaints / investigations, employer discipline, civil actions, criminal complaints, or a combination of any of these legal consequences.

When Can Confidentiality Be Limited?

While confidentiality is a fundamental part of the nurse-patient relationship and youth mental health care, it is not absolute. In some situations, nurses may be required or permitted to disclose personal health information because of legal obligations or safety concerns.

Common limits to confidentiality include:

    • suspected child abuse or neglect requiring a report to child protection services;
    • reporting obligations related to communicable diseases or public health requirements;
    • information sharing necessary for care coordination among members of the healthcare team or emergency treatment;
    • risk of serious harm to the youth or others; and
    • court orders requiring release of information.

In such cases, the duty or authority to disclose confidential information is usually set out in legislation, which will also outline the parameters of the information that must or can be disclosed. For instance, privacy legislation across Canada contains exceptions that may permit disclosure without consent in circumstances when a health information custodian / trusteeix reasonably believes that disclosure is necessary to reduce a risk of serious harm to the individual or others. The risk of harm contemplated by legislation is not a general or vague possibility of harm – instead, it must be specific, reasonably foreseeable and not speculative. Case law generally reserves these exceptions to situations involving serious threats, such as death, suicide, serious violence, serious physical injury or comparably grave risks to mental or physical health or safety. Nursing regulators also provide standards and guidance about when confidential information may be disclosed. When presented with a subpoena, it is advisable to seek legal advice to understand clearly whether it is directed to the party having control over the information and when the information is to be disclosed to the court or tribunal.

When disclosure is required or permitted, best practices include:

    • sharing only the information necessary for the purpose of the disclosure;
    • documenting the concern or risk identified;
    • Documenting the rationale for disclosure; and,
    • recording who received the information and any consultations or actions taken.

When Can Parents Access Information?

Unless the law specifically provides a specific age of consent, parents’ access to a youth’s health information generally depends on the youth’s capacity to make their own care decisions rather than their age.

A youth capable of consenting to care, can generally control who may access their personal health information, including whether parents are involved in their care. A nurse generally cannot disclose confidential information to a parent simply because the parent requested or because the nurse believes disclosure would be helpful or in the youth’s best interest. Unauthorized disclosure could constitute a privacy breach and may lead to legal, ethical, and professional consequences. Importantly and as stated previously in some jurisdictions there exists legislative restrictions on gender-affirming care for youth which may impact on parental access to information. Nurses would be wise to obtain a thorough understanding of the current state of the law and the limits that may or may not be in effect in their jurisdiction at any relevant time prior to engaging in the delivery of this type of care.

If a youth is not capable of making their own decisions, a parent or guardian may act as the substitute decision-maker and access information needed to support treatment decisions.

In some situations, it may be appropriate to encourage a capable youth to involve their parents or share information with them. Nurses should use clinical judgment when deciding whether and how to encourage parental involvement. However, if a capable youth does not consent to disclosure, nurses must generally respect that decision unless there is a legal reason to disclose information, such as a risk of serious harm or a mandatory reportingx obligation.

When addressing a parent’s request for information, best practices include:

    • clarifying the youth’s capacity status;
    • explaining privacy and confidentiality obligations in clear language;
    • seeking the youth’s consent to share information when appropriate; and,
    • document discussions and decisions.

Additional guidance may be found in applicable organizational policies and procedures regarding parental access to a minor patient’s health records.

Documentation Considerations

Clear, objective documentationxi remains an important part of safe youth mental health care and an essential risk management strategy. Good documentation supports continuity of care, clinical decision-making, and legal accountability.

Documentation may include:

    • assessments of capacity and consent;
    • discussions about confidentiality and information-sharing;
    • risk and safety concerns;
    • information disclosed and the reason for disclosure; and,
    • consultations, referrals, and follow-up actions.

Documentation is more reliable when it is factual, specific, and completed in a timely manner. It is preferable to avoid vague language, personal opinions, or unnecessary details unrelated to care.

Summary

Confidentiality and privacy are part of safe, ethical, and legally sound youth mental health care. Across Canada, core legal principles generally remain consistent: capable youth may make decisions about their care, personal health information must be protected, and confidentiality may only be limited when disclosure is permitted or required by law.

Nurses working with youth may face challenging situations involving consent, capacity, parental involvement, safety concerns, and disclosure obligations. Balancing these issues requires clinical judgment, clear communication, and careful documentation.

By understanding legal and professional obligations related to privacy and confidentiality, nurses can help support therapeutic trust while providing care that is safe, respectful, and legally defensible.

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

iConfidentiality
For more information refer to:
InfoLAW: Confidentiality of Health Information – Canadian Nurses Protective Society

iiYouth
In Canadian legal contexts, youth commonly refers to individuals aged 12-17 years (Youth Criminal Justice Act, SC 2002. c. 1, s. 2(1)). However, there is no single statutory definition across sectors. Youth is used as an inclusive term encompassing minors across childhood and adolescence, while recognizing that the health law frameworks in many provinces (including Ontario) prioritize decisional capacity over chronological age.

The term “child” refers to “a person younger than 18; (“enfant”)” (Child, Youth and Family Services Act, 2017, SO 2017, c. 14, Sch. 1, s. 2(1))

The term “young persons” refers to “a person who is or, in the absence of evidence to the contrary, appears to be 12 or older but younger than 18” (Child, Youth and Family Services Act, 2017, SO 2017, c. 14, Sch. 1, s. 2(1))

iiiConsent
Consent in healthcare is a patient’s voluntary agreement to receive care or treatment. It must be given by someone with the capacity to decide and can be withdrawn at any time. Consent may be implied or express and must be informed for it to be valid.

Implied consent is shown through a patient’s actions or behaviours, such as holding out an arm for a blood pressure check.

Express consent is clearly stated, either verbally or in writing. Verbal consent is spoken agreement, while written consent is usually required for more serious or invasive procedures.

Informed consent refers to the process where a patient receives and understands clear information about a treatment or procedure, including its purpose, risks, benefits, and alternatives (as well as the option of no treatment), and then voluntarily agrees or refuses. Informed consent may be express or implied. For more information refer to:
InfoLAW: Consent to Treatment: The role of the nurse – Canadian Nurses Protective Society
InfoLAW: Consent for the Incapable Adult – Canadian Nurses Protective Society
Ask a Lawyer: Mature Minor – Canadian Nurses Protective Society

ivCapacity
A person’s ability to understand information relevant to a decision and appreciate the possible consequences of that decision.

Legal capacity is the ability to understand and appreciate the nature and consequences of decision-making.

An individual’s capacity or incapacity is always considered with respect to the proposed treatment for which consent is sought. An individual can be capable with respect to some treatments and incapable with respect to others. A patient may be capable of consenting to a specific treatment even if they are hospitalized involuntarily.

Capacity can fluctuate and an individual may be capable with respect to a proposed treatment at one time and incapable at another. It may be necessary to reassess as appropriate.

There is generally a legal presumption that a patient is capable of consenting to health care treatment unless there is reason to believe otherwise. This includes patients with mental illnesses, including those who are admitted to a psychiatric facility.

A patient is considered to have the capacity to consent if they understand the:

    • nature of the proposed investigation or treatment
    • anticipated effects of the proposed treatment and alternatives
    • consequences of refusing treatment

The health care professional proposing the treatment is responsible for obtaining the patient’s consent. If a patient is clearly incapable of consenting, the nurse must adhere to the law on substitute decision-making in their jurisdiction. If the nurse is unsure of the patient’s capacity to consent, an assessment and determination is needed, with thorough documentation of the process and its outcome. Consultation with other professionals is recommended.

For more information refer to:
InfoLAW: Consent for the Incapable Adult – Canadian Nurses Protective Society

vPrivacy
For more information refer to:
InfoLAW: Privacy – Canadian Nurses Protective Society

viDisclosure
In relation to personal health information, disclosure refers to making information available or to release it to another health information custodian or to another person. In Canada, each province and territory has its own legislation that outlines when a custodian / trustee may disclose personal health information.

For more information refer to:
InfoLAW: Confidentiality of Health Information – Canadian Nurses Protective Society
InfoLAW: Reporting & Disclosure of Adverse Events – Canadian Nurses Protective Society
Ask a Lawyer: Accessing One’s Own Personal Health Information – Canadian Nurses Protective Society

viiAge of Majority
The general legal threshold definition for the Age of Majority is “every person attains the age of majority and ceases to be a minor on attaining the age of eighteen years.” (Age of Majority and Accountability Act, RSO 1990, c. A.7, s. 1)

viiiSubstitute decision-maker
A person authorized to make decisions on behalf of someone who is not capable of making their own decisions.

ixCustodian of Health Information (also known as ‘trustee’ in some provinces)
An individual or organization responsible for the collection, use, disclosure, and protection of personal health information.

In Canada, each province and territory has its own legislation that defines custodian / trustee and outlines their responsibilities, including requirements for the retention and destruction of personal health information.

For more information refer to:
Are you a custodian or trustee of health records? – Canadian Nurses Protective Society

xMandatory Reporting
A legal obligation to report certain concerns, such as suspected child abuse or neglect.
Mandatory reporting obligations are not the only limits to patient confidentiality. In each jurisdiction across Canada, there is legislation in place which permits disclosure of confidential information in certain specific circumstances. For example, in Ontario – section 40 of the Personal Health Information Protection Act, 2004 permits the disclosure of a client’s personal health information if there are reasonable grounds to believe that the disclosure is necessary to reduce or eliminate a significant risk of serious bodily harm to a person or group of persons. All CNPS beneficiaries are encouraged to contact CNPS for confidential legal advice if they encounter a situation where they are contemplating breaching confidentiality.

For more information refer to:
InfoLAW: Reporting & Disclosure of Adverse Events – Canadian Nurses Protective Society
InfoLAW: Confidentiality of Health Information – Canadian Nurses Protective Society

xiDocumentation
For more information refer to:
InfoLAW: Quality Documentation: Your Best Defence – Canadian Nurses Protective Society

September 2026

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.