Ask a lawyer: Mature minor


Question:  I am a nurse practitioner and my patient Jane is a 15-year old female who requires IV antibiotics for a foot infection. Jane lives away from home, attends school and is otherwise in good health. Is she capable of consenting to treatment, or must I obtain parental consent?

Answer: The issue of consent is complex and will vary across Canadian jurisdictions.

A key component of obtaining valid consent is that the person providing it must be capable of consenting. Canadian law generally1 reflects that the capacity to make a decision is not tied strictly to age but is a function of maturity and ability of the patient to understand the nature of the decision to make and consequences of accepting or declining treatment.2 This is known as the Common Law Mature Minor Doctrine.

The manner in which this assessment is to be undertaken and what criteria may be used to deem a minor a mature minor are not prescribed. One appropriate option to test the understanding of a young patient is the “teach-back” technique. This involves asking the patient to re-phrase and summarize what the practitioner has told them about the medical situation, the risks of treatment options and the intended results.

Factual circumstances may also be taken into consideration. In Jane’s case, such factors may include the following:

  • she has presented herself for treatment,
  • she wishes to undertake the appropriate treatment,
  • the infection may be easily treatable,
  • the treatment is minimally invasive, and
  • she is generally living a life independent from her parents.

Even if you deem Jane to be a mature minor, you would use your professional judgement to determine whether it would be appropriate to encourage her to choose to involve a parent. For example, Jane may wish to involve her parents in the decision-making process as part of making appropriate arrangements for follow-up care.

For your protection, it is essential to document the assessment of your patient and note the factors you have considered in reaching your opinion as to whether Jane has sufficient maturity to provide consent for IV treatment of her infection. Given the increased risks of obtaining consent from a minor, if you decide to deem Jane a mature minor, it is advisable that you have the written consent witnessed.

CNPS beneficiaries can call 1-844-4MY-CNPS (1-844-469-2677) to discuss specific questions regarding obtaining consent from minors with a CNPS legal advisor, who is a lawyer.


1. 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 majority. 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 emerging health situations.

2. For further information, please see Consent to Treatment: The Role of the Nurse, infoLAW Vol. 3, No 2, December 1994.

 

Published May 2017

 

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.

Follow us

Follow us on LinkedInFollow us on TwitterFollow us on Facebook