Legal and ethical issues concerning children's rights of consent.

Abstract

Listen

Translate article

AbstractThis paper examines children's rights under the Charter, the law of consent, and the ethics associated with the consent to treatment issue. Consistent with the Charter, the common law recognizes the right of competent minors to consent on their own behalf. Decisions regarding competence to consent are made on the basis of cognitive capacity, and not age. In contrast, consent legislation is largely silent on the question of capacity and instead specifies arbitrary ages at which minors may consent. Considerable variation exists across provinces both in the legal age of consent and in the extent to which common law principles are reflected in consent legislation. As a result of the complexity and apparent contradictions of the law, the circumstances under which minors may consent remain unclear in the minds of many practitioners. Equally problematic from the perspective of the psychologist, is the fact that much of consent legislation is directed towards treatment in hospitals and/or treatment by physicians and dentists. It is argued that in the absence of relevant consent legislation, psychologists have both a legal and an ethical responsibility to determine their minor clients' capacity to consent. Revisions to the existing Code of Ethics that recognize the potential capacity of minors to consent are discussed.One of the most difficult legal and ethical issues faced by health professionals is that of the minor who seeks treatment without parental consent. Equally difficult, from both a legal and an ethical perspective, are the issues of treating a child against the child's wishes, or voluntarily committing a child who does not want to be committed. At present Canada has no uniform law of consent; the onus is thus placed upon the provider of services to determine whether a child has the capacity to consent. In the present paper, the rights of children will be considered, children's legal and developmental competence to consent to treatment will be explored, and the ethical issues associated with treating minors will be addressed.Historically, the courts respected the rights of parents to exercise control over their children's activities, welfare and destiny (Weithorn, 1983). It was assumed that parents were the natural advocates for their children and would, in most instances, act in their best interest (Landau, 1986). Presumed by law to lack the cognitive ability and capacity of adults, children were denied the rights accorded to adults, and instead were afforded special protection by the State. In situations in which parents abused their parental rights, the State was prepared to intervene to supervise and, if necessary, remove a child from his/her parents. Thus, both parents and the State exercised control over children; at no point in this process was the child's right to separate consultation or representation considered.Early in the seventies the focus of the children's rights movement shifted from an emphasis on protection and nurturance rights to a consideration of self - determination rights (Hart, 1991; Margolin, 1978). Children's rights activists argued that children should be afforded the same constitutional guarantees as adults including, in certain instances, the right to act independently of parental control and/or authority (Hart, 1991; Mulvey, Reppucci & Weithorn, 1984). Considerable constitutionally based litigation followed, with the U.S. Supreme Court ultimately extending constitutional protections to children as individuals, and subsequently recognizing children's rights to treatment and privacy (Hart, 1991; Mulvey et al., 1984).Children and the Canadian Charter of Rights and FreedomsCanadian courts have only recently begun to address the issue of children's rights under the Canadian Charter of Rights and Freedoms (1982). Drafted explicitly to protect individuals from unjustified discrimination or unwarranted state intrusion in their lives, the Charter is considered the supreme law of Canada (s. …