Understanding the legal rights of children, youth and their parents in mental health care, and where to obtain such information.
Understanding legal rights
Many people are involved in the care of a child or youth that has mental health challenges. This combination of parents (with and without custody) or guardians, siblings, other family members, and health care providers can sometimes make the process confusing: Who makes the decisions? Who has the right to information about the young person? What if the young person and the parent don’t agree?
The law exists to help in these situations — to create a balance between what the young person wants, and protecting that person in vulnerable situations.
Consent to treatment
Treatment, such as counselling, medication, or psychotherapy, cannot be provided to a young person without consent. If the young person is capable, they can decide if they want to give or refuse consent to treatment. In other words, as long as a young person understands the treatment, why it’s being recommended, and what will happen if they accept or refuse treatment, the health care provider and family must respect the young person’s decision.
For consent to be valid, it must be:
- Related to the treatment
- Given voluntarily
- Not obtained through misrepresentation or fraud
A consent to treatment is informed if, before giving it, the person received information about the nature of the treatment, the expected benefits, the material risks and side-effects, alternative courses of action, and the likely consequences of not having the treatment.
Moreover, the person proposing the treatment must answer all of the patient’s questions fully and honestly.
Age of consent
There is no general age of consent to treatment or counselling; instead, the issue depends on whether the young person is capable of consenting. A young person will be found to have capacity to consent or to refuse consent if they both:
- Understand the information relevant to the proposed treatment in issue, and
- Appreciate the reasonably foreseeable consequences of consenting or refusing consent.
For obvious reasons, a baby or young child does not have capacity to consent. As a child gets older, however, the issue becomes more complicated. It is up to the person proposing the treatment to decide if the young person or child is capable of consenting or refusing consent. The issue of capacity requires the practitioner to consider the child’s age, maturity and general level of understanding. An individual’s capacity may also vary over time. A young person may be capable of making certain decisions but not others.
It should be noted that there are a few legal statutes that do require a young person to be a specified age, and also capable to make certain decisions. For example, the Education Act requires parental consent for IQ and personality testing if a student is under 18 years of age.
Professor Robert Solomon, Distinguished University Professor, Faculty of Law, Western University, speaks about the age of consent and a young person’s capacity of consent for treatment in a video available at https://www.youtube.com/watch?v=p76dRLBppk8
When a young person is judged not capable of suitably informed consent or refusal
If anyone is found to be incapable of making a treatment decision, then a substitute decision-maker is asked to decide on that person’s behalf. If the person is under the age of 16, the substitute decision-maker must consent to or refuse the treatment based on the young person’s best interests. The wishes of the young person should also be taken into consideration.
The substitute decision-maker for a young person under 16 will likely be one or both parents. In some cases where the parent is unable or incapable of making treatment decisions, a court may appoint a legal guardian to decide on the child’s behalf.
For more information about the capacity of a young person, please visit the Justice for Children and Youth page, at http://jfcy.org/en/rights/capacity#how-can-i-be-found-incapable
For more information about substitute decision-making, please see this brochure created by St. Michael’s Hospital: http://www.stmichaelshospital.com/pdf/ethics/substitute_decision_making.pdf
A person younger than 16 years who is found to be incapable in regard to admission to a psychiatric facility has the right to meet with a rights advisor who will inform them of their legal rights and assist them in asserting those rights. For more information about the role of the rights advisor, please see https://www.sse.gov.on.ca/mohltc/ppao/en/Pages/AboutthePPAO/RightsAdvice_A.aspx
When capable youth refuse treatment
It can be concerning if a child or youth refuses services that a health care provider offers. Work with the young person to talk through the decision: Why don’t they want to accept the treatment? What are the other options they will consider? In these scenarios, it’s best not to try to convince or fight with the young person. This might make the person shut down or get frustrated.
Under the Ontario Mental Health Act, a physician can (in specified conditions) issue a Form 1, which provides authority for a person to be taken to a psychiatric facility for an assessment. The second option is to request that a Justice of the Peace issue a Form 2, which, in specified circumstances, provides the police with the authority to take the young person to be examined by a physician. Essentially, these forms are limited to circumstances in which a person is reasonably believed to be mentally ill and posing a risk of significant harm to themselves or others. For more information about Forms 1 and 2, please see http://jfcy.org/en/rights/mental-health-issues#hospitalization
Individuals who are involuntarily detained or who are found to be incapable of consenting to mental health treatments are also entitled to the assistance of a rights advisor.
For more information on involuntary hospitalization in a psychiatric facility, please visit the Justice for Children and Youth page at http://jfcy.org/en/rights/psychiatric-facilities#can-i-be-put-in-a-psychiatric-facility-if-i-dont-want-to-go
Confidentiality is a legal obligation not to disclose information obtained in confidence without the client’s consent. This definition applies to young people as well. In most situations, a capable young person has the right to determine who will be given access to their personal health information, including parents. Sometimes, a young person may want to speak to their doctor or counsellor alone, and keep information private. This can make them feel more comfortable in sharing their thoughts. At other times, a young person may tell a doctor or counsellor that it is okay to talk to their parents about what is happening in treatment.
The best way to avoid potential issues about confidentiality is to be open about policies of confidentiality with the young person at the beginning of treatment. For example, some youth will be served by multiple professionals at one agency, where the team may benefit from sharing information at internal meetings. It is also likely that the parent will ask the professionals questions about how the young person is doing. This can be addressed early by asking the young person how they would like their information shared, and with whom.
Remember, the best treatment happens when the young person feels safe and comfortable. Talk to your health care provider about privacy and confidentiality regulations in their practice for more information.
In some circumstances, health care providers are required by law to disclose what would otherwise be confidential. Examples include:
- If the health care provider is subpoenaed by court
- Reporting suspected child abuse
- The duty to warn intended victims (e.g., if plans to hurt another person are described)
The health care provider can also release confidential information to the young person’s substitute decision-maker, if the young person has been judged incapable.
Professor Robert Solomon, Distinguished University Professor, Faculty of Law, Western University, speaks about reporting and the breach of confidentiality in a video available at https://www.youtube.com/watch?v=qCLWFws8LaA
Find services close to home by searching the Ontario Health Care Options directory.
Kids Help Phone
Free, anonymous and confidential professional phone counselling and online counselling, available 24/7 to kids and youth 20 years of age and younger.
For more information about legal rights and mental health
Dykeman Dewhirst O’Brien LLP
Mental Health Law in Ontario: An Overview
Justice for Children and Youth
Legal Rights Wiki
Legal Aid Ontario
Getting Legal Help
Ontario Hospital Association
A Practical Guide to Mental Health and the Law in Ontario (2012)
Parent’s Lifelines of Eastern Ontario
PLEO offers a telephone helpline, support groups and other services to help parents navigate the system and to understand what service options might be available in the community.