Disputes on a child's capacity to decide on vaccine likely to rise once approved for those under 12
Two recent cases dealing with the vaccination of minors against COVID-19 have put into focus the concept of “informed consent” and when children can make up their minds when it comes to medical treatment and health.
“It’s going to get sticky, deciding when kids have capacity to make these kinds of decisions,” says Toronto-based family lawyer Laurie Pawlitza.
An Ontario case released earlier this month put into sharp focus the issues of consent. It dealt with 14-year-old triplets, two of whom lived with the dad and one with the mother. The two children living with their father – P and J – attend school virtually, while the third, E, attends school in person, though he is unvaccinated.
The father wanted P and J to attend school, but the two boys indicated they wanted to be vaccinated before going to school in person, a position the father supported. The triplet who lived with his mother and was unvaccinated has said he does not want to be vaccinated.
The mother, however, refused to provide the dad with P and J’s health cards or identification, which would allow them to be vaccinated. She said she wanted them to go to school, but unvaccinated, saying the government has not yet made vaccinations mandatory for children to go to school.
After reviewing information about vaccines for children 12 and older from Toronto Public Health, the Toronto District School Board, and the Ontario Ministry of Health about vaccines for children 12 and older, Justice Robert Charney ruled that “absent compelling evidence to the contrary, it is in the best interests of an eligible child to be vaccinated.”
However, he also considered whether the mother needed to consent to any of her sons being vaccinated. In his decision, he wrote, “as a matter of law, the mother’s consent is not necessary,” citing the province’s Health Care Consent Act, which does not give any minimum age requirements for determining the capacity of a child to make medical treatment decisions.
Justice Charney took the position that while P and J, who wanted the vaccine, did not need the mother’s consent, the third son, E, could remain unvaccinated as he desired.
Pawlitza notes that the father agreed that E had the capacity to make his own decision about receiving the COVID-19 vaccine. Had he not, Pawlitza says Justice Charney would have had to deal with the issue of “informed consent.” This would have involved weighing the consequences of E not taking the vaccine, how much of E’s unwillingness to be vaccinated is due to his mother’s influence, and what information E relied on to agree with his mother’s views.
The considerations that would have to be made are reflected in a recent Saskatchewan Court of Queen’s Bench decision. In that case, a father sought an order allowing him to have his daughter, 12 at the time of the hearing, to be given a COVID-19 vaccine against the mother’s wishes. The mother had stated that the daughter did not want to be vaccinated, a view shared by her paternal grandparents.
As part of the evidence the mother presented, a registered psychotherapist/nurse gave an opinion that “it might be developmentally appropriate” to acknowledge the girl’s “mature decision-making skills and listen to her perspective about and goals for her body.”
Despite this evidence, Saskatchewan Court of Queen’s Bench Justice Michael Megaw held that “… the child’s views, while considered, do not decide the issue. There is concern over how much she has been influenced (by her mother and extended family). There is moreover concern over COVID-19 and the need to be vaccinated.”
Justice Megaw ruled that while he doesn’t doubt the daughter is a “mature, bright, and capable young woman,” he is concerned about the influence others have on the girl, particularly her mother and paternal grandparents.
The daughter is “so significantly influenced by her mother and has developed such an irrational fear instilled by her mother” that she has “lost her capacity” to make a rational decision concerning vaccination. He ruled that the girl, now 13, must be vaccinated for COVID-19.
“This case is not about whether there is, or has been, a pandemic … This case is also not about governments bullying or forcing citizens to take experimental drugs … The court’s singular focus on all matters involving children is to do that which is in the child’s best interest. Whether that best interest accords with either the mother’s or the father’s wishes is secondary to this primary goal.”
Vancouver family law lawyer Lorne Maclean says that not giving a child the final decision, unless they are deemed to have capacity, is ultimately deemed to be in the child's best interest. “If a child said, ‘I don’t want to do my homework,’ or ‘I want to eat candy for dinner,’ you might hear them out, but it’s probably not a good thing not to do your homework or eat candy all the time, so as a parent you’d likely overrule them.
He adds: “It’s the same thing with medical treatment, but when you get into the area of estranged parents and passions on either side about vaccines, the situation becomes even more complicated and all factors have to be considered, including the best interests of the child regardless of what they say.”
Many provinces have legislation that allows a child with the “capacity” to make their own decisions about medical treatment with or without their parents’ permission, but the age requirements differ. In Manitoba, for example, those aged 16 and older can make medical decisions for themselves without the consent of a legal guardian. In Saskatchewan, those aged 13 and older can legally consent to, refuse or revoke immunizations on their behalf if they demonstrate the capability to understand the information regarding the vaccine.
However, in Ontario, Pawlitza says a child's age is irrelevant to whether they have the capacity to consent to medical treatment. “If they can understand the relevant information to make a decision, and they can appreciate the consequences of their decision, they are deemed to have capacity.”
The Ontario case involving the triplets was able to step around the issue of whether E, the one who did not want to be vaccinated, could decide himself because both parents agreed he did. It would be more complicated for the court to determine if both parents wanted him vaccinated against his wishes.
In British Columbia, the Mature Minor Consent portion of the Infants Act also gives no limit to the age that somebody can consent for medical treatment, including immunization.
In 2009, retired Supreme Court of Canada Justice Rosalie Abella described the concept of “mature minor” this way: “The doctrine addresses the concern that … the right to make decisions reflecting medical treatment varies in accordance with the young person’s level of maturity, with the degree to which maturity is scrutinized intensifying in accordance with the severity of the potential consequence of the treatment or of its refusal.”
Pawlitza says that once COVID-19 vaccines become available to children under 12, as is expected later this year, the issue of a child’s capacity to consent to or refuse vaccination will be tested even further. In jurisdictions with no age requirements, may have to rule on what is in the best interests of, say, a mature 10-year-old who refuses the vaccine against a parents’ wishes, or wanting it despite opposition from one or both parents.
Sherry Fitzsimmons with McDougall Gauley in Saskatoon says that her firm’s family law practice team has already assisted parents in disputing whether their children will get vaccinated. She also notes that “once a vaccine becomes widely available to the under twelve population, it is very possible that lawyers will see a surge in vaccination disputes.”
She adds that parental disputes about the health and medical well-being of children are not new. However, what is different about the COVID-19 vaccination dispute is that, in nearly every case, the disagreement between parents on whether to vaccinate a child against COVID-19 is “broadened by one of the parents to include discussion and debate about the COVID-19 pandemic in general.”
She notes that in the Saskatchewan case, “quite appropriately, Justice Megaw addresses the only issue of relevance - that being the child’s best interests, based on the accredited medical evidence before the court.”