This week, the Alberta government announced plans to introduce policies that would restrict the ability of youth to access hormone therapies and gender reassignment surgeries.
The policies would prohibit youth 15 years and younger from beginning hormone replacement therapies or taking puberty blockers. Sixteen- and 17-year-olds would be allowed to start these therapies if a doctor, psychologist and parent approved them.
Gender reassignment surgeries for individuals 17 and under would be banned.
Canadian Affairs spoke with several legal and medical experts about how and when minors across Canada can consent to medical treatments, and what their parents’ rights are regarding their children’s treatment.
In Canada, the common law generally holds that minors are capable of consenting to all kinds of treatments, says Dr. Leanne Tran, a lawyer and doctor.
“It isn’t [treatment] specific. As long as they have the capacity to consent, and the procedure is properly explained to them, there is no specific age of consent,” said Tran, whose firm JD MD Solutions advises clients on medical and legal issues.
The youngest children, especially those who are pre-verbal, obviously don’t have the capacity to consent, says John P. Schuman, a family lawyer.
“But as you get to older school-aged kids like tweens, and the child is of normal development, they likely have the capacity to consent or refuse most forms of treatment,” Schuman said.
“It’s about the ability of someone to understand and appreciate the consequences of the proposed treatments, not their age,” said Dr. Kerry Bowman, a professor of bioethics at the University of Toronto.
As long as a doctor has determined that the minor understands what they are agreeing to, and the consequences of their decision, then they are legally able to make their own healthcare decisions, Bowman says.
That means a child could obtain a vaccine, an abortion, birth control or even hormone replacement therapy, and their parents would have no right to dictate the child’s treatment.
If a child has been found to be competent, parents who disagree with their child’s decisions “have no recourse in the law,” said Ubaka Ogbogu, professor and associate dean of research in the faculty of law at the University of Alberta.
“Just because a minor makes a decision we don’t like doesn’t mean they don’t have capacity,” he said.
In 2020, the British Columbia Court of Appeal affirmed a 15-year-old girl’s right to undergo hormone treatment to transition to a boy despite the objections of the girl’s father.
Assessing capacity
Not all parent-child dynamics are adversarial.
In most cases, parents and children have a good relationship, and are involved in healthcare decisions, says Cheryl Milne, executive director of the David Asper Centre for Constitutional Rights at the University of Toronto.
“Particularly if the healthcare issues are serious, most young people want their parents involved in helping and supporting them,” she said.
Bowman agrees. “It’s amazing how often these things just sort themselves out. Most young people show up to medical appointments with family members anyway, and there’s rarely any tension.”
More often than not, problems arise when a girl wants to make decisions about her reproductive health and her parents disagree.
“Many families that are new to Canada are often horrified that they could have a 17-year-old daughter that’s able to make her own decisions in relation to reproductive medicine,” he said.
But the doctor still has to agree that a patient has the capacity to make that decision.
In the case that a prepubescent girl was seeking access to birth control, for example, that would raise a lot of red flags, Bowman says.
“When you’ve got seasoned professionals that work in teams, they’re pretty good at assessing a person’s capacity,” Bowman said. “The fact that we can sit down and work this through with individuals is a good thing. One size does not fit all.”
The Alberta government has not yet introduced any legislation or policies to formalize its plans. Legislation can override the common law, which is law developed through court precedents.
With files from Hadassah Alencar.
QUOTE: “That means a child could seek a vaccine, an abortion, birth control, or even hormone replacement theory.”
QUOTE: “If a child has been found to be competent, parents who disagree with their child’s decisions “have no recourse in the law,” said Ubaka Ogbogu, professor and associate dean of research in the faculty of law at the University of Alberta.”
My question would be if a child decides they would want birth control, for example, and did not want to communicate with their parents, and they had no money, how would all of the above be paid for ? Is it all free ?
If a doctor and the law can say it is okay for a child to make their own decisions in these matters, they should then take on all the financial obligations of raising said child. I would hope they all have nice places for the children to live.
It seems todays child raising mantra is to give them every thing they want, don’t say no, and teach them how NOT be able to mentaly handle the brutal world out there that will eventually have to step into on their own.
Children need to learn how to stand on their own two feet and carry their own “crap” in this life, and with the proper guidance they will soon learn how to handle many situations on their own without “running” to others to solve their problems. They need to know that life is not all rainbows and unicorns.
What the Alberta government is trying to do, in my opinion, is a long time coming, and it is about time some one puts their foot down on a lot of issues in this country today.
Keep it up Danielle Smith. I, for one, have your back.