THE CAPABLE MINOR’S HEALTHCARE: WHO DECIDES?

Abstract

Who decides the medical treatment of a capable young person defined by statute to be a child—the young person’s parents? the state or courts exercising parens patriae authority? or the young person? This article examines the intersection of medical practice and studies on developmental capacity, common law, parens patriae jurisdiction, provincial and territorial legislation, and rights and freedoms protected by the Canadian Charter of Rights and Freedoms. Guidance is found in an analysis of comparative law from the United Kingdom and the United States of America. Common law and Charter guarantees, together with the realities of a young person’s cognitive and psychological development, and medical practice, submits the author, confirm that medical treatment decisions should be made by the capable young person.