The tricky issue of consent in adolescent mental health care

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What happens when a child wants help with a mental-health issue, but a parent, fearful of stigma or unwilling to go the medication route, refuses? What happens if the child won't go along with treatment?

The question of consent is complex — and can be particularly contentious in high-conflict situations such as a divorce — but it is considered one of the most important pillars of the Canadian health-care system. Many experts believe that there needs to be a better understanding of consent's guiding principles. Here, a primer on the concept and how it plays out in doctor's offices:

What is the age of medical consent in Canada?

For the most part, there is no age of medical consent in Canada, with the exceptions being Quebec (age 14) and New Brunswick (16) Unlike with age-of-majority laws for drinking, driving and smoking, consent for medical treatment is more fluid and situational. It depends on the mental and emotional capacity of the patient, not his or her age. When teens under 18 are deemed to have that capacity, they can consent to treatment without parental permission. In effect, they are forming a contract for treatment themselves, and it can't be overwritten by their parents. More complex illnesses and treatments require a higher degree of competency to be able to consent.

In Quebec, at the age of 14, a person can seek medical care — be it birth control or psychiatric counselling — without parental consent, and health professionals are forbidden from sharing health information without the teen's written consent.

Why is there no age of consent?

Lawmakers found that, especially among adolescents, age can be an arbitrary and sometimes inaccurate measure of maturity. "Some kids are much less mature by the age of 18, 19, 20, and some kids are a lot more mature when they're 14 and 13,"says Rose Geist, chief of mental-health systems at Toronto's Trillium Health Centre, who has written a guide for doctors on assessing young patients' capacity to consent to treatment.

"Every patient is different. Every situation is somewhat different. You cannot have hard and fast rules," says Gordon Wallace, managing director of safe medical care at the Canadian Medical Protective Association, which provides education, legal assistance and malpractice insurance to physicians. "It's all contextual with patients' conditions, what is being proposed and the maturity of the patient."

What is "capacity"?

To be capable of giving consent, young patients must understand their condition, the information given to them, the prognosis and the risks and benefits of accepting or refusing treatment.

"Do they understand that when they go to see a therapist that they're going to be participating in counselling? That things may get a little bit worse before they get better? That this probably isn't going to be a one-shot deal? That if they choose to participate, there may be some benefits that come their way as well as some consequences?" says Patrick Baillie, a Calgary-based lawyer and psychologist.

Just because a child says "yes" doesn't mean that he or she is capable of consenting, Dr. Geist stresses. Capable young patients "can consistently communicate a choice. They don't change their mind every minute," she says.

Furthermore, capable patients aren't comatose, neither do they have delirium, she explains.

Under most circumstances, capable teens will choose to involve their parents in decision-making; physicians are encouraged to support collaboration between family members.

What's the difference between good, bad and informed choices?

An important distinction is that capacity isn't about the wisdom of the decision. "It's not about whether the person is making the right decision. It's simply about whether they understand the information and appreciate the consequences," Dr. Baillie says. "Some people make poor choices, but if they understand and appreciate [them], then we let them make those decisions. Whether or not they are making the 'right' decision is irrelevant."

As Dr. Geist puts it: "We don't have to consider the decision reasonable. We only have to prove that it's reasoned."

How does a doctor ascertain that an adolescent is mature enough to determine his or her own care?

Communication is key, experts say, stressing that consent is an ongoing process between patient and doctor.

Dr. Wallace asks patients to explain back to him what they've discussed: "Can you tell me in your own words what we just stated?"

When language barriers pose a problem, he recommends that doctors use an official translator, even if it means waiting until one is available.

What is the upside of not having a legal age of consent for mental-health treatment?

"This is about patient autonomy," Dr. Wallace says. Experts say that when you remove the issue of parental consent for capable teens, you open up the services to a group of people who feel that they might not be supported by their parents to get help. "Individuals can opt into treatment without needing to initially go through the filter of their parents," Dr. Baillie says.

The process allows kids to become engaged and involved in their own care, Dr. Geist says. "The outcome is better because they're not helpless but active agents in their treatments."

What are the challenges?

While the set-up gives patients maximum autonomy, it can also prove challenging for doctors who don't specialize in mental health to properly assess capacity in young, diverse patients. "The challenge arises when people don't know or are not trained in the assessment of capacity or in cognitive development," Dr. Geist says.

Physicians who rarely treat teenagers may take the approach that parents need to be involved, Dr. Baillie adds.

Who decides consent when parents are divorced?

Cases arise where one divorced parent is incensed to learn that the other has taken their child to a psychologist, without his or her knowledge.

The Canadian Medical Protective Association recommends that doctors determine the custodial status of divorced parents before treating their kids – they need to make reasonable inquiry into who has guardianship of the child, never assuming that the parent who brings in the child has sole custody, especially in high-conflict cases. Both parents have to sign off on consent when there is joint custody.

"Bottom line is that everyone involved has to act in the best interest of the child," Dr. Wallace says.

Are there situations in which a parent tries to deny a capable child mental-health treatment?

Some parents insist on "dealing with it at home." They don't place their trust in the mental-health profession, a relatively new medical discipline without the clarity of diagnoses that other doctors enjoy.

"We don't have straightforward blood tests or other physical tests in mental health," Dr. Baillie explains. "And so there are people who have some skepticism about whether or not mental health is scientific or based on the political or social whims of the time."

For some parents, it's cultural; they find psychologists and psychiatrists "too liberal in their social views," Dr. Baillie says.

Other times, it's simply denial, with parents assuming it's a phase all kids go through. "Generally I think it's well-intentioned rather than malicious," he says.

Still, if the child is mature enough to give consent, reluctant parents can't actually override his or her wishes.

And if a child's health or development is at risk of being harmed by the decision-making of the parent, doctors are required to seek out child protection authorities.

What happens if a teen refuses to consent to treatment, be it medication or talk therapy?

Ethics codes say health-care practitioners require their patients' consent; even if the patient is under 18 and the parents give consent, the doctor still requires the patient's assent. "Logistically it's extremely difficult to do therapy with somebody who doesn't want to do therapy," Dr. Baillie says.

In such cases, it's up to the therapist to try to engage the patient. "For a young person, 'no' can be a natural expression of autonomy," Dr. Geist says. "It can be oppositional behaviour, it can be overwhelming anxiety, or it can be a capable person actually saying 'no' to a treatment. You have to understand what 'no' actually means and you have to be skilled to access that."

A "no" can also be a symptom of depression, with some kids not feeling they truly deserve the help, she says.

Does a young capable patient's refusal of treatment get overruled in an emergency?

"To the general principle that consent must always be obtained before any treatment is administered, there is an important exception. In cases of medical emergency when the patient (or substitute decision-maker) is unable to consent, a physician has the duty to do what is immediately necessary without consent," Dr. Wallace says.

Can kids challenge the system if they're deemed not to be capable mature minors?

"If an individual kid is said to be incapable, they do have the right to challenge that by going before the Consent and Capacity Board. If the kids do request it, it's quite a time-consuming procedure for the physician. They have to take time off their work and they aren't compensated. It can be a very stressful interaction and it can challenge the relationship," Dr. Geist says.

What about confidentiality under 18?

Confidentiality is murkier if a patient is younger than 18 years old. Being deemed capable at 13, 14, 15 and so on doesn't preclude parents from having access to medical records. "On the one hand, we're saying to kids, 'Hey, you're old enough to make your own decisions about treatment, but I may still have to tell your parents what we've been talking about,'" Dr. Baillie says, adding that there isn't enough clarity about confidentiality for young patients.

Editor's Note: The original digital version of this article incorrectly stated that only Quebec has a defined age for medical consent. In fact, New Brunswick also has such a law. This digital version has been corrected.

The Centre for Addiction and Mental Health has purchased advertisements to accompany this series. The organization had no involvement in the creation or production of this, or any other, story in the series.