In December, 1992, the Ontario Legislature passed the Consent to Treatment Act [CTA] and the Substitute Decision Act [SDA], both of which are now expected to be proclaimed in force on April 3, 1995. In general terms, the CTA sets out the legal conditions under which “health practitioners” [“HPs”] are permitted to administer “treatment” to patients. HPs are prohibited from administering a proposed treatment unless they have formed the opinion that either (a) the patient is capable of giving, and has given, consent’ or (b) another person has given consent in accordance with the Act [s.4].
The CTA also essentially codifies the established common law understanding of what it means to give an “informed consent” [s.5] and to have “capacity’ to give consent to a proposed treatment [s.6]. Subparagraph 5(1) lists the required elements for a valid consent as follows:
- The consent must relate to the treatment
- The consent must be informed
- The consent must have been given voluntarily
- The consent must not have been obtained through misrepresentation or fraud
Subparagraph 5(2) says that a consent is informed if, before giving it,
(a) the person received the information about the treatment, alternative courses of action, the material effects, risks and side effects in each case and the consequences of not having the treatment that a reasonable person in the same circumstances would require in order to make a decision; and
(b) the health practitioner responded to the person’s request s for other information about treatment, alternative courses of action, material effects, risks and side effects, and consequences of not having the treatment.
S.6(1) states: A person is capable with respect to a treatment if the person is able to understand the information that is relevant to making a decision concerning the treatment and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
In determining a person’s capacity with respect to a treatment, a HP is required to apply the prescribed criteria and follow the prescribed standards and procedures [in the Regulations yet to be published]: s.8.
The Provision of Birth Control Pills and abortions to Minors
Pro-lifers have often complained about the failure of “family planners” and abortionists to obtain “informed consent” from their clients for abortions and the birth control pill, and about the secrecy with which they market their products and services to underage girls who are still dependent upon and living with their parents.
Apparent ignorance or apathy on the part of parents, the reluctance of victims of birth control and abortion to seek redress for their injuries, and inaction on the part of the Ontario College of Physicians and Surgeons, have all combined to leave the “family planning” and abortion industries in Ontario largely unregulated.
Indeed, in a letter to its members issued in 1991, the Ontario Association of Sexual Health Professionals boasted that “Family Planning Services across Canada have operated for twenty years without legal challenge in offering service to competent minors.”
For al practical purposes, practitioners in the “family planning” and abortion fields have been granted an exemption from the existing common law principles of capacity and informed consent where children are concerned. Does the new CTA then which reaffirms the principles of capacity and informed consent, offer parents anything they can use to protect their children from exploitation? Not really. On the contrary, there is ample evidence to suggest that these new laws will give a statutory blessing to both the clandestine relationships that “family planning” and abortionists currently have with Ontario’s schoolchildren, and their current approach to “informed consent.”
The Act does not state that a failure to obtain a proper consent is an offence punishable by fine or imprisonment. Whether the concepts of “capacity” and “informed consent” remain part of the common law or are codified in a statute or regulation is of no consequence. The important question is: can they and will they be enforced? Enforcement can be by public means, or by private legal action. Under the CTA, there will be no public prosecution of wrongdoers. Accordingly, parents whose children are birth-control victims or suffer from post-abortion injuries or trauma will be limited in their options for legal redress to commencing a private action or filing a complaint with the Complaints Committee of the Ontario College of Physicians and Surgeons. This represents no change whatsoever from the status quo.
When a young girl enters a Birth Control Clinic and the HP proposes to put her on the Pill or schedule her for an abortion, the CTA will effectively exclude from the treatment decision the people most likely to have her best interests at heart – her parents. It says that any child, no matter how young, is potentially capable of giving a valid consent to a proposed treatment [s.9 (13)], apparently without parental concurrence. It does not state expressly that HPs must not consult the child’s parents about the proposed treatment (i.e., that they owe to children the same “duty of confidentiality” they owe to adults), but that is the necessary implication of what is missing I the legislation.
The CTA gives to the HP who proposes a “treatment” the sole responsibility of deciding whether or not a particular patient is “capable” with respect to the treatment [s.4]. There is no requirement that the HP notify the patient’s parents that their child’s “capacity” is being considered or that a judgment has been made, or that a particular treatment is being proposed or has been administered.
Curiously, a child of any age has the right to appeal a health practitioner’s judgment that she lacks capacity for the proposed treatment to the Consent and Capacity Review Board [s.9], although the HP is required to give the child notice of his judgment of incapacity only if the child is at least 14 years old. In either case, a parent has no right to notice of appeal and no right to make representations concerning the mater before the Board (unless the Board orders otherwise: s.280.
Even if a parent happens to find out about the proposed treatment, the CTA provides no mechanism by which he could have the HP’s judgment of capacity and the propriety of the treatment reviewed by an impartial body (i.e., a court or other tribunal).
Parents should also be concerned about the fact that the CTA gives to all health practitioners, indiscriminately, the sole right to make a judgment as to a child’s “capacity” to make her own treatment decision. Most health Practitioners in the “family planning” industry have neither the expertise nor the objectivity to make such judgments. They lack knowledge of child development and have an institutional, economic, and ideological bias in favour of the “treatment” they are selling to children.
Even if the HP concludes that a child is not capable with respect to a proposed treatment [which would be rare if the HP is a “sexual health professional” and the “treatment” is the birth control pill or an abortion], the CTA does not necessarily require the HP to seek substitute consent from the child’s parents, depending on the child’s age and the involvement of other non-parental adults in the child’s life. If the child is at least sixteen years old and has no guardian appointed under the SDA or an attorney for personal care whose power of attorney has been “validated” under the SDA, the CTA allows the health practitioner to completely by-pass the child’s parents. If he is of the opinion that the child may need decisions with respect to treatment to be made on his or her behalf on an ongoing basis, his alternative is then to look to the person who is “highest” on a list of persons described in the CTA as a potential substitute decision-maker [s.17]
Parents are sixth on this list, behind a guardian appointed under the SDA or attorney for personal care appointed by a child who is at least 16 years old (the attorney ranks first if the power of attorney has been validated; second, if not validated), or such a child’s “representative” appointed under s.29 (third). The attorney or representative could be a stranger to the family, including a pro-abortion activist, a 16-year-old classmate, or a 16- year-old boyfriend. A substitute decision made by a person at a higher level on the list about a proposed treatment for the patient takes precedence over that of a person at a lower level.
In essence, only if the child is under the age of 16 would the child’s parent be the first person [by default] the HP would have to approach for substitute consent if he wanted to proceed with the proposed treatment.
Even if an HP approaches a parent for substitute consent, if the parent refuses consent, the CTA will allow him to “override” the parent’s refusal without notice to the parent. S. 25 of the CTA says that unless the parent is a guardian of the child’s person, the child’s attorney for personal care, or the child’s representative appointed by the Consent and Capacity Review Board under s. 29 (all of which apply only if the child is at least 16), the HP can override a parental refusal of consent to the treatment if
(a) he is of the opinion that the child is experiencing suffering or is at risk, if the treatment is not administered promptly, of suffering serious bodily harm, and
(b) he is of the opinion that the parent did not comply with section 13, which says that in making a decision on behalf of an incapable person, the substitute decision-maker must do so in accordance with the following principles:
(i) give or refuse consent in accordance with any wish the person may have expressed while capable and after attaining the age of 16;
(ii) act in the incapable person’s best interests if the substitute decision-maker is not aware of any wish described in paragraph (i).
Given their ideological orientation, full-time abortionists are likely to take the position that a pregnant thirteen-year-old girl would be “at risk of suffering serious bodily harm” if she did not have the abortion proposed for her and that her parents were not “acting in her best interests” by refusing to consent to it. Again, there is no procedure in the CTGA by which the parent could have the HP’s decision to override his refusal of consent reviewed.
The foregoing demonstrates that there is little action a parent can take under the CTA to prevent an HP from aborting his grandchild, or putting his daughter on the birth control pill. However, assuming a parent finds out about these tragedies after the fact, it is important to note that, here too, the legislation puts some severe roadblocks in front of the aggrieved parent who is seeking legal redress. These roadblocks include, but are not limited to:
(a) the onus of proving that his child was not “capable” with respect to the treatment [s.9 (13) of the Consent to Treatment Act and s.2 of the Substitute Decisions Act]; and
(b) a provision which generously protects a health practitioner from private liability for mistakes made in the judging a patient’s capacity and the validity of a consent given by the patient [s.26 (1)].
Modern theorists in the field of child development tell us that adolescents need direction from adults on contraception and abortion because they feel themselves indestructible and have neither the knowledge nor the depth of experience to make rational decisions in life-threatening circumstances.
The same developmental theorists who accept the notion of developmental stages in the physical, emotional and cognitive development of children, also support a role for parents in the healthy development of their child and the exclusion of the child from fully exercising his or her choices.
The Consent to Treatment Act is controversial because, in the words of Ontario Association of Children’s Aid Societies, it fails to “respect…the legitimate and necessary role of parents in the first instance with respect to supporting the medical needs of their children.”
Moreover, because it offers parents no procedure by which they can review or question the decision of a health practitioner that their dependent child has the capacity to consent to a proposed treatment without the involvement or consent of his or her parent(s), as well as the propriety of the treatment itself, this legislation is extremely vulnerable to a legal challenge based on ss. 2 (freedom of religion) and & (right to liberty) of The Charter of Rights and Freedoms.
The Ontario legislature has essentially usurped the important role that the parents play in directing their children’s medical treatment, and then turned around and delegated it to ““family planning” professionals, some of whom are more interested in selling a product, service, and ideology to the children than in preserving their health.