Obtaining consent from childen

George K. Bryce
BCACC legal counsel
Published in Vol. 12:2 of Insights (Summer 2000)

The question

A counsellor asks: "I have been told that clinical counsellors are not health care providers, as that term is defined under the Infants Act. Does this mean that a counsellor cannot obtain consent from children for counselling services? That a counsellor must always seek consent from a child's parents or guardian?"

The answer

Before I answer these questions, it is useful to define two terms.

The Infants Act uses the term "infant" throughout. In BC, this means someone who is under the age of nineteen. However, I prefer to use the term "child", as an infant is commonly understood by most of us to be a very young child, usually a child under the age of two. Therefore, while the Act will use the term "infant" I will use "child".

The common law also has a description of a certain type of child called the "mature minor". A child who is under the age of majority (e.g. nineteen), can be described as a mature minor, if they have sufficient intelligence to understand the nature and consequences and the reasonably foreseeable benefits and risks of a health care service or treatment. While some courts have found children as young as eight as being mature minors, this finding depends on the individual characteristics of the particular child and the nature of the health care decision they are facing. However and at the risk of over-generalizing, a mature minor is commonly understood to be a child who is 13 years of age or older and of average intelligence. But the essential feature of "mature" is the child's capacity to understand and make the particular health care decision that is before them. So it is a flexible concept.

With those terms in mind, let us consider the wording of section 17 of the Infants Act:

17(1) In this section:

"health care" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of health care;

"health care provider" includes a person licensed, certified or registered in British Columbia to provide health care.

(2) Subject to subsection (3), an infant may consent to health care whether or not that health care would, in the absence of consent, constitute a trespass to the infant's person, and if an infant provides that consent, the consent is effective and it is not necessary to obtain a consent to the health care from the infant's parent or guardian.

(3) A request for or consent, agreement or acquiescence to health care by an infant does not constitute consent to the health care for the purposes of subsection (2) unless the health care provider providing the health care

(a) has explained to the infant and has been satisfied that the infant understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care, and

(b) has made reasonable efforts to determine and has concluded that the health care is in the infant's best interests.

Clinical counsellors clearly provide health care as that term is defined in subsection 17(1), but the phrasing "licensed, certified or registered in British Columbia" used in the second definition is problematic.

Few cases have considered the Infants Act, let alone the meaning of "health care provider" under subsection 17(1). The 1993 case of Ney v. Canada (Attorney General) is British Columbia’s only reported decision which has considered section 17 (formerly section 16) of the Infants Act. While brief, the reasons of Huddart J. are instructive.

Huddart J. points out that section 17 applies to "a member of one of the 21 professions whose members currently qualify as persons ‘licensed, certified or registered in British Columbia to provide health care’." The court then listed in an appendix those 21 professions and their applicable governing legislation. Counsellors are not on the list. Indeed, no profession established under the Society Act is on that list.

Clinical counsellors are members of the BC Association of Clinical Counsellors, which is a professional society registered under the Society Act. Their membership in the BCACC stands in contrast to the terms of membership in a college established under the Health Professions Act. While the Association has taken on a public interest mandate, a college under the HPAct has been given an expressed statutory mandate to protect and promote the public interest. Further, membership in the Association is voluntary, and if a member were to resign during a complaint investigation or disciplinary hearing, the Association would loose jurisdiction over that member. This would not happen to a college's jurisdiction over a resigned member under the HPAct.

Based on Huddart J.’s interpretation, one could conclude that clinical counsellors do not fit within the definition of a health care provider under subsection 17(1) of the Infants Act. But that definition uses an important word: "includes". In other cases, the courts have explained that "includes" means that those things not specifically listed after that word could form part of the definition. Therefore, it is possible that clinical counsellors are health care providers as defined under subsection 17(1) because the definition is not exclusive.

However, if we take a conservative approach and decide that counsellors do not fit within the section 17(1) definition, that would have little effect in terms of the rules that counsellors must follow when obtaining consent of a child to health care. This is because of another important finding in the Ney case.

The Ney case was an application by members of a group which believed that what is now section 17 of the Infants Act was unconstitutional and infringed on the rights of children and parents, as protected under the Canadian Charter of Rights and Freedoms. The group is the Citizens' Research Institute, Langley-based group concerned with preserving the family as a fundamental unit in Canadian society.

In rejecting the CRI's application to strike-down what is now section 17 of the Infants Act, Huddart J. reviewed the common law rules that govern the right of children to consent (or to refuse consent or to withdraw consent) to health care. In doing so, Huddart J. found that section 17 does nothing more than codify the common law rules of consent that apply to children. Huddart J. found that there was no suggestion in the Act that the common law has been revised or replaced by a new rule in section 17.

As the common law has not been replaced by section 17, the common law rules regarding acquiring consent from children continue to apply to clinical counsellors. (Indeed, the common law does not distinguish between physicians and other health professionals (such as clinical counsellors) in relation to consent by children.) Therefore, rather than being governed by section 17 of the Infants Act (as is the case for licensed health care providers such as psychologists), the rules that apply to clinical counsellors are found in the common law. Thus, it is irrelevant whether counsellors are defined under subsection 17(1) as health care providers. Clinical counsellors can continue to obtain the consent of a child to health care under the common law rules. I offer the following brief summary of the consent rules that apply to counsellors.

A child is permitted by the common law to give legally binding consent to a clinical counsellor without the need for the counsellor to seek the consent of that child's parent(s) or guardian(s). But, before obtaining or relying on that consent, the counsellor must determine three things:

The first precondition is not fixed. It will vary depending on the nature of the treatment or service being proposed, and any associated risks. For example, if the nature of the therapy were minor or straightforward with little risk to the child, then less understanding would be required than if the treatment was more complex or posed a greater risk to the child's health. A counsellor should carefully record in the clinical notes what process was followed to ascertain that the child understood and appreciated the services being proposed and the risks, including any conclusions the counsellor reached about the child's intelligence and capacity to understand.

The second precondition may not arise often in a counselling practice. But if a child cannot communicate consent for some reason (even if the child appears to have sufficient intelligence to understand), the counsellor should obtain consent from some other source, such as the child's parent or a court-appointed guardian.

To satisfy the third pre-condition, a counsellor should then make inquiries to ensure that the proposed counselling service is in the child's best interest. If the counsellor is concerned that the proposed treatment or service may not be in that child's best interests (in a broader context than the emotional or psychological problem being addressed), the counsellor should discuss this concern with the child. The counsellor should to ensure that the child is comfortable with any negative reaction that may be expressed by that child's parent(s) or guardian. Again, the counsellor should document that type of conversation in the clinical notes.

If a counsellor is satisfied that all three of these conditions have been met, the counsellor is free to provide counselling service to the child in question.

Mr. Bryce would like to thank Hallor Bjarnason for his assistance in researching the law on this subject.

This column is intended to help clinical counsellors gain a better understanding of legal issues that are relevant to their practice. It is not meant to be a substitute for independent legal advice. If you have a particular concern about an issue that you are facing in your practice, you should seek specific legal advice from your lawyer. The BCACC cannot provide individual counsellors with legal advice and assumes no responsibility for the content of this column.

If you have a practice question that you feel raises a legal issue that should be of concern to all counsellors, please mail that question and any background information in confidence to: The Counsellor’s Counsel c/o the Victoria office.