As COVID-19 vaccines become available to children under 12, the issue of a child’s capacity to consent to or refuse a vaccination will be tested

Whether a child should be vaccinated for COVID-19 is the latest conflict between separated parents now being determined by the courts.

Notwithstanding that most Canadian public health agencies have advised parents of children 12 and up that “getting vaccinated is one of our best tools for this fourth wave of COVID-19 … (and that) to protect all children, all eligible youth and adults should be vaccinated,” this decision is not as simple as it seems.

Legislation exists in many provinces that allows a child with “capacity” to make their own decision about treatment, whether or not one or both parents agree with that decision.

In Ontario, the age of a child is irrelevant to whether or not they have the capacity to consent to medical treatment. A child of any age has capacity if they are able to understand the information that is relevant to making the decision about the proposed treatment and they are able to appreciate the reasonably foreseeable consequences of their decision.

Justice Rosalie Abella for the Supreme Court of Canada (who retired in 2021) explained the origin of the “mature minor” in 2009 by saying the “the doctrine addresses the concern that … the right to make decisions reflecting medical treatment varies in accordance with the young person’s level of maturity, with the degree to which maturity is scrutinized intensifying in accordance with the severity of the potential consequence of the treatment or of its refusal.”

Two recent court decisions brought this issue into sharp focus.

In a case, O.M.S. v E.J.S., at the Saskatchewan Court of Queen’s Bench, a father sought an order allowing him to have the parties’ 12-year-old daughter (DS) vaccinated. The daughter’s position, as stated by the mother, was that she did not want to be vaccinated. Her mother and maternal grandparents shared this view. The mother filed evidence from a doctor who diagnosed the daughter with “possible” vaccine toxicity, and from a registered psychotherapist/nurse who opined that “The developmental concepts … seem to suggest that the risks of the current court case is greater than the benefit for this young adolescent. It might be more developmentally appropriate to acknowledge DS’s mature decision making skills and listen to her perspective about and goals for her body.”

Despite this evidence, Megaw held that “… the child’s views, while considered, do not decide the issue. There is concern over how much she has been influenced (by her mother and extended family). There is moreover concern over COVID-19 and the need to be vaccinated.”

In making this decision, the judge dispensed with much of the evidence filed by the mother, saying “this case is not about whether there is, or has been, a pandemic … This case is also not about governments bullying or forcing citizens to take experimental drugs … Finally, it is not about either right or left politics … The Court’s singular focus on all matters involving children is to do that which is in the child’s best interest. Whether that best interest accords with either the mother’s or the father’s wishes is secondary to this primary goal.”

In Ontario, Justice Robert Charney in A.C. v L.L. considered the case of 14-year-old triplets, two of whom lived with the father and one of whom lived with the mother. The two children living with their father (P and J) attended school virtually; E attended school in person. The father sought to have P and J attend school in person, but indicated that P and J wanted to be vaccinated before attending in person. The father supported their position.

The mother did not, and refused to provide P and J’s health cards or other identification so that they could be vaccinated, even though both parents wanted the children to attend school in person. E, the triplet living with the mother, did not want to be vaccinated, and was already attending school in person.

Charney first considered whether in-person schooling was in the children’s best interests. He found that “in-person classes are presumed to be in the best interests of the child.’’

The mother argued that while she agreed P and J should attend school in person, since the government had not made “COVID-19 vaccinations mandatory for children to attend school in person, the government is ambivalent about the safety or efficacy of the COVID-19 vaccine.”

Charney made short work of this argument, too, saying that “It is understandable that governments may try the carrot before they have recourse to the stick.”

After reviewing publicly available from Toronto Public Health, the Toronto District School Board and the Ontario Ministry of Health about vaccines for children 12 and older, he went on to say that “Absent compelling evidence to the contrary, it is in the best interests of an eligible child to be vaccinated.”

However, Charney was also obliged to consider whether the mother’s consent to P and J’s vaccination was required and found that “as a matter of law, the mother’s consent is not necessary for the children to be vaccinated if they so choose,” citing Ontario’s Health Care Consent Act, which does not provide any minimum age for capacity to make medical treatment decisions.”

In A.C. v L.L., the parents agreed that all three of the triplets had capacity under the Health Care Consent Act to consent to treatment. Unlike Megaw, Charney considered and respected the position of each of the triplets, leading to the unusual result that P and J could be vaccinated without their mother’s consent, while E could remain unvaccinated.

Had the father not agreed that E had capacity, Charney would have been required to wade into the muddy waters of “informed consent, which would have required him to consider the possible consequences of E remaining unvaccinated, the effect of any influence by E’s mother on the child’s views and the information (or lack thereof) available to E prior to making her decision that she did not wish to vaccinate.

As COVID-19 vaccines become available to children under 12, the issue of a child’s capacity to consent to or refuse a vaccination will surely be tested again.

This article originally appeared in The Financial Post.