In brief
- When child protective services are involved, it can be challenging for physicians to determine who has authority to consent to care and access the child’s medical records.
- If the child is capable of consenting to treatment, the physician should obtain consent from the child.
- Unless there is a court order or agreement granting decision-making authority to child protective services, the parent or guardian generally maintains authority to consent to the child’s treatment. They also retain authority to access the child’s medical records.
- Where appropriate, the physician should request legal documentation confirming decision-making authority, which may take the form of a court order or guardianship/care agreement. A copy of this documentation should be kept in the child’s medical record.
When can a child provide consent?
In Canadian common law jurisdictions (all provinces except Québec), a child's ability to provide consent depends on whether they appear to have a full appreciation of the nature and consequences of the decision. Minors who are capable of consenting to treatment will normally also have the capacity to control their personal health information. The concept of "mature minor" is not applicable in Québec, where the age of consent is generally established at 14 years.
Requests from non-parents
In some situations, the person with decision-making responsibility for the child might be someone other than the child’s parent (e.g. a grandparent, aunt, or uncle). This authority can be granted through a guardianship order, parenting order, or legislation. These individuals also have a right of access to the child’s health information. If in doubt about a non-parent’s right of access, physicians should request a copy of any guardianship order, parenting order, or other legal authority.
When can child protective services consent to treatment for a child?
In most jurisdictions where a child is apprehended by child protective services but there is not yet a court order or agreement regarding guardianship, child protective services can generally consent to any necessary treatment that in the opinion of the treating physician should be provided without delay to a child without capacity.
When a child is under the care of child protective services, the care agreement or court order will specify whether child protective services, the parent or guardian (or both) have decision-making authority for medical treatment of a child without capacity.
- When the care agreement or court order grants decision-making authority for medical treatment to child protective services, relevant health information should be disclosed to permit child protective services to make informed decisions about medical treatment for an incapable child.
Does child protective services have a right to a child’s or a parent’s medical information?
Legislation in all provinces and territories requires physicians to report to child protective services when there are reasonable grounds to believe or suspect that a child has been abused, is being abused, or is at risk of abuse. Physicians should only provide information necessary to make a proper report, including the facts and circumstances giving rise to the suspicion of abuse.
A physician may be required to provide additional information to child protective services as part of their original reporting obligation. However, information regarding the child’s, parent’s or guardian’s ongoing medical treatment or prognosis would not generally be considered as part of the reporting duty.
- In Québec, child protective services has authority to obtain, after a report has been made, personal health information concerning a child, parent or guardian, or any other person involved in the situation subject to the report. Only information relevant to the child’s placement in care or their need for protection can be provided.
Does the parent or guardian maintain a right of access to their child’s medical information once child protective services is involved?
Unless the care agreement or court order states otherwise, or there is a legal exception (e.g. a risk of harm), the physician cannot generally refuse access to an incapable child’s medical record. This includes documentation of the report made to child protective services.
- In Québec, child protective services should be consulted before providing a parent or guardian access to the child’s medical record where child protection services has been involved. Access should generally be refused if it is determined that access will or could prejudice the child’s health or safety. If providing access, the identity of the person who made the report to child protection services should be redacted unless the parent or guardian is already aware of their identity.
Do I need to tell a parent or guardian that I have made a report to child protective services?
It is generally preferable to be honest and transparent with parents and guardians regarding the fact that a report has been made and the rationale for the report. Document any discussion with the parent or guardian in the patient’s medical record.
In some circumstances, it may not be appropriate to inform the parent or guardian in advance of the decision to report. Consider the safety of all those involved, including the child, the child’s siblings, and other healthcare providers or staff.
Additional reading
