A child who is deemed to possess the cognitive, mental or developmental capacity to exercise their legal right to consent to treatment, may make their own health care treatment decisions independent of their parents’ or guardians’ wishes. In B.C., there is no set age when a child is considered capable to give consent. Children are able to make their own health care and mental health decisions in B.C.

The UN Convention on the Rights of the Child (CRC), in Article 12 provides that State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with age and maturity of the child.

An important aspect of Article 12 is that it addresses developmentally appropriate participation of children and youth while it recognizes young people as having the capacity to make meaningful decisions. While parents and legal guardians have responsibility over children below the age of majority, in practice they ought to give due consideration to the child’s voice in accordance with their developmental capacity in keeping with CRC Article 5 that concerns evolving capacities.

The interpretive clause concerning evolving capacities is embedded in both Articles 5 and 14.2, which inform interpretation of participation rights. The notion of evolving capacities involves the progressive exercise of a young person’s rights and responsibilities appropriate to their age and stage of development. The inclusion of this clause gives recognition to the developmental nature of how children come to experience rights to participate and responsibilities.

In 2009, the United Nations body issued the General Comment No. 12. It was stated that considerations need to be given to provide for ways of inviting young people to participate in health care decisions, enabling them to express their views and influence decision making in ways that provide for their best interests.

The Infants Act provides a legal right for a child who has been assessed as being a mature minor to consent to treatment in the absence of parental consent. In the event a child’s parents are separated, decision making with respect to giving, refusing or withdrawing consent to medical, dental and other health-related treatments for a child is subject to section 17 of the Infants Act as per section 41(f) of the Family Law Act.

Section 17 of the Infants Act was interpreted by the Court of Appeal in A.B. v. C.D., 2020 BCCA 11, at para. 137, which held:

The Infants Act has made it clear that health care professions, not judges, are best placed to conduct inquiries into the state of medical science and the capacity of their patients when it comes to questions of minors’ medical decision-making.

The Infants Act section 17 states that children have the legal right to consent to a medical treatment on their own as long as a health care provider is sure that the treatment is in the child’s best interest, and that the child understands the details of the treatment, including risks and benefits. It is up to the health care provider to assess and ensure the child’s understanding of the treatment. The Infants Act defines “health care provider” as a person licensed, certified or registered in British Columbia to provide health care.

Research shows that there are multiple benefits to involving children in decisions about their health, empowering children to participate in healthcare decisions is crucial for their overall well-being and mental health, and it promotes self-advocacy skills.

Children have unique knowledge about their lives, needs and concerns and taking their views into account in decisions that impact them enables them to make better, more informed decisions.