About this guide
The Paediatric Death Review Committee of the Office of the Chief Coroner has recommended that the Ontario Association of Children's Aid Societies, together with the Ministry of Children, Community and Social Services, the Ministry of Health and Long-Term Care, and the now closed Ontario Child Advocate, develop a guide to assist child welfare professionals in understanding and making decisions about consent to treatment issues.
This library guide brings together existing resources relating to this topic and may prove useful until such a resource is developed.
About capacity and consent
In its resource in support of policy directive CW005-17 (pertaining to identity-based data collection), the Child Welfare Secretariat defines capacity to consent as follows:
"a child or youth’s ability to understand the information that is needed to make a decision ... and the ability to appreciate what it means to give, withhold or withdraw consent"
Incapacity is when a child or youth is unable to make an informed decision, either because they are not able to understand the information, or because the information provided to them is false, misleading, or inaccurate. In addition to being informed, consent must be freely given (i.e. given without pressure or undue influence) in order to be considered valid.
The Ontario Human Rights Commission (OHRC) describes capacity as contextual, not unchanging. Factors that impact capacity to consent include the child/youth’s age, maturity, literacy level, and developmental and psychological state. The OHRC also recognizes that capacity to consent and capacity assessments can be influenced by the social environment, including bias and stereotypes.
Factors and considerations
- Mental health of children and youth: Consent and practice implications [2016]PARTicle. Note: login required; must be a PART member to access
- Policy on preventing discrimination based on mental health disabilities and addictions: Consent and capacity [2014]This resource from the Ontario Human Rights Commission discusses human rights principles, consent, and decision-making capacity specifically as relates to people with mental health disabilities and addictions
- Summary of age-based legal milestones for youth in Ontario [2019]This summary of age-based and non age-based legal milestones for young people in Ontario is intended as a reference only (note: consent to health care related treatment is based on a child/youth's ability to understand the treatment and not their age)
- Child development and trauma guideGuide with information about the developmental pathways of children as well as the typical indicators of trauma at differing ages and stages
- Universally speaking: Ages and stages of children's communication developmentCollection of resources from the Communication Trust in the UK with information about the communication skills of children and young people at various ages
- Guidelines and resources on communicating with people who have communication disabilities [2009]Information and tips on communicating with individuals who have communication disabilities
Consent and identity-based data collection
- Policy Directive: CW005-17 [2017]This policy directive includes information related to capacity to consent and establishing consent in the context of collecting identity-based data from children and youth
- Questions and Answers - Policy Directive: CW005-17 [January 2018]Questions and answers related to Policy Directive: CW005-17, with some information specific to capacity to consent
- Consent script form [2018]This resource was created by the then Ministry of Children and Youth Services to support Policy Directive CW 005-17: Collection and Reporting of Identity-Based Data. It is a consent script for agency staff to use with children and youth
Additional resources
- The ultimate health rights survival guide: A step-by-step guide for young people for making your own health decisions and what to do when you can't make your own decisions [2013]Practical guide created by the Ontario Child Advocate and meant for both young people and service providers in Ontario care systems, including child welfare, youth justice, children’s mental health, as well as the foster homes, group homes, residences, and facilities within these systems
- Understanding common legal issues in child and youth mental healthThis webpage from the Canadian Mental Health Association provides information on consent as relates to children and youth as well as a definition of informed consent
- Practice guidelines for consent and confidentiality with children and youth [2009]Guidelines for social work and social service work professionals from the Ontario College of Social Workers and Social Service Workers
- Consent: A guide for Canadian physicians [2016]Comprehensive handbook from the Canadian Medical Protective Association (CMPA)
- Can a child provide consent? [2016]CMPA resource with a specific focus on the capacity of children to consent to treatment
- Medical decision-making in paediatrics: Infancy to adolescence [2018]Position statement from the Canadian Paediatric Society
- Advice to the profession: Consent to treatmentGuidance for physicians from the College of Physicians and Surgeons of Ontario
Organizations and websites
- Legal Rights Wiki: Health & Mental HealthThis resource from Justice for Children and Youth provides information on legal rights with regards to health care treatment
- The Consent and Capacity BoardThe Consent and Capacity Board is an independent body created by the provincial government of Ontario under the Health Care Consent Act. It conducts hearings under the Mental Health Act, the Health Care Consent Act, the Personal Health Information Protection Act, the Substitute Decisions Act and the Mandatory Blood Testing Act
- Communication Disabilities Access Canada: Legal CapacityProject in progress with a focus on the communication supports that people may need to exercise their legal capacity and express their opinions, preferences, choices and decisions