Who consents to the Covid-19 vaccine? (5-11 year olds)

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Disclaimer: This blog is not intended to argue for any position and does not constitute legal advice. Rather, the focus of this blog is to explore some of the legal and ethical issues that stem from this complex question.

Who consents to children receiving the Covid-19 vaccine?

This has been the question on parents' minds, especially parents who are not ready or willing to have their child vaccinated.

The answer is complicated.

Technically, under the Health Care Consent Act there is no age at which a person becomes capable of consenting to their own medical treatment. It doesn't matter if a person is 2 or 42. What matters is whether they are "capable". Of course, a 2 year old is never "capable". But the important takeaway is that there is no minimum age of capacity in Ontario.

What does "capable" mean in the context of the Covid-19 vaccine?

It means the person is able to understand the information relevant to the Covid-19 vaccine. For example, how is it administered? What are the benefits? What are the potential risks and side effects? What are the alternatives, if any?

And, secondly, is the person able to appreciate the reasonably foreseeable consequences of that decision? For example, if a person gets Covid-19 they could pass it on to others. They might be asymptomatic and feel fine, or they might end up with long Covid or other serious health consequences. Applying the information to oneself and being able to make a thoughtful reasoned decision, is part of capacity.

If a person is capable, they are entitled to provide informed consent or decline the proposed treatment. If they lack capacity, a substitute decision-maker decides for them.

Consent must be accepted only from a capable person. To accept consent from a substitute decision-maker, rather than the capable patient, is in fact against the law (specifically, the Health Care Consent Act).

No treatment without consent
10 (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,
(a)  he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or
(b)  he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.  1996, c. 2, Sched. A, s. 10 (1).

How would the person providing a vaccine know if a child is "capable?"

It is easy enough to repeat the legal test; it is much harder to apply it. Even in adult patients, there is not always consensus among health care providers as to whether an individual is capable at a given time.

In Ontario there is a "presumption of capacity", which means individuals are assumed to be capable. In the majority of health care interactions, this is simple. You go to your family doctor or your dentist and you are treated as though you are capable. We don't give it a second thought. Only when there are concerns about incapacity (in children, or persons with cognitive impairment) does capacity ever cross our minds.

Presumption of capacity
(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.  1996, c. 2, Sched. A, s. 4 (2).
(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.  1996, c. 2, Sched. A, s. 4 (3).

The presumption of capacity ends when there are "reasonable grounds to believe" a person is incapable. At that point, the health care provider will reflect a little more deeply about whether the individual is in fact capable. It is fair to say (though some may disagree) that when a child is 11 years of age or younger, there are at least reasonable grounds to believe the person may not be capable.

In a Position Statement about the Covid-19 vaccine, the Canadian Pediatric Society stated that "Parents of children aged 5 to 11 years must be supported and respected in their decisions regarding COVID-19 vaccinations for their children, whatever decisions they make, and are not to be stigmatized for these decisions." While this statement is not law, it can be inferred that it is their position that 5-11 year old children will overwhelmingly (if not entirely) be incapable of making this decision themselves.

In theory an 11 year old could potentially be capable, but given the "reasonable grounds" to believe they are not, it would require more probing of the child's understanding and appreciation. And will almost certainly be the exception, not the norm.

Putting aside all this legal stuff, what is actually happening?

When my son (who is under 11 years of age) received his first Covid-19 vaccine at a clinic, the person administering the vaccine asked him questions that appeared to be probing his capacity. He was asked about his school, his birth date and why he was there. They asked if he agreed to the vaccine (other parents have shared similar experiences). Notably, parental consent was also sought. Perhaps the questions were simply being asked to make him comfortable. But it would certainly be a prudent strategy for health care providers to obtain consent from both parent and child in order to reduce their potential risk of having obtained consent from the wrong individual (if capacity were later called into question).

It also may have been a matter of "assent" - the idea that even where a child (or other incapable person) cannot legally consent, they can agree. This is a matter of respecting their right to bodily integrity and autonomy. In some cases, such as in the research context, both consent and assent may be required to move forward. It is unclear what would have happened if my son declined, as his substitute decision-maker was consenting on his behalf.

Vaccines will soon be available in clinics set up in at least some schools. Several school boards, such as the Toronto District School Board, have reported that they will require parental consent for kids ages 5-11. [As a side note, in some cases the child's substitute decision-maker might not actually be a parent (for more on this, please watch our video about substitute decision-making).]

This, however, begs the question: what if the child really is capable? For younger children this is far less likely. But could an 11 year old be capable? Theoretically yes (as unlikely as it may be, adolescents have been found capable in other contexts).

Toronto Public Health has taken the position that a 12 year old is capable of making their own decision about the Covid-19 vaccine. So why not 11 years and 10 months? There is no line in the sand.

In an October 2021 court decision, in which parents disagreed about whether to vaccinate their 14 year old children, a judge agreed with the Toronto Public Health policy and said:

While medical decision making is an incident of parental custody, if the minor is a “mature minor” and capable of providing informed consent under s. 4 of the HCCA, decisions regarding medical treatment may be made by the minor. As indicated, the question is whether the health care provider administering the vaccine is satisfied that the young person is capable of understanding information about the vaccine.

So where is the ethical or legal dilemma?

As this is a controversial topic, the "correct" answer will depend on the stakeholder, their beliefs and interests. A parent who is vaccine-hesitant and confident their child lacks capacity would likely say that a policy requiring parental consent is appropriate. After all, how could a child truly be capable of such a big decision? Prior to Covid-19, we (as in, society at large) never really talked about whether children were capable of making decisions about vaccines. Parents just made the decision, so why should this be any different? And some parents are concerned about the implications of government agencies deciding what happens to their children's bodies.

Yet, others are concerned that this is the beginning of a slippery slope in which it becomes socially acceptable to disregard our usual consent laws and violate the autonomy of mature minors or other persons who are vulnerable by virtue of their circumstances.

Practically speaking, an 11 year old is unlikely to turn their mind to any potential recourse even if they are in fact capable. They probably won't make their way to another vaccination clinic with a different policy or call a lawyer.

But, is it ethical to violate the rights of a capable 11 year old because we know they are unaware of those rights? A capable adult would be quickly asserting their rights if their decisional autonomy were disrespected (as we've seen happen by those who have been outspoken against vaccine mandates). In fact, when adults are found to be incapable they are provided with notice and an opportunity to appeal the finding of incapacity to the Consent and Capacity Board.

Or, perhaps because they are still minors, it is consistent with the spirit of the law to act in the best interests of 5-11 year olds despite their wishes. There is certainly room for such an argument, though it may be the weaker argument. If an adult lacks capacity to make a treatment decision, their substitute decision-maker is bound by any prior capable wish the person made. But, only if the prior capable wish was made when the person was 16 years of age or older. There is no recognition of a prior capable wish in children 15 and younger in Ontario. A substitute decision-maker must act in the "best interests" of any child who is 15 years of age or younger (if the child is incapable). So, in this respect, we do treat the age of 16 as having some meaning from a consent perspective.

What is meant by "best interests"?

There is more than one definition of "best interests". In a custody dispute, for example, the "best interests of the child" has a particular meaning.

In the context of consent to treatment in Ontario, we are looking at "best interests" from a purely health law perspective. The Health Care Consent Act gives us factors that must be considered in an assessment of what treatment is or is not in a person's best interests. These factors are open to interpretation. One parent could review the factors and say the Covid-19 vaccine is not in their child's best interests because the likelihood of them having an adverse reaction to Covid-19 seems low, and that "SARS-Cov-2 infection in children 5 to 11 years of age is usually asymptomatic or causes mild disease".

Another parent could apply the same best interest test and reach a different conclusion, that while the chance is low "[s]ome children, including previously healthy children, will develop serious infection or MIS-C". For that parent, having the Covid-19 vaccine is in their child's best interests because the risk of serious infection can be greatly reduced or avoided.

Best interests
(2) In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,
(a)  the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;
(b)  any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and
(c)  the following factors:
1.  Whether the treatment is likely to,
i.  improve the incapable person’s condition or well-being,
ii.  prevent the incapable person’s condition or well-being from deteriorating, or
iii.  reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.
2.  Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.
3.  Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.
4.  Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.

A parent deciding for their child would have to give some consideration to their child's expressed wish, as well as whether the vaccine is likely to improve their condition or well-being, or prevent their well-being from deteriorating. The parent (or other substitute decision-maker, if not a parent) would have to weigh the potential risk of harm with the potential benefit.

What if a health care provider thinks the parent got it wrong by declining the vaccine?

While rare, there are instances where a health care provider is so concerned about a parent's decision for their child that they bring a Form G application to the Consent and Capacity Board so that a hearing can take place. This specialized tribunal would hear evidence about why the health care provider believes the vaccine is in the child's best interests, and why the parent believes the vaccine is not in the child's best interests.

As these hearings can be time-consuming and expensive, and health care providers generally prefer to find non-litigious avenues to work with parents, it seems unlikely this will be the outcome after a parent declines a Covid-19 vaccine. But it is, nonetheless, possible (and if anyone comes across such a case, please send it our way!).

I am not aware of any Form G  hearings that have ever taken place regarding vaccines for adults or children, and suspect the chance of this happening is extraordinarily low.

What if parents disagree about whether to consent to the vaccine for their 5-11 year old?

Parents are usually equally ranked substitute decision-makers who must decide for their incapable children together. If they disagree, the Office of the Public Guardian and Trustee (a government agency) can be contacted by the child's health care provider to make the decision (pursuant to section 20(6) of the Health Care Consent Act). Practically speaking, this is very unlikely to happen.

If the parents are separated or divorced there might already be an agreement or court order that specifies who makes medical decisions for the child(ren). Or, they might ask a court to hear both sides and make a decision. In a recent case, an Ontario court said:

The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.

This case, and other vaccine-related custody disputes prior to Covid-19, suggest that the parent seeking vaccination is more likely to be successful in such litigation.

So, where does this leave us?

The parental consent policies for kids 5-11 years of age certainly serve as a practical line in the sand. They give clarity to persons administering vaccines (in those locations that have adopted a parental consent policy).

However, there is no legal age of capacity to consent to treatment in Ontario so if a policy requires parental consent for kids 5-11 it may be subject to challenge. By whom, if anyone, remains to be seen.

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