In Issue 7, I discussed youth COVID-19 vaccinations and how Ontario’s Health Care Consent Act gives youth a taste of autonomy prior to adulthood. However, in pandemic-response fashion, more is to be said on this topic.
With exponential COVID-19 case growth in December 2021, the province announced that schools will return to in-person education after a week and a half of online learning. In light of the return to in-person learning, COVID-19 transmission in schools remains a topic of concern for youth now eligible for vaccines. Following the suit of adult vaccination roll out, youth ages five to eleven were given the green light to receive child-sized COVID-19 vaccines from Pfizer in November of 2021 while youth ages twelve and up received the go-ahead to receive doses last May. Eligibility for youth and child vaccinations now clashes with provincial legislation regarding the parameters around vaccine consent.
Under Ontario’s Health Care Consent Act, there is no minimum age of consent for individuals to make decisions pertaining to medical treatment, provided that individuals meet the requirement of informed consent. Informed consent means the recipient understands the treatment, why it is being recommended, and the risks and benefits if they accept or refuse the medical treatment. If an individual is found to be incapable of giving informed consent, an individual can acquire a substitute decision-maker to provide consent on their behalf. Simply put, without an age benchmark for consent, Ontarians have autonomy over their own health decisions unless proven otherwise.
If we consider Ontario’s Health Care Consent Act in the context of youth and child vaccination, the law is not clear-cut.
The province has deemed youth ages twelve and up as an age group officially capable of giving informed consent to receive the COVID-19 vaccine without parental or guardian consent. In the event an individual in the age group is deemed to lack the capacity needed to provide informed consent, ordinary restrictions apply and a substitute decision maker will be needed. Push back regarding youth vaccine autonomy has been loud. With peer pressure and rabbit holes of misinformation on social media, it is unsurprising that parents would be uncomfortable with youth’s latitude of autonomy regarding COVID-19 vaccination.
Moreover, parents across the province are now faced with the paramount question: “Can children get a COVID-19 vaccine in Ontario without their parent’s permission?” This is where Ontario faces a slippery slope. The province makes it clear that parents or substitute decision makers of children aged five to eleven will, for the most part, have to provide consent on behalf of the child at the time of the appointment before their children can receive a vaccine. Ontario’s Associate Medical Officer of Health, Dr. Vinita Dubey, says that “while in Ontario, there is no age of consent in the Health Care Consent Act … developmentally most children under twelve are not able, or as we say in medicine capable, to provide their own consent, which is why it falls to the parent or guardian.” Consent forms for in-school vaccination clinics will need to be signed by a child’s guardian and sent back to the school in order for a child to receive the vaccine. Otherwise, if a child shows up with their parents to a clinic, there is implied consent.
Upon writing this, anecdotes from my rigorous first semester in 1L have informed my train of thought to constantly consider the “what if.” What if an eleven-year-old wants to receive the COVID-19 vaccine, but their guardian(s) refuse to provide consent? To this, I remind myself that any good law student knows that almost all rules have exceptions.
In the event that a child wants a vaccine without parental or guardian consent, experts admit this would be a very challenging situation. Dr. Adam Kassam suggests that this decision could be determined by a family doctor—Dr. Dubey says that the child’s family physician would be the best resource in this matter since a physician would do a heightened assessment to determine if the child has a complete understanding of what they are agreeing to. Due to the possibility that the hypothetical I mentioned could occur, some health clinics in Ontario require parental consent for the five to eleven age group, because nurses and immunization administrators are not equipped with the expertise to carry out a heightened assessment on children.
Until youth and children became eligible for COVID-19 vaccinations, the importance of Ontario’s Health Care Consent Act was quite often overlooked. Today, the Act has become highly relevant to the everyday lives of Canadians, as it provides youth, and possibly children, the autonomy to make their own decisions in the midst of what feels like a never-ending pandemic. Regardless of the way it is received, the legislation providing individuals with autonomy over their own medical decisions protects the human rights of the young and the elderly to maintain control over their bodies. It seems as though Ontarians, like law students, must get comfortable with the type of ambiguity the law has to offer.