Canadian Children Discrimination | Free Family Law Essay

The Charter Of Rights Made Canada More Or Less Democratic

Introduction

Canadian courts have only recently begun to address the issue of children's rights under the Canadian Charter of Rights and Freedoms (1982). Drafted explicitly to protect individuals from unjustified discrimination or unwarranted state intrusion in their lives, the Charter is considered the supreme law of Canada (s. 52). Two sections of the Charter are especially significant in matters pertaining to children and the family. Section 15 prohibits any individual from being denied equal protection and equal benefit of the law without discrimination based on race, ethnic origin, color, religion, sex, age or mental or physical disability. Section 7 guarantees life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of "fundamental justice." Embodied within the principles of fundamental justice is the right to "due process" safeguards or procedural protections in situations in which "liberty" or "security of the person" is in jeopardy. It is important to recognize that none of the rights set out in the Charter are absolute. Section 1 allows for the removal of basic rights if such removal is demonstrably justifiable in a free and democratic society (e.g. removal of certain constitutionally guaranteed rights on the bases of immaturity).

Consistent with American jurisprudence, Canadian courts recognize that children have certain constitutionally protected interests that may be asserted against the State and may, in some cases, override the rights of their parents. With respect to rights against the State, there are several instances in which a child potentially faces a State imposed loss of "liberty or security of the person." The most obvious case involves a child's participation in criminal proceedings. Under the Young Offenders Act (1984) suspects and convicts are guaranteed all the rights and freedoms of the Charter of Rights and Freedoms (1982), including procedural protections. Judiciary and parliament has made changes in few policies related to the Charter of Rights. Thus, Charter of Rights has made Canada more democratic.

Child protection proceedings constitute another form of State action in which a child is faced with a potential loss of liberty. In several Canadian provinces child protection legislation recognizes a child's constitutional right to procedural protections (e.g., notice, review, etc.). In Ontario, for example, under the Child and Family Services Act (1984), children 12 years of age and older are given rights of notice and participation, and children under 12 may be accorded such rights at the discretion of the court. Similar legislation exists in Alberta in the form of the Child Welfare Act (1984) which affords children aged 12 and above certain rights of participation including rights of notice, appeal, and direct participation in decision making. Children who are denied such procedural protections may be able to challenge child protection proceedings as violating their liberty and security of the person interests, or their right to equal benefit of the law without discrimination (Bala & Cruickshank, 1986).

Protection For Minors

The apparent willingness of Canadian courts to recognize children's rights under section 7 of the Charter was demonstrated in a Nova Scotia decision. A complaint was made against a 14 year-old ward of the court stating that she was unmanageable, and hence, pursuant to section 55 of Nova Scotia's Children's Services Act (1976), could be committed to the Nova Scotia School for Girls. The judge dismissed the claim stating that because tile complaint was so vaguely worded, the child could not reasonably defend herself and hence, was threatened with a loss of liberty that was not in accordance with the principles of fundamental justice (Re M.B., 1984). The courts have thus opened the door to a consideration of circumstances outside of criminal proceedings in which minors may be afforded the protection of constitutional rights.

The extent to which a child may assert that his/her liberty or security of the person is being infringed upon by his/her parents' decisions or behavior, and hence is entitled to some constitutional protections against their actions, represents a more complex legal issue and one that has been the subject of only minimal litigation (Bala & Cruickshank, 1986). Parents have both a common law and statutory duty to provide care and support for their minor children, including the provision of necessary and beneficial medical care (Osborne, 1989b). This legal obligation necessitates that parents be given the right to direct and supervise their children. Parents are therefore afforded a broad range of powers at common law and by legislation to exercise control over their children in matters of physical and mental health, discipline, education, religious training and even marriage. The Charter recognizes parents' rights to exercise control over their children as an aspect of parental "liberty" or "security of the person" under section 7 of the Charter (Bala & Cruickshank, 1986).

While both parents and children are afforded rights under the Charter, the liberty and security of the person interests of a child as against his or her parents are necessarily subject to certain limitations. As stated previously, parents cannot exercise their obligations with respect to their children without the right to direct their activities. What the courts have yet to determine is the extent to which provisions such as section 1 of the Charter can be used to justify the removal of children's rights (Bala & Cruickshank, 1986). There are certain circumstances in which a child may be able to argue that parental impositions upon liberty or security of the person are neither "reasonable" nor "in accordance with the principles of fundamental justice." The right of minors to consent to or refuse mental health treatment (e.g., voluntary commitment) constitutes one area in which parental interests may conflict with the child's best interest. In situations in which parent-child conflict exists and where the child is not afforded due process protections, the potential for constitutional challenge under section V or 15 is great (Bala & Cruickshank, 1986; Landau, 1986). Depriving a mature adolescent of the opportunity to participate in decisions regarding treatment may constitute a violation of his/her fundamental rights. Thus, Charter of Rights has made Canada more democratic.

Consent Law

The extent to which existing consent law recognizes the right of minors to self-determination and/or procedural protections varies across provinces. In Canada, law is both statutory and common law. The former results "when Parliament and the provincial legislatures enact legislation within their respective jurisdictions" (Osborne, 1989a, p. 11). Common law, on the other hand, is judge-made law developed through judicial decisions based on precedent; Faden & Beauchamp, 1986). While both types of law are relevant to the issue of a minor's right to consent, a common law right of action can be abrogated by statute (Landau, 1986).

Ethical Issues

When faced with the issue of a minor's right to consent to treatment, ethical imperatives often conflict. Health practitioners may be torn between their concern for respecting the autonomy and dignity of their prospective child client, and the wishes and rights of his or her parents, who may under provincial legislation have the right to refuse consent.

The Canadian Code of Ethics for Psychologists (CPA, 1991) advises psychologists to avoid engaging in practices that are unjustly discriminatory (Principle 1, section 9) or inconsistent with the legal, civil or moral rights of others (Principle 1, section 5). The term "moral rights" refers to "fundamental and inalienable human rights which may or may not be fully protected by existing laws and statutes" (CCEP, p. vii). Due process protections and developmentally appropriate privacy are recognized as aspects of an individual's moral rights. Accordingly, failure to provide treatment to a minor who has the capacity to give informed consent might be construed as a violation of ethical principles. Similarly, providing treatment at the request of a parent to a competent minor who has not given consent might also, under section 5 of Principle 1, be considered an ethical, as well as a legal infraction.

While considering the fact that Charter of Rights has made Canada more democratic. The Code further advises psychologists to "carry out informed consent processes with those persons who are legally responsible or appointed to give informed consent on behalf of individuals who are not competent to consent on their own behalf (Principle 1, section 29; CPA, 1991, p. 6). Presumably this would include the parents or guardians of minors who do not have the mental capacity or the legal authority to consent. Where legislation provides for a statutory age of consent, the decision as to whether a child is legally competent to consent is relatively straightforward. In the absence of relevant legislation, the common law dictates that a minor has the authority to consent to treatment if he/she can demonstrate the intellectual ability to arrive at a reasoned decision (e.g., mature minor rule). Based on this legal principle it would appear that a psychologist has both a legal and an ethical obligation to assess his/her minor clients' capacity to consent prior to treatment. Further, in keeping with sections 5 and 9 (Principle 1), a psychologist may have an ethical obligation to respect the right of a "mature minor" to consent on his/her own behalf.

Perhaps the most prudent course of action for a psychologist faced with a "mature minor" who seeks to consent on his/her own behalf would be to explore with the minor the potential advantages of parental involvement. In the event that the minor firmly refused to involve his/her parents, the psychologist may be ethically bound to respect his/her right to self-determination. This course of action recognizes that while consideration must be given to parental rights, the rights of a "mature minor" override those of his/her parents.

Children with oppositional/conduct problems, for example, may be particularly prone to resist treatment From a legal standpoint a psychologist may proceed with services providing that the parents have given an informed consent and that the treatment is in the child's best interest The Code of Ethics, however, advises psychologists to seek the voluntary and adequately informed participation of any person of diminished capacity to give informed consent, and to proceed without this assent only if the treatment will be of direct benefit to the individual. This position is consistent with what Brewer and Faitak (1989) have termed the "informed forced consent" process.

Responsibility To Society

The final principle embodied in the Code of Ethics is that of responsibility to society. In this respect psychologists are advised to recognize that some social structures ignore or oppose the principles espoused in the Code to such an extent that it would be irresponsible not to advocate for change, in keeping with this principle, psychologists might be encouraged to share with the public and policy-makers, their knowledge of children's cognitive capacities, their abilities to participate in decision making, and the rights afforded to them under the Charter.

Perhaps as a function of the lack of comprehensive consent legislation, the Canadian Code of Ethics for Psychologists (1991) is somewhat vague with respect to its standards regarding children, parents and consent. There is clearly a need to develop specific ethical guidelines that directly address the right to consent issue. In 1980, the American Academy of Child Psychiatry undertook such an effort in the form of the Code of Ethics of the American Academy of Child Psychiatry (cited in Enzer, 1985). Of the 17 principles embodied in the Code, several relate to the issue of consent. The Code states that the formal responsibility for decisions regarding the provision of psychiatric treatment usually resides with the parents or legal guardians. While it acknowledges that the minor's agreement is important from a clinical perspective, it is not required ethically. A child psychiatrist is, however, required to inform the unemancipated child or adolescent and to seek their agreement. In situations in which children are accorded statutory rights to consent on their own behalf, "it is the responsibility of the psychiatrist to help the patient recognize the influence of their relationship to family members and the consequences of their decision.

Conclusion

The preceding discussion illustrates the pressing need for legal, developmental and ethically sound guidelines regarding children's rights of consent. Case law to date has established that children have the right to adequate due process safeguards and the right to consent to or refuse treatment if capacity to do so can be demonstrated. With a few notable exceptions (e.g., Ontario's Child and Family Services Act (1984), however, common law principles have generally not been codified in legislative form. The apparent unwillingness of legislators to firmly accept the common law principle or to establish comprehensive consent legislation places the practitioner in a difficult position. The lack of clear ethical guidelines pertaining to children and their families adds to the clinicians' difficulties. Faced with conflicting information and in the absence of relevant consent legislation, professionals may elect to err on the side of caution and require parental consent regardless of their minor client's capacity to consent. In this way we can say that Charter of Rights has made Canada more democratic.

The complexity of this issue necessitates that it be addressed more substantively in the Canadian Code of Ethics. In its present form, the Code's position regarding children and consent is ill-defined. Even if capacity to consent is established and the legal condition to treat thus met, professionals' ethical obligations, when faced with a minor client who seeks to consent on his/her own behalf, are unclear. Revisions to the Code that explicitly recognize the conditions under which children should be granted full rights of self-determination should be considered. Revisions could be made with a view to the "mature minor rule", existing consent and child welfare statutes, such as Ontario's model Child and Family Services Act (1984), and the developmental literature.

Bibliography

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Canadian Children Discrimination | Free Family Law Essay

Introduction

Protection For Minors

Consent Law

Ethical Issues

Responsibility To Society

Conclusion

Bibliography

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