A 17-year-old High school student was driven to therapy appointments by the school chaplain without parents’ permission. Is this even legal?
This question touches on a lot of rights of adolescents under Ontario’s Health and Education Laws.
To start, in almost every situation, someone who is 17-years-old has the right to go to therapy without parental consent. The work of both psychologists and psychotherapists is covered by Ontario’s Health Care Consent Act, 1996 (because those are both self governing health professions). Under section 4 of the Health Care Consent Act, every person is presumed to be able to understand the information relevant to treatment and the consequences for making a treatment decision. There are no age limits on what “person” means, so everyone is entitled to make their own health care decisions (including therapy decisions.) The only exception to this is where the health care professional has reasonable grounds to believe that the person does not have that understanding. A young child or a person with a serious mental illness or a developmental delay may not be able to have that understanding. But, unless the health care professional believes there is a problem, any person, including a child, can consent to treatment, including psychotherapy.
It is also important to note that section 15 of the Health Care Consent Act, 1996 recognizes that a person (including a child) can have the required understanding to consent to one type of treatment even if he or she cannot understand others.
The impact of the Act is that a child can direct the treatment he or she understands, even when there are treatments the child does not understand. Check out this page for more about children directing their own health care.
Note that leading institutions, such as the Hospital for Sick Children (“SickKids”) are very careful to respect the rights of children to direct, or participate in directing their treatment. Additionally, some practice areas, such as Adolescent Medicine Specialists, usually assist older children without the involvement of their parents. So, a child getting therapy without a parent’s permission is not “against the law.”
The Code of Ethics for Canadian Psychologists is consistent with Ontario Law. It does caution psychologists to be careful around vulnerable groups and people who may not have the capacity (such as children), especially when there are multiple people involved in the therapy or aspects of it. But, that is not the case here.
The Professional Standards of Practice for Registered Psychotherapists in Ontario specifically reference the Health Care Consent Act, 1996 and adopt its principals. So, the therapist did not do anything wrong either.
Family Law does not apply to your chaplain because he or she is not acting as your parent. It does not give your parents a right to interfere with your therapy either. Ontario’s Children’s Law Reform Act addresses custody rights when parents are separated. Section 18(2) of that law says the custody provisions apply to children up to the age of 18. The term custody, which will soon no longer exist under Canadian Law, includes the right to make medical decisions. However, that law does not supersede the rights of the child under the Health Care Consent Act, 1996. Section 74(2) of the Child Youth and Family Services Act allows Children’s Aid Societies to intervene when a child is not receiving treatment to prevent the child from suffering harm. That section explicitly states that the Society is not able to intervene when a child has the capacity to make treatment decisions under the Health Care Consent Act. Although, there have been court cases where the Children’s Aid Society has challenged whether the child has capacity.
The Chaplain is not a member of any recognized self-governing profession and is either an employee or a volunteer with the school board or school. Things are little greyer there. Since you agreed to go with the Chaplain, she was not kidnapping you or otherwise committing a criminal offence, but it is not clear that taking you out of school is permitted by the Education Act.
Under section 21 of the Education Act, every person between the age of 6 and 18 is required to go to school every school day. Under section 21(5) of the Education Act, it is the duty of parents to make sure their children do attend school. The Education Act does provide some excuses for not attending school, one of which is because the student is “unable to attend school by reason of sickness or other unavoidable cause.” Your circumstances may or may not have met that criteria. But, the duty of your parents to make sure you attend school probably gives them some right to have a say in whether you can “skip school”. That they were not informed at all, might be a problem.
Depending on which School Board your school belongs to, there may be School Board Policies or insurance requirements that prevent a school employee or volunteer from transporting a student for a non-school related matter. That could get your Chaplain into trouble with the Board. And might have led to bigger trouble if there had been a car accident. However, those would have been internal School Board issues and not necessarily legal ones – unless the Board decided to fire your Chaplain. Under Health Law, Family Law and Education Law, your Chaplain did not do anything that was clearly illegal. And, it may have been the right thing to do for you.
“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”