A lot we have spoken about consent and capacity now the time comes where we should discuss who may consent? Well, in Canada-Ontario the age of consent is 16 years but Section 23 discusses this very aspect of consent and clarifies all incidental and consequential questions pertaining to the same. Section 23 says that if PHIPA or any other act requires consent of an individual to a collection, use, or disclosure, by a health information custodian of personal health information of an individual then a person described as below may give, withdraw, withhold the consent-
- When the individual is capable of consenting (collection, use, disclosure) the individual may understand
- When an individual is at least 16 years of age he/she may consent,
- Any person capable of consenting, whom an individual has authorized in writing to act on his/her behalf and
Now the question comes; what will happen when an individual is below 16 years of age?
In case when an individual is less than 16 years of age then a parent of the child or children’s aid society. Here there is a trick and PHIPA clarifies that parent does not include a parent who has only a right of access to the child.
Further, any person entitled to give or refuse the consent in substitution of parent may consent unless the information relates to –
I) treatment as per the meaning given under Health Care Consent Act,1996 and with respect to the same child has made a decision as per his/her own in accordance with the said act.
II) counselling where a child has participated on his/her own under the Child, Youth & Family Services Act, 2017.
There is another case where an individual is deceased then in such a situation the deceased’s estate trustee or any other person who assumes the responsibility for the administration of the deceased’s estate.
In other scenarios any person whom an act of Ontario or Canada authorized or required to act on behalf of that individual, may consent for the same.
Factors to be considered for Consent: A person who consents under PHIPA or any other laws on behalf or in substitution of an individual for use, collection or disclosure of personal health information by a health information custodian, who withholds or withdraws such a consent or who provides an expressed instruction shall take into consideration the facts provided under section 24.
Picture Credit-https://teenhealthsource.com/