Capacity for Children to Consent to Participate in Research

The legal age of majority in Alberta is 18. However, depending on the nature of the research, a participant may have the capacity to consent well before the age of majority. Alberta law does not specifically prevent a person under the age of majority from consenting to participate in research. The common law has two well accepted doctrines that are applicable to the consent of minors. The first is the "emancipated minor" doctrine, and the second is the "mature minor" doctrine.

The emancipated minor doctrine provides that persons under the age of majority who are "emancipated" in the sense of living on their own, earning their own income, etc. are generally capable of consent, because they are "emancipated from parental control and guidance."

The mature minor doctrine is a common law rule that takes the varying abilities of young people into account, and recognizes that some minors are able to make decisions for themselves. Generally, at common law, if a minor has reached a level of intellectual and emotional maturity such that he or she is capable of understanding and appreciating the nature and consequences of a particular treatment / decision, together with its alternatives they can be considered capable of consenting. Put another way, if it can be determined that a minor in fact understands the proposed interventions, can properly weigh the risks and benefits of various procedures, understands other courses of action and their implications, and it is not prohibited from consenting by legislation, a minor may give a legally valid consent.

There is some debate concerning whether the mature minor doctrine applies in instances where treatment is not beneficial or therapeutic, but increasingly the "rights of minors" to decide are being recognized, except in the most extreme cases, e.g. life and death situations.

The ability to consent to research is not based upon on a participant's age or whether they have reached the age of majority. Generally, the threshold for recognition of maturity by the Courts is at least sixteen years and none have recognized any individual younger than fourteen years. In accordance with the Tri-council Policy Statement: Ethical Conduct for Research Involving Humans - TCPS2 (2018), capacity to consent to research is premised upon an individual's ability to understand the nature of the research and the consequences of participation in the research project.

The Panel on Research Ethics (PRE) stresses that no two research studies or research participants are the same. Therefore, the researcher plays an important role in determining whether a particular research participant is capable of consenting on their own behalf or whether an authorized third party should be used. Within the same research project, there may be some minors who are capable of consenting and others who are not. The researcher should describe to the REB how the study team will determine capacity to consent to the research for those proposed participants who are under the age of majority. The PRE advises that factors to consider in making the decision to seek consent from children should include the following: the level of risk the research may pose to participants, provincial legislation and other applicable legal and regulatory requirements related to legal age of consent, and the characteristics of the intended research participants. In Alberta, this usually requires the attestation of a parent or healthcare provider or someone with significant knowledge of the child, such as a teacher.