KIDS
August 8, 2012

Who's the Decider?

Jessie Hill, J.D.
Can a child or teen seek medical treatment without parental consent? Maybe. It pays to know the issues.
Jessie Hill is Professor of Law, Case Western Reserve University School of Law, Cleveland, Ohio.

A complex patchwork of laws governs the medical treatment of minors. Though many aspects of children’s medical care are straightforward and require no more than the informed consent of the parent, in some areas the law creates numerous potential pitfalls for parents and clinicians who care for children and adolescents. In addition, the legal rules themselves may at times be amorphous or inconsistent.

Before reading further, it is recommended that you read our disclaimer.

Parents' Right to Consent

It is useful to have an overview of the legal rules concerning medical decision-making by and on behalf of children and adolescents, and to be aware of the related issues of confidentiality and the ethical obligations that can come into play. Because the rules vary significantly state-by-state, it is not possible to give detailed information about each state’s laws here.

The age of majority is 18 in most states, although in a small number of states it is higher.

Before the mid-twentieth century, minors were largely considered incapable of providing legal consent to medical treatment, and parental consent was therefore required in all cases. The only exception to this rule was in the case of emergencies—when consent was generally not required from adults either.

This presumption of minors’ incapacity to consent—and of parents’ right to consent or withhold consent on their behalf—endures today as a general background rule that will apply in the majority of cases. In general then, parents are "free to sort among alternatives and elect the course of treatment based on his or her assessment of the child’s best interests.” This rule applies to any patient below the age of majority, which is 18 in most states, although in a small number of states it is higher. As society has evolved, however, the rule has become riddled with exceptions, which aim to protect minors’ privacy and bodily integrity, safeguard the public health, and respect older minors’ adult-like autonomy and decision-making ability.

Exceptions: When Minors Can Give Consent
There are, however, various legal rules that allow minors to consent to their own medical treatment regardless of their parents’ wishes. These fall into several categories, and each will be discussed in detail in the sections that follow.
  • First, there are exceptions in situations where requiring parental consent might reduce the likelihood that a minor would seek treatment, such as for certain sensitive types of medical conditions such as mental health issues, substance abuse and conditions pertaining to reproductive health.
  • The second category of exception to the general rule of parental consent consists of laws that permit certain older minors—minors who are sufficiently “adult-like”—to make their own health care decisions. This category includes the related, but distinct, “mature minor” and “emancipated minor” rules discussed below.
  • Third, as in the case of adults, consent is not needed from minor patients when a medical emergency exists.
  • Fourth, medical neglect and general child neglect laws limit parents’ ability to withhold consent for medically necessary care, even when the decision is based on sincerely held religious beliefs.

Sensitive Categories of Treatment: Mental Health, Reproductive Health and Substance Abuse

All states have laws that create exceptions to the general rule of parental consent, thus allowing minors to consent to some specific types of medical treatment. These specific exceptions are justified primarily by the concern that minors will avoid seeking care for certain particularly sensitive conditions if they are legally required to involve their parents. For example, all fifty states and the District of Columbia permit minors to obtain testing and treatment for sexually transmitted diseases on their own. Importantly, some states include HIV in the category of sexually transmitted diseases for purposes of testing but not treatment.

The ability of minors to consent to treatment for themselves does not necessarily mean that their parents lack the ability to require them to submit to treatment.

Minors can also give their own consent in many states without their parents’ input regarding reproductive health services such as contraceptive services and prenatal care; drug and alcohol abuse treatment; and outpatient mental health services. Many of these laws limit the permission to minors over a certain age (usually 12 or 14). In addition, the ability of minors to consent to treatment for themselves does not necessarily mean that their parents lack the ability to require them to submit to treatment.

Substance Abuse Treatment
When it comes to substance abuse treatment, in some states laws make it clear that minors can consent to treatment, but also that they cannot refuse consent for such treatment if it is authorized by their parents. This is consistent with the understanding that laws allowing minors to consent to treatment in this area are intended primarily to encourage them to seek such treatment, rather than to empower them to exercise decision-making autonomy.

Abortion
Unsurprisingly, abortion is treated somewhat differently. A slim majority of states —twenty-six— have laws requiring parental consent for almost all minors seeking abortions, and several other states require parental notification. The Supreme Court has said a minor woman has a constitutional right to have an abortion without parental involvement if she is sufficiently mature or if it would be in her best interests. However, in states where parental notification or consent is required by law, that requirement can be avoided if the minor goes to court and gets a “bypass” order from a judge, stating that she is legally allowed to consent to the abortion without involving her parents.

As you can see, there are numerous legal exceptions to the rule that parents are in charge of making decisions regarding minors' health care. Most of these exceptions exist in the realms of reproductive health care, substance abuse treatment and mental health services. It is important for parents – and doctors -- to realize, however, that the laws vary in their details from state to state, and most states permit minors to consent to treatment in some, but not all, of these categories. Therefore, it is important to be aware of the laws of the state where you live.

For doctors, the issue is that even if a minor is empowered by state law to give consent, they still need to ensure that the minor is intellectually and emotionally capable of giving informed consent. Thus, even if there is no age limit under state law or the age limit is very low, at times doctors may find it is inappropriate to allow a minor to consent to his own care if he is too immature or otherwise incapable of understanding the procedure’s risks, benefits and alternatives.

Confidentiality and Payment Issues
The fact that minors can consent to their own health care in certain areas does not always mean that they have a right to confidentiality with respect to that care. Under HIPAA, practitioners are basically required to follow state law regarding confidentiality for minors, and they are given discretion over parental notification when state law is silent on the issue.

Most states either protect the consenting minor’s confidentiality or leave the notification decision to the discretion of the treating physician.

When minors are permitted to consent on their own to a particular procedure, most states either protect the consenting minor’s confidentiality or leave the notification decision to the discretion of the treating physician. With respect to drug abuse counseling, however, federal laws and regulations create stronger confidentiality protections for minors. Substance abuse treatment providers should determine whether the federal confidentiality regulations govern their institution and how those regulations interact with their state’s laws.

Special confidentiality rules also apply to particular federally-funded programs. Services subsidized by Title X, the federal family planning funding program, are provided to both minors and adults confidentially in accordance with federal law. For minors covered by Medicaid, confidentiality in accessing family planning services is likewise required. Because services provided under these programs must be provided confidentially, it follows that parental consent cannot be required.

Finally, issues of both consent to care and confidentiality may be complicated by the question of payment. Although the issue of payment is beyond the scope of this article, it is one that obviously must be treated with sensitivity when minor patients are involved.

Emancipated and Mature Minors
Another class of minors who may consent to medical treatment on their own is that of emancipated or mature minors. “Emancipation” and “maturity,” for legal purposes, are distinct but related concepts. Both refer to a minor’s quality of being sufficiently adult-like to be competent to make decisions independently. Yet each has separate legal requirements, and not all states recognize the category of “mature” minors.

Emancipated Minors
Minors who are essentially independent from their parents are generally considered by the legal system to be emancipated. The would include those who are in the military, those living apart from their parents and supporting themselves financially, and those who are married or are themselves parents.

Incarceration is sometimes an indicator of emancipation as well. Minors who are themselves parents usually have the authority to consent to care for their children, as well as for themselves. In addition, one state -- Arizona -- specifies that homeless minors may consent to their own care. In some states, minors must be of a certain minimum age (such as 15) to be considered emancipated, even if they are living independently. Although emancipation sometimes must be determined by courts on a case-by-case basis, many states have explicit statutes listing the requirements for emancipation, thus providing considerably more guidance and certainty for practitioners.

Mature Minors
Mature minors are another class of minors who have been recognized by courts as capable of independent medical decision-making. The “mature-minor rule” applied by courts focuses on the minor’s capacity to give informed consent and, unlike the determination of emanicipation, the mature-minor determination does not depend primarily on external markers of independence. Instead, a minor’s “age, ability, experience, education, training, and degree of maturity,” as well as the minor’s demeanor and the level of risk associated with the procedure may all figure into the decision whether a minor is “mature.”

Not all states, however, have recognized the mature-minor exception to the rule that unemancipated minors may not consent to health care on their own. In a few states, the characteristics of mature minors are set out in statutes. For example, in Arkansas, “any female, regardless of age or marital status,” can give consent for medical care for herself in connection with pregnancy or childbirth, “except the unnatural interruption of a pregnancy,” and “any unemancipated minor of sufficient intelligence to understand and appreciate the consequences of the proposed surgical or medical treatment or procedures” can give consent for general medical treatment. Whether specified by statute or simply adopted by courts, however, the standards for deciding who is and who is not a mature minor are notably murky. For this reason, practitioners may be justifiably reluctant to rely on the application of the mature-minor rule in a borderline case.

Emergencies
Informed parental consent is not generally required for minors in emergency situations. (Of course, informed consent is generally not required for adults in emergencies, either.) The emergency exception is sometimes codified in a specific state statute, but even where there is no statute, courts imply an exception to the requirement of informed consent where exigent circumstances require immediate treatment. An emergency, for legal purposes, is generally understood to be a circumstance in which immediate treatment is required to avert serious pain and suffering or an imminent danger to the minor’s life or health.

Children who have been abused or neglected may generally be examined without parental consent.

Several states have laws that apply specifically to minors who have been sexually assaulted, permitting examination and treatment upon receiving consent of the minor rather than the parent. In most cases, however, treating physicians are required to notify or attempt to notify a parent or guardian, unless there is reason to suspect that a parent or guardian perpetrated the assault. Similarly, children who have been abused or neglected may generally be examined without parental consent. Even where there is no law specifically addressing sexual assault or child abuse, however, minors in those circumstances may still fall under the emergency exception to the parental consent requirement.

Abuse and Neglect
Parents are also limited in their authority to refuse consent for medical treatment that is necessary to preserve a child’s life or health. On rare occasions, a parent may seek to deny medical care to a child, for religious or other reasons. Parents, acting on behalf of their children, have authority to decide among reasonable treatment choices; they do not, however, have authority to deny lifesaving or medically necessary care. On the contrary, they are generally required by law to provide adequate health care. A child’s refusal of care for her own religious reasons may command respect, however, if the minor is sufficiently mature. Parents cannot refuse immunization for their children, unless their reason for refusing (such as religious belief) is allowed by state law. Most states do, however, provide such exemptions, and some go so far as to allow parents to refuse vaccination for virtually any reason whatsoever.

When Court Orders Are Required
There are some situations in which neither parents nor children can authorize treatment. These are situations in which there is reason to doubt the usual presumption that the parents are in the best position, and the most likely, to act in the best interests of their children. A court order is required, for example, for sterilization of mentally incompetent children because of the concern that parents may be seeking to protect themselves from the burden of rearing an unwanted grandchild, rather than protecting the child’s wellbeing. In addition, where parents seek to have a minor child donate an organ to a sibling, or to undergo any other significantly invasive medical procedure for the benefit of another child, court involvement should be sought.

Legal Issues Confronting Doctors Regarding Consent

Sometimes, a physician’s ethical obligation to her patient may conflict with her legal duties. A parent may wish to decline a treatment that both physician and child believe is in the child’s best interests, for example. Although the physician is ethically obligated to act in the patient’s best interests, she may be legally required to obey the parent’s wishes.

Of course, it is hoped that such conflict can be avoided in most cases through effective communication with the parents. Nonetheless, it is important to be aware of the potential consequences of forsaking one’s legal responsibilities in this area. Those consequences can include civil liability, professional discipline, and even —in some rare cases— criminal sanctions.

Traditionally, touching another person without the required consent (including for purposes of medical treatment) constitutes the tort of battery, and this theory remains viable in several states.

Physicians who fail to secure the proper consent for treatment may be held liable to the parents of a minor in a civil suit on a number of different legal theories. Because of the serious legal consequences that may flow from a failure to secure proper consent to medical treatment, physicians facing difficult situations may wish to obtain a court order authorizing the disputed treatment, when practicable. Traditionally, touching another person without the required consent (including for purposes of medical treatment) constitutes the tort of battery, and this theory remains viable in several states.

Physicians may also be held liable for negligence or medical malpractice if they improperly fail to secure parental consent or fail to provide all of the information necessary for informed parental consent. In some states, physicians may also face professional disciplinary action for failing to follow consent requirements. Notably, many states also impose criminal penalties on physicians who perform abortions on minors without following legal requirements pertaining to consent or notification. Clinicians should therefore ensure they have secured proper consent before proceeding with treatment upon a minor patient.

It is more difficult to discern the proper course of action when a minor seeks to refuse care, rather than to access it. A physician is not expected to perform an abortion on an objecting minor even if her parents wish it. Similarly, sterilization of an incompetent minor on a parent’s request usually must be performed only pursuant to a court order. With respect to minors facing end-of-life decisions, the landscape may be more complicated, and physicians should proceed with caution and on professional legal advice, but a minor’s maturity and decision-making capacity generally should be taken into account in the case of a conflict between the minor’s wishes and the parent’s.

As noted above, there are many situations that obviate the need for parental consent such as emergencies. A physician cannot be held liable in an action stemming from the failure to obtain consent if an emergency was present, for example, or if the minor is considered mature under state law. Of course, a physician can still be held liable under a malpractice or other negligence theory if the procedure itself was negligently performed.

In addition, denial of care immediately after birth to very premature and severely disabled newborns has become a politically charged issue in recent years, and in this domain, again, it is necessary to proceed with caution and full awareness of the legal rules that pertain to one’s institution. Withholding care, even when desired by the parents, may violate state law.

Much research has been conducted on adolescents' ability to make decisions, and ethical principles often strongly push practitioners toward involving older minors in their own care in the form of securing assent, if not consent.

In addition, under the so-called “Baby Doe Rules,” physicians who decline to provide medical treatment, hydration or nutrition to severely disabled newborns based on quality-of-life considerations may jeopardize their institution’s receipt of federal funds even if the physician has acted in compliance with the parents’ wishes. Moreover, state laws pertaining to late-term pregnancy terminations sometimes require reasonable medical measures to be taken after an induction to preserve the life of neonates born alive but very premature, again on penalty of criminal sanctions.

Finally, on the other end of the childhood spectrum, much research has been conducted on adolescents' ability to make decisions, and ethical principles often strongly push practitioners toward involving older minors in their own care in the form of securing assent, if not consent. Assent refers to “developmentally appropriate disclosure about the illness, and solicitation of the minor’s willingness and preferences regarding treatment.” The American Academy of Pediatrics strongly advises including children in their own medical decision-making to the extent of their abilities. Outside the context of experimental treatments, however, assent is not legally required.

Conclusion

Medical decision-making by and on behalf of children is a subject that is both ethically and legally complex. State laws vary considerably, and they are often characterized by vague and amorphous standards that may set a trap for the unwary practitioner. In general, physicians should become familiar with the circumstances in which their states’ laws permit minors to consent to medical treatment on their own, in deviation from the usual requirement of parental consent for anyone under the age of 18.

In addition, children should generally be involved in medical decision-making to the extent of their abilities. In the case of a conflict between a minor’s wishes and a parent’s wishes, however, the practitioner needs to proceed with caution; and it is usually wise for them to seek the advice of legal counsel and, in some cases, to proceed to court for a judicial order authorizing the proposed course of treatment.

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