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Protecting the Rights and Interests of Competent Minors in Litigated Medical Treatment Disputes

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Protecting the Rights and Interests of Competent Minors in Litigated Medical Treatment Disputes Fordham Law Review Volume 64 Issue 4 Article 35 1996 Protecting the Rights and Interests of Competent Minors in Litigated Medical Treatment Disputes Susan D. Hawkins Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Susan D. Hawkins, Protecting the Rights and Interests of Competent Minors in Litigated Medical Treatment Disputes, 64 Fordham L. Rev. 2075 (1996). Available at: https://ir.lawnet.fordham.edu/flr/vol64/iss4/35 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. NOTE PROTECTING THE RIGHTS AND INTERESTS OF COMPETENT MINORS IN LITIGATED MEDICAL TREATMENT DISPUTES Susan D. Hawkins INTRODUCTION In 1994, Billy Best, a sixteen-year-old cancer patient from Norwell, Massachusetts, ran away to Texas to avoid continuing his chemother- apy treatment, even though his parents had consented to the treat- ment for him.1 In another highly publicized case, fifteen-year-old Lee Lor fled her home in Fresno County, California after police, paramedics, and social workers "dragged her from her home and forced her to undergo chemotherapy for ovarian cancer."2 Her par- ents had refused to consent to the necessary treatment,3 a decision with which Lee agreed, due to "her fears and her Hmong family's sus- picion of Western medicine."4 These cases are just two examples of situations in which a minor has experienced pressure to undergo med- ical treatment against the minor's wishes. Other disputes have also arisen when parents refused to consent to medical treatment for their minor child, despite that the minor herself had expressed a desire to undergo the treatment.5 In the United States, minors are generally considered legally incom- petent to consent to or refuse most forms of medical treatment.6 Par- ents generally have the sole authority to decide whether their children will receive such treatment, and a physician may not treat a minor without the consent of the minor's parent or guardian.7 Conse- quently, when the views of the minor and her parents concerning 1. Richard A. Knox, Billy Best's Case Reveals Gray Area of PatientRights, Bos- ton Globe, Nov. 23, 1994, at 1, 19. 2. Kathryn D. Perkins, Kids Asserting Rights in Health Care: Support Grows for Choice in Treatment, S.F. Examiner, May 1, 1995, at B10. 3. Alex Pulaski, Social Workers Meet with Hmong Family: The Big Question Is if Authorities Will Let Daughter Return to Her Parents,Fresno Bee, Oct. 15, 1994, at B2. 4. Perkins, supra note 2, at B10. 5. See, e.g., In re Hudson, 126 P.2d 765, 768 (Wash. 1942) (discussing case of 12- year-old girl with a deformed left arm who had "many times expressed the wish for removal of the ... arm and frequently wept because of her affliction," but whose mother refused to consent to amputation). 6. See Garry S. Sigman & Carolyn O'Connor, Explorationfor Physicians of the Mature Minor Doctrine, 119 J. Pediatrics 520, 521 (1991); Matthew S. Feigenbaum, Comment, Minors, Medical Treatment, and InterspousalDisagreement Should Solo- mon Split the Child?, 41 DePaul L. Rev. 841, 851 (1992). 7. See Sigman & O'Connor, supra note 6, at 521. Of course, as an exception to the general rule, physicians are permitted to render medical treatment to a minor without parental consent in an emergency situation. Id- 2075 2076 FORDHAM LAW REVIEW [Vol. 64 medical treatment differ, or when the state steps in to compel medical treatment over the parents' and the child's religious or other objec- tions, the wishes of the minor receive little or no deference if the case is litigated in court. Despite this phenomenon, the United States takes pride in its "rights-based" legal culture. The function of the U.S. legal system is "to enable individual litigants to enforce, protect, and preserve their own legal rights."8' The ability to exert control in the decision-making process when personal interests are at stake lies at the heart of the American legal system and its commitment to protecting personal legal rights.9 Adolescents like Billy Best, Lee Lor, and others, how- ever, are routinely excluded from the treatment decision-making pro- cess when their health and bodily integrity are at stake. The extent of children's legal rights is an issue that has engendered much debate. At one time, children in the United States were re- garded simply as the chattel of their parents, or, more accurately, of their fathers.' ° The law relating to children focused not on their rights, but on the rights of adults with respect to their children." Churches and other charitable organizations provided the little pro- tection that was available to minors out of moral obligation.'2 With the advent of industrialization, social reformers, who believed that "children needed to be rescued from the effects of the industrial revolution," initiated a movement to protect children. 13 These re- formers made some advances in the area of children's rights by advo- cating the passage of child labor laws, compulsory education laws.' 4 and recommending rehabilitation rather than punishment for delin- quent children.' 5 Since that time, however, the recognition that chil- dren have rights equal to those of adults has evolved very gradually. In fact, the recognition of children's rights under the law truly began as late as the 1960s, when the Supreme Court finally recognized that the Constitution6 provides clear authority for the protection of chil- dren's rights.' 8. Martin Guggenheim, The Right to Be Represented But Not Heard: Reflections on Legal Representation for Children, 59 N.Y.U. L. Rev. 76, 79 (1984). 9. Id. at 80-81; Shannan L. Wilber, Independent Counsel for Children, 27 Fain. L.Q. 349, 353 (1993). 10. Hillary Rodham, Children Under the Law, 43 Harv. Educ. Rev. 487, 489 (1973); Marvin R. Ventrell, Rights & Duties: An Overview of the Attorney-Child Cli- ent Relationship, 26 Loy. U. Chi. L.J. 259, 261 (1995). 11. See Ventrell, supra note 10, at 261. 12. Id. at 261-62. 13. Id. at 262; see also David J.Rothman, Conscience and Convenience: The Asy- lum and Its Alternatives in Progressive America 205-12 (1980) (discussing the influ- ence of the progressives on the adoption of child welfare measures in the United States, most notably, the creation of juvenile courts). 14. Rothman, supra note 13, at 206-07 (discussing labor and education laws). 15. Ventrell, supra note 10, at 262 (discussing rehabilitation as an alternative to punishment). 16. Id. at 264. 1996] MINORS IN MEDICAL DISPUTES 2077 The Supreme Court has held that minors are entitled to constitu- tional protection in a number of circumstances. 17 In addition, the Court has extended to minors the fundamental rights of privacy and bodily integrity in the contraception'" and abortion contexts.' 9 In keeping with this trend of affording children greater protection under the Constitution, a competent minor's right to make certain medical decisions for herself should receive protection in most instances as well.2" If a minor has the right to choose to undergo such an invasive procedure as an abortion,21 then certainly she should have the right to refuse or accept other forms of medical treatment on her own behalf. Once courts recognize that minors possess rights, the courts must address the related issue of whether minors should have access to counsel to assist in protecting and enforcing their rights. Many mem- bers of the legal community agree that children should have some form of independent representation when their interests are at stake; however, they have not reached a consensus as to the proper 17. The Supreme Court has extended due process protections to minors in both criminal and civil contexts. Minors also possess other civil rights and civil liberties guaranteed by the Constitution. See infra notes 107-18 and accompanying text. 18. See, e.g., Carey v. Population Servs. Int'l, 431 U.S. 678, 681-82 (1977) (striking down a New York statute that prohibited the distribution of nonmedical contracep- tives to persons age 16 or over except through a licensed pharmacist and that entirely prohibited their distribution to persons under 16 years of age). 19. See, e.g., Bellotti v. Baird, 443 U.S. 622, 651 (1979) (invalidating a Massachu- setts statute requiring parental consent or court order before an abortion can be per- formed on an unmarried woman under the age of 18); Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976) (holding that a state "may not impose a blanket provision... requiring the consent of a parent or person in loco parentis as a condi- tion for abortion of an unmarried minor during the first 12 weeks of her pregnancy"). For a full discussion of the facts and the Supreme Court's reasoning in the contra- ception and abortion cases involving minors, see infra notes 163-85 and accompanying text. 20. This Note does not argue that minors should have the right to make all medi- cal decisions on their own. For example, a minor should not be able to demand a certain procedure, such as cosmetic surgery, simply because she wants it. Rather, this Note addresses the right of minors to participate in treatment decisions that are medi- cally necessary, either to save or prolong the minor's life, such as chemotherapy or blood transfusions, or to enhance substantially the minor's health and well-being.
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