The Legal Authority of Mature Minors to Consent to General Medical Treatment

AUTHORS: Doriane Lambelet Coleman, JD,a,b and Philip M. abstract Rosoff, MD, MAb,c The nature and scope of mature adolescents’ legal authority to con- aSchool of Law, Duke University, Durham, North Carolina; and bTrent Center for Bioethics, Humanities & History of Medicine, sent to general medical treatment without parental involvement is and cDepartments of Pediatrics and Medicine, Duke University often misrepresented by commentators. This state of affairs is further Medical Center, Durham, North Carolina complicated by the law itself, which has developed a broad “mature KEY WORDS minor exception” to the general requirement of parental consent in mature minor, adolescents, decision-making abortion cases and which has additionally carved out numerous Professor Coleman and Dr Rosoff both devised the study and speciﬁc status-based and condition-based exceptions to that require- participated in writing of the manuscript; and Professor Coleman was responsible for the legal research and was ment. In these circumstances, it is not always a simple matter for primarily responsible for drafting the legal analysis. physicians and other medical professionals who treat adolescents to www.pediatrics.org/cgi/doi/10.1542/peds.2012-2470 ascertain the applicable law. In this article, we discuss the underlying doi:10.1542/peds.2012-2470 differences between medical ethics and law, which have caused some Accepted for publication Dec 19, 2012 of the confusion in this area, and we set out the most current legal rules governing adolescent decision-making authority in general med- Address correspondence to: Professor Doriane Lambelet Coleman, School of Law, Duke University, Durham, NC 27710. ical settings. A comprehensive analysis of both statutory and common E-mail: [email protected] law demonstrates that in such settings, parental consent continues to PEDIATRICS (ISSN Numbers: Print, 0031-4005; Online, 1098-4275). be required by most jurisdictions, even when the minor can be con- Copyright © 2013 by the American Academy of Pediatrics sidered cognitively “mature.” Pediatrics 2013;131:786–793 FINANCIAL DISCLOSURE: The authors have indicated they have no ﬁnancial relationships relevant to this article to disclose. FUNDING: No external funding.

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Adolescents present particular chal- the law’s details, they have implied that discuss the consent issues that arise in lengestopediatriciansandotherhealth applicable legal rules either mirror the abortion context, which is gov- workers involved in their care. Not only progressive medical ethics in this erned by a combination of federal are their medical needs unique to their context, or are at least trending in that constitutional law and state common stages of rapid physical development, direction.4,8,9,10,11 They are wrong. In and statutory law that is not applicable but their evolving neuropsychological fact, less than one-fifth of the states (8) in other medical settings. Relatedly, the maturity also poses a moving target for have a broad mature minor exception review is not concerned with other evaluation of their ability to engage in, to the standard requirement of paren- well-understood exceptions to the re- and supervise, their own health care. tal consent. The remainder have no quirement of parental consent, in- One especially vexing problem in these exception at all (34), have significantly cluding emergencies; a minor’s status circumstances is establishing if and narrower or conditioned versions (6), as emancipated, married, pregnant, when adolescents acquire the legal or permit minors of any age to consent enlisted, or incarcerated; and a minor’s capacity to consent or not to diag- to treatment in all or specific circum- ability regardless of maturity to access nostics and treatment in general stances (3). Where it exists, this ex- treatment of contraceptives, mental medical settings; this problem is par- ception is either statutory and thus illness, sexually transmitted diseases, ticularly knotty where the law appears most generally applicable or common- or substance abuse. These instances, to be inconsistent with established law based and thus applicable only on which may have complicated lay ob- ethicalnorms. Itariseswhenparentsor analogous facts. servers’ ability to discern the applicable law, are particularly well described guardians are unavailable at the time To clarify these circumstances, in this in other publications.9,11 medical decisions are being consid- article, we describe the nature and ered, when adolescents disagree with extent of the law’s mature minor ex- their parents or their doctors about the ception to the requirement of parental I. UNDERSTANDING THE LEGAL course of their treatment, or more consent and provide accurate, up-to- CONTEXT AND THE RESULTING simply when adolescents express an date, state-by-state guidance on ado- DISJUNCTION BETWEEN LAW AND independent view about that treatment. lescents’ decisional authority in gen- MEDICINE CONCERNING THE It is well understood in the medical eral medical settings. Specifically, Part TREATMENT OF MATURE MINORS community that adolescents’ aptitude I provides the legal context in which the To the extent that there is confusion to make rational, responsible deci- issue of a mature minor exception is to about the nature and extent of the sions changes over time and that older be correctly understood and analyzes mature minor exception, it appears to teenagers and young adults have sub- the points of disjunction between the be related to a few fundamental mis- stantially similar cognitive capacities.1–3 medical and legal communities’ ap- takes about the law. It is thus useful as These neurobiological facts, together proaches to the capacity of adoles- a threshold matter to make clear the with an increasingly prevalent ethical cents to consent to general medical following. sense that especially older adolescents treatment. Part II provides a detailed First, although one state’s law may deserve to be treated as autonomous accounting of the states that do and do sometimes be influential as another medical decision-makers, have caused not have some version of a mature state is considering its lawmaking some medical professionals to believe minor exception and explains the im- options, state law is only formally ap- that children after ages 12 or 13 who portant points of law associated with plicable in the state at issue. What this appear to be mature have or ought to the various rules at issue. For the means is that one cannot assume from have the right to consent or to withhold states that do have the exception in a judicial decision or statutory allow- consent to general medical treatment. some form, it also summarizes the ance in one state that a different state’s ’ This ethically derived right is often de- exceptions scope and requirements law is the same.12 For example, a case scribed in the medical literature as the and provides citations to the applicable out of Illinois that articulates a persua- “ ” “ mature minor rule or the mature law. The review concludes with legal sive rationale for adopting a mature – minor doctrine.”4 7 advice for medical professionals who minor exception or a statute in Arkan- Several commentators have suggested care for adolescents and other cogni- sas providing that minors have consent that the law generally recognizes this tively mature minors. authority as long as they can meet the mature minor rule; that is, based either Because this review is only concerned informed consent standard says noth- on a mistaken conflation of ethics and with adolescents’ consent authority in ing about the existence or terms of the law or else on a misunderstanding of general medical settings, it does not mature minor exception in other states.

PEDIATRICS Volume 131, Number 4, April 2013 787 Downloaded from pediatrics.aappublications.org at Hospital Library 5H-6 on August 27, 2015 Second, the applicability of a state’slaw The most important of these is probably 18 to state mental institutions. In that to a particular context often depends on that the medical community appears case, the Court explained that its whether that law is statutory (enacted largely to assume a neurobiological and jurisprudence historically has reflected by the legislature) or judge-made (com- developmental approach to adolescent Western Civilization concepts of the mon law). The former is limited only by autonomy, whereas the law’s approach family as a unit with broad parental authority over minor children. . . . this its terms and its compatibility with the is primarily grounded in political theory includes a “high duty” to recognize Constitution and thus has the broadest and attendant constitutional doctrine. symptoms of illness and to seek and potential applicability. The latter is lim- That is, some health care workers may follow medical advice. The law’s concept ’ of the family rests on a presumption that ited by its terms, its compatibility with assume that an adolescents ability to parents possess what a child lacks in the Constitution, and the facts of the case make a health care choice depends or maturity, experience, and capacity for in which the law was developed, and should depend on cognitive capacity judgment required for making life’s dif- ficult decisions. More important, histor- thus it may have much more restricted and social maturity and that as these ically it has recognized that natural applicability.12–14 For instance, a case aptitudes increase, so too does (or bonds of affection lead parents to act in adopting the mature minor exception in should) decisional autonomy; given that the best interests of their children. . . . the context of a 17-year-old Jehovah’s medicine is fundamentally about the The same characterization can be made for a tonsillectomy, appendectomy or Witness who seeks to decline a blood scientific facts, that medical ethics are other medical procedure. Most children, transfusion may not be dispositive of centrally concerned with the exercise of even in adolescence, simply are not able a subsequent case involving a 15-year- personal autonomy conditioned only on to make sound judgments concerning many decisions, including their need for old, an adolescent who is not religiously factual capacity, and that the legal in- medical care or treatment. Parents can motivated, or an adolescent who seeks formed consent standard applicable to and must make those judgments. ...The to accept (rather than to decline) treat- adults is based primarily on capacity, fact that a child may balk at hospitali- zation or complain about a parental re- ment. In contrast, a statute that allows this assumption makes perfect sense. fusal to provide cosmetic surgery does any minor to give lawful consent to It is flawed from the law’s perspective, not diminish the parents’ authority to medical treatment if she can meet the however, because it fails to account for decide what is best for the child.17 informed consent standard will apply one of the most important aspects of Notably, this view of the parental role most broadly to that category of ado- American political theory: the fact that (and of children’s relative incapacity) is lescents unless there is a constitutional individual rights, including parents’ not just a matter of political theory or or other (eg, financial) impediment to rights, belong almost exclusively to federal constitutional doctrine. As this that result. adults. Indeed, children have been excerpt from a recent Alabama Supreme More generally, it appears that much of described as “the Achilles Heel of lib- Court decision involving a 17-year-old girl the disjunction between the medical and eralism” precisely because their consti- illustrates, it is also constituted and legal communities’ views of older ado- tutional status is mostly not as bearers upheld by popular consensus on the lescents’ cognitive capacity and corre- of individual rights.15 ground: sponding autonomy stems from these Thus, although the law considers In such matters as deciding on the need ’ ’ ’ for surgical or hospital treatment, the communities different foundational prin- childrens (including adolescents ) wishes of young children are not con- ciples and objectives. Although law is cognitive capacity and social maturity sulted,nor theirconsentaskedwhenthey often based in or at least compatible for some specific, limited purposes are old enough to give expression (most notably, responsibility for torts thereto. The will of the parents is con- with ethical norms, this is not always trolling, except in those extreme instan- the case. Children’s law, which is appli- and crimes and the abortion decision), ces where the state takes over to rescue cable to individuals from birth to the age generally it does not. Rather, the law the child from parental neglect or to save of majority, is particularly riddled with generally emphasizes and reempha- its life. Similarly, the right to grant or refuse a medical examination of a child important points of diversion. Mainly this sizes parents’ decision-making rights belongs not to the child, but to the is because its constitutional bases are and the “fundamental” role these oc- parents.18 longstanding and strong and thus, unlike cupy in our constitutional order.7,16 In Given the court’s fealty to the political medicine and medical ethics, have not the realm of medical care, the still- propositions that grounded its decision, evolved much over time. Members of the controlling US Supreme Court case it was irrelevant that the child at issue medical community who are interested on point is Parham v. J.R., involving an was on the cusp of the age of majority in the rights of mature and maturing unsuccessful challenge to a state’s and otherwise a world away from bi- minors may thus gain useful insight by scheme permitting parents to commit ological infancy both cognitively and noting 2 of these points of diversion. even their unwilling children under age socially.

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Fealty to these same propositions by instance of this diversion, especially think of this area of the law is as a set citizens across the political spectrum popular in the current period, is the of jurisdiction-specific exceptions to also explains major policy decisions, fact that the law embraces the legal this general requirement. such as why the United States has not fiction of free will even as neuroscience There are, however, a few detectable implemented the United Nations Con- lays the lie to that notion, because it is patterns among the jurisdictions with vention on the Rights of the Child with concerned with deterrence and retri- exceptions. The first is to permit all its requirement that both parents bution in addition to culpability.24 The adolescents above a certain age to and the state recognize the child’s same paradigm obtains as we consider consent to general medical treatment “evolving capacities” and grant them the different ways the disciplines ap- without regard to maturity otherwise; decision-making rights (including med- proach mature and maturing minors; dependingon thejurisdictionthisage is ical decision-making rights) accord- that is, the law embraces the legal 14, 15, 16, 18, or being a high school fi ingly; and it explains relatively minor, ction that childhood is, for most pur- graduate. The second is to permit either related policy decisions such as why poses, a monolithic category of individ- all minors, all minors above a certain most states do not have a mature minor uals aged 0 to 18, all of whom lack legal age (16), or all minors who are mature exception to the requirement of pa- if not cognitive capacity, because its fo- and capable of informed consent to rental consent in general medical set- cus tends to be on the protection of consent to general medical treatment, ’ 25 ’ tings.18–21 Given this context, it is not parents rights. Childrens best inter- but only if their parents are unavailable surprising that most, if not all, statutes ests are not erased in this equation, of or unwilling themselves to provide permitting minors to consent to general course; but the strong legal presump- consent. The third is to permit all ’ medical treatment were motivated not tion is that for the duration of the childs minors who are mature and/or capable by a respect for the autonomy of mature minority, parents are the proper proxy of informed consent to consent to adolescents but rather by a desire to decision-makers with respect to these general medical treatment. interests. limit the liability of health workers who In addition to these patterns, 3 points of care for minors in circumstances in law and associated caveats are mostly which their parents are either unavail- II. THE MATURE MINOR EXCEPTION: A STATE-BY-STATE relevant across jurisdictions, with able or unwilling themselves to consent exceptions. on their children’s behalf. Lobbying to ACCOUNTING AND EXPLANATION First, some states with mature minor A. States That Permit Minors to limit the liability of doctors who prop- legislation distinguish between evalu- Consent to General Medical erly care for children is much more ationsofmaturityandevaluationsofthe Treatment likely to be popular and successful than capacity to give informed consent. The 2 lobbying to limit the rights of parents. As shown in Table 1, 14 states permit concepts are clearly related but also The second point of diversion about mature minors to consent to general distinct (at least in the law). For ex- objectives is closely related. The law is medical treatment either in all or a ample, a minor may have the cognitive keenly interested in, but not exclusively range of restricted circumstances, and capacity to understand the risks and guided by, facts. The most widely known 3 states allow minors regardless of their benefitsofparticular treatmentandthe instance of this diversion is probably age or maturity to consent to treatment necessary will to decide voluntarily to the different ways the disciplines (sci- in either all or limited circumstances. accept or forgo the intervention, but he ence and medicine on one hand and law We hesitate to generalize from these or she may not otherwise present as on the other) approach determinations details because generalization is likely mature based on the indicia of maturity of causation. For science and medicine, responsible, at least in part, for some of typically expected by the courts. Where causation is established only if a high the confusion about the applicability the state requires that both be estab- threshold of proof is met. For law, and scope of the states’ laws on the lished, this minor would not have legal causation is established with this same subject of minors’ consent authority. consent authority. Although the ado- high threshold if the matter is criminal, Indeed, the only accurate generaliza- lescent reproductive autonomy cases but if the case is civil, a 51% likelihood tion is probably that there is no such are not otherwise on point, because will do because the objective is com- thing as “the” mature minor exception they are the only established context in pensationandbecausesocietyissaidto to the general requirement of parental which courts routinely engage the be willing to bear a 49% error rate if the consent, at least to the extent that this analysis of adolescent maturity, the penalty involves money (as opposed to language tends to suggest a broadly indicia they have established for this liberty).22,23 Another commonly known applicable legal rule. A better way to purpose (including age, level of

PEDIATRICS Volume 131, Number 4, April 2013 789 Downloaded from pediatrics.aappublications.org at Hospital Library 5H-6 on August 27, 2015 education, grades in school, work or TABLE 1 Provision for Minors’ Consent Authority by State other extracurricular activities, disci- State Provision for Minors’ Consent Authority and References plinary issues, and future plans) are Alabama By statute, Alabama provides that minors aged $14 have consent useful also to judges seeking to es- authority. No separate evaluation of maturity is required to tablish maturity in other medical set- trigger the exception. Al. Stat. Ann. 22-8-4 Alaska By statute, Alaska provides that minors regardless of age are able – tings.26 30 Notably, age is not the lawfully to consent to medical treatment when their parent is predictable, developmentally based either unavailable or unwilling to consent. Ak. Stat. Ann. criterion in the law that it is in medi- 25.20.025 Arkansas By statute, Arkansas provides that minors who are capable of cine; rather, likely because of abortion meeting the informed consent standard have consent politics, 17-year-olds are often adjudi- authority. No particular age or separate evaluation of maturity cated “immature” by the courts (along is required to trigger the exception. Ar. Stat. Ann. 20-9-602(7) Delaware By statute, Delaware provides that minors regardless of age are with 14-year-olds) even when they are able lawfully to consent to medical treatment where doing well in school, working part-time, reasonable efforts have been made first to obtain parental and thinking about their futures.30 consent. De. Stat. Ann. 707(b)(5) Idaho Bystatute,Idahoprovidesthatminorswhoarecapableofmeeting Second, many states with mature minor the informed consent standard have consent authority. No legislation have parallel legislation that particularage or separate evaluationofmaturityis required to fi trigger the exception. Id. Stat. Ann. 39-4503 absolves parents of nancial respon- Illinois By judicial decision, Illinois provides that a mature minor who is sibility for medical care that is provided capableofmeetingtheinformedconsentstandardhasconsent without their consent, that is, when the authority both to accept and to refuse treatment. Case-by-case only consent provided is by their child.11 evaluations of maturity are required as a threshold matter. In cases of conflict, the courts require “clear and convincing (The 2 predominant rationales for evidence” of maturity. However, because of the state’s parents’ constitutional decision-making interests in life and relevant third parties, even a mature rights are that parents are most likely minor’s informed and voluntary decision to refuse treatment against the wishes of her parent(s) may be ignored. In re E.G., among the potential proxies to make 549 N.E.2d 322 (1989) decisions in children’s best interests Kansas By statute, Kansas provides that minors aged $16 have consent and that they deserve these rights as authority but only in circumstances where no parent is immediately available. Kansas Statutes 38-123b. Additionally, a quid pro quo for taking on the re- Kansas by judicial decision provides that a mature minor who sponsibilities, including the financial is capable of meeting the informed consent standard has responsibilities, of childrearing. In this consent authority. Case-by-case evaluations of maturity are required as a threshold matter. Younts v. St. Francis Hospital quid pro quo context, if the decision- and School of Nursing, Inc. 469 P.2d 330 (1970). The decision in making right is taken away, the corol- Younts has been affirmed on multiple occasions by the state’s lary is that responsibility for the de- attorney general. Opinions Nos. 2003-35; 1992-71; 1991-49 Louisiana By statute and opinion of the state’s attorney general, Louisiana 16 cision is also taken away.) In effect, in allows any minor to consent to any treatment she or he these states, the mature minor excep- believes to be necessary. La. Stat. Ann. 40:1095; 76 Op. Att’y Gen. tion ensures that physicians and any 454 (Mar. 30, 1976) Maine By judicial decision, Maine provides that a mature minor’s health care facility in which the service preaccident statements indicating a wish never to be kept in is provided will not be liable for failure a persistent vegetative state may be determinative of the to obtain parental consent, but it does decision whether to withdraw life support. In re Chad Eric not provide the basis for recovery of Swan, 569 A.2d 1202 (1990). A subsequent decision emphasized the “exceptional circumstances” to which this fees and costs from the parents. Where very limited exception applies. Connolly v. Board of Social this condition exists, unless there is Work Licensure, 791 A.2d 125 (2002) evidence that the parents would not Massachusetts By judicial decision, Massachusetts provides that a mature minor who is capable of meeting the informed consent standard has provide effective alternative care, it is consent authority, but only in circumstanceswhere the minor’s prudenttoassumethatthelegislature “best interests . . . will be served by not notifying his or her hasalsoabrogatedthecommonlaw parents of intended medical treatment.” Baird v. Attorney General, 360 N.E.2d 288 (1977). Mature minors close to the age doctrine that parents are responsible of majority who are religiously motivated may also have the for their children’s medical necessaries. right to refuse medical treatment. In re Rena, 705 N.E.2d 1155 (1999) Third, although it is unlikely in the or- dinary course of a medical practice (where malpractice is not an issue) that

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TABLE 1 Continued consent remains the legal require- State Provision for Minors’ Consent Authority and References ment regardless of the age or matu- Montana By statute, Montana provides that minors who have graduated rity of the adolescent at issue. They from high school have consent authority. Mont. Stat. Ann. 41-1- include Arizona, California, Colorado, 402 Connecticut, the District of Columbia, Nevada By statute, Nevada provides that minors who are capable of meetingtheinformedconsentstandardhaveconsentauthority Florida, Georgia, Hawaii, Indiana, Iowa, but only in circumstances in which the health care worker Kentucky, Maryland, Michigan, Minne- believes that she or he is “in danger of suffering a serious sota, Mississippi, Missouri, Nebraska, health hazard if health care services are not provided.” Nev. Stat. Ann. 129.030 New Hampshire, New Jersey, New Mexico, Oregon By statute, Oregon provides that minors aged $15 have consent New York, North Carolina, North Dakota, authority. Or. Stat. Ann. 109.640. This statute may not apply to Ohio, Oklahoma, Rhode Island, South protect the right of mature minors to refuse treatment. In re Connor, 140 P.3d 1167 (2006) Dakota, Texas, Utah, Vermont, Virginia, Pennsylvania By statute, Pennsylvania provides that minors aged $18 and high Washington, Wisconsin, and Wyoming. school graduates have consent authority. 35 Pa. Cons. Stat. Ann. 10101 Importantly, the fact that these juris- S. Carolina By statute, South Carolina provides that minors aged $16 can dictions do not have a generally appli- consent to all medical treatment except “operations.” SC Stat. cable mature minor exception is not an Ann. 65-3-340. A different state statute provides that a licensed “ ” health worker may provide any necessary medical treatment indication of a gray area in the law. (It to any child (regardless of age) without consent. SC Stat. Ann. has been suggested, for example, that 63-5-530. This provision, which appears to be a version of the the mature minor rule might still exist in traditional emergency exception, also distinguishes “operations.” states that have not yet opined on the Tennessee By judicial decision, Tennessee provides that mature minors who matter one way or the other.11,33)The are capable of meeting the informed consent standard have reason this and the other status- and ’ consent authority. Applyingtort laws traditional rule of sevens, condition-based exceptions are called the state’s courts further presume that minors aged 7 to 13 are not mature and that minors aged 14 to 18 are. Both “exceptions” is that there is a long- presumptions are rebuttable. Cardwell v. Bechtol, 724 S.W.2d standing, comprehensive web of law that fi 739 (1987). The decision in Cardwell was af rmed by the clearly establishes the default require- state’s attorney general in 2003. Tenn. Op. Att’y Gen. No. 03-087 W. Virginia By judicial decision, West Virginia provides that mature minors ment of parental consent. This web of who are capable of meeting the informed consent standard law includes federal constitutional law, have consent authority. Belcher v. Charleston Area Medical state common law of contracts, and state Center, 422 S.E.2d 827 (1992). Belcher cites Tennessee’s decision in Cardwell, but rejects Cardwell’s reliance on the common law of torts. As we explained rule of sevens. in Part I, federal constitutional law has established parents’ rights as “fundamental”, among the most important of parents will have the initiative, energy, which they proceed is one that, like our individual rights; this requires the or funds necessary to seek to enforce the condition- and status-based ex- state to demonstrate a “compelling in- their rights through the courts, it is ceptions, meets the requisite consti- terest” if it wishes to violate them.7,31 It important to note that bypassing par- tutional standard. also specifically provides that medical ents’ decision-making authority can be decision-making is among the rights “fit” risky as a constitutional matter.16,31,32 B. Jurisdictions That Require parents have as against their children,17 Parental Consent for General This is true whether that authority is and establishes abortion as an exception Medical Treatment circumvented by action in the absence to this rule in certain circumstances.34 of or consistent with state law; in the Thirty-four jurisdictions have no ma- (“Fitness” isatermofartinthelaw;fit hierarchy of American law, federal ture minor exception applicable in the parents are parents who have not been constitutional law is supreme. This generalmedicalsetting.Thatis,inthese legally determined to be abusive or ne- does not mean that medical profes- jurisdictions, unless a different and glectful or to have abandoned their sionals should never feel comfortable specific exception applies (eg, for abor- children.) State contracts law typically treating adolescents in the absence of tions;foremergencies; minor’s status as does not permit individuals under the their parents; rather, it simply means emancipated, married, or enlisted; for age of majority validly to contract for that before they do, they should en- treatment of diseases and conditions goods or services with the exception of sure that the state law pursuant to affecting the public health) parental necessaries, and it absolves parents of

PEDIATRICS Volume 131, Number 4, April 2013 791 Downloaded from pediatrics.aappublications.org at Hospital Library 5H-6 on August 27, 2015 financial responsibility for their child- away parental rights are more likely to the courts’ evaluations of maturity in ren’s void or voidable contracts unless, be taken off the books than added on. the abortion and judicial bypass set- again, these are for necessaries. Impor- ting are helpful in detailing the aspects tantly, purveyors of goods or services are CONCLUSIONS of development and experience that generally not entitled to compensation are likely to be relevant in this related from parents for necessaries supplied to Pediatricians and other medical pro- context. These cases suggest that the children in contravention of the formers’ fessionals who care for adolescents maturity test should address aspects should ensure that they are familiar ’ wishes unless they are unwilling or un- of the childs development and expe- with and proceeding according to their rience including age, level of educa- able to provide these themselves.16 Fi- particular state’s laws concerning tion, success in school, engagement in nally, state tort law describes battery as, minors’ consent authority. Most states work or other extracurricular activi- among other things, a medical touching do not permit even mature minors to ties, disciplinary issues, and future that is not preceded by lawful consent. consent to general medical care; pa- plans. This same law typically denies children rental consent therefore remains the Finally, it should be emphasized that authority to provide lawful consent to default requirement in most juris- although the law mostly continues to medical touching.35 dictions. Those states that do have require parental consent in general It is also imprudent to assume that a mature minor exception may provide medical settings, this does not mean a state without a mature minor ex- for broad consent authority, but they there is no role for adolescents’ voices ceptioncanbeconvincedtodevelopone are likely to condition that authority on in medical decision-making or for re- because it already has other condition- a number of grounds including, among lated medical ethics norms that re- or status-specific exceptions to the others, age and parental availability. spect the adolescent as the patient. default requirement of parental con- Additional features of the law may also Indeed, it is likely that in the modern fi sent on its books. The typical statutory be signi cant. For example, depending context, these voices and norms exceptions for minors based on their on the state, proceeding on the basis of largely influence (if not actually dic- ’ status as married, emancipated, or a mature minors lawful consent may tate) most parents’ best interests enlisted, and for minors based on their absolve parents of responsibility for determinations. To the extent this is the associated medical bills. need for treatment of sexually trans- right, the law’s requirement that the mitted diseases, substance abuse, and To protect against liability in states with consent form be signed by a parent is mentalillness, arejustified byseparate, mature minor exceptions that require mostly a formalism. Even parents who fi specific concerns including significant a nding of maturity, medical providers refuse to be team players in this re- public health considerations, all of who treat adolescents on a regular spect, however, cannot cause a physi- basis should consider developing pro- which likely meet the Constitution’s cian to act against his or her ethics. For tocols to ensure (1) that maturity and example, although the law may permit “compelling state interest” test. Al- the capacity to meet informed consent a parent to ignore a mature adoles- though there is a substantial interest in requirements are established in in- cent’s voice and even physically force progressive quarters in ensuring that dividual cases and (2) that appropriate treatment on an unwilling adolescent, all mature minors have access to records concerning maturity, the con- it does not require the child’s physician general health care unrestrained by sent process, and parental availability to partner in either effort. Ethics is parental involvement, this interest is are kept as evidence in the event of thus continually operating in the in- not constitutionally analogous. Indeed, litigation. Because maturity and the terstices of the law. in this period in particular, the politics capacity to meet the informed consent in most states are anything but pro- standard are distinct legal questions, ACKNOWLEDGMENTS gressive; because of this, exceptions the protocol should cover both inqui- We thank Don Beskind, Abigail English, that benefit mature minors and take ries. Although not directly applicable, Kelly Leong, and Elizabeth Scott.

REFERENCES

1. Steinberg L, Cauffman E, Woolard J, Graham the juvenile death penalty, and the alleged 2. Steinberg L. Should the science of adoles- S, Banich M. Are adolescents less mature APA “ﬂip-ﬂop”. Am Psychol. 2009;64(7): cent brain development inform public pol- than adults?: minors’ access to abortion, 583–594 icy? Am Psychol. 2009;64(8):739–750

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3. Albert D, Steinberg L. Judgment and de- 12. Newman RK Jr. Legal Reasoning and Legal 22. Barnes DW. Too many probabilities: statis- cision making in adolescence. J Res Ado- Writing: Structure, Strategy, and Style. 5th tical evidence of tort causation. Law Con- lesc. 2011;21(1):211–224 ed. New York: Aspen Publishers; 2005 temp Probl. 2001;64:191–212 4. Hickey K. Minors’ rights in medical decision 13. Burnham W. Introduction to the Law and 23. Tatman v. Provincial Homes, 382 P. 2d 573 making. JONAS Healthc Law Ethics Regula. Legal System of the United States. 3rd ed. (Arizona 1963) 2007;9(3):100–104; quiz 105–106 St. Paul, MN: West Group; 2002 24. Farahany NA. A neurological foundation for 5. Holder AR. Legal Issues in Pediatrics and 14. Llewellyn KN. The Bramble Bush: On Our freedom. Stanford Technol Law. Rev. 2012;4: Adolescent Medicine. 2nd ed. New Haven, Law and Its Study. Dobbs Ferry, NY: Oceana 11–25 CT: Yale University Press; 1985 Publications; 1960 25. Scott ES. The legal construction of adoles- 6. Silber TJ. Adolescent brain development 15. Coleman DL. Storming the castle to save cence. Hofstra Law Rev. 2000;29:547–598 and the mature minor doctrine. Adolesc the children: the ironic costs of a child 26. In re E.G., 549 N.E. 2d 322 (Ill. 1989) – Med State Art Rev. 2011;22(2):207 212, viii welfare exception to the Fourth Amend- 27. Cardwell v. Bechtol, 724 S.W. 2d 739 (Tenn. 7. Will JF. My God my choice: the mature mi- ment. William Mary Law Rev. 2005;412:414– 1987) nor doctrine and adolescent refusal of life- 540 28. Baird v. Attorney General, 360 N.E. 2d 288 saving or sustaining medical treatment 16. Davis SM, Scott ES, Wadlington W, White- (Mass. 1977) based upon religious beliefs. J Contemp bread CH. Children in the Legal System: 29. Younts v. St. Francis Hospital and School of Health Law Policy. 2006;22(2):233–300 Cases and Materials. 4th ed. New York, NY: Nursing 469 P.2d 330 (Kan. 1970) 8. Arshagouni P. “But I’m an adult now. . . Foundation Press; 2009 30. In re Jane Doe, 566 N.E.2d 1181 (Ohio 1991) sort of”. Adolescent consent in health 17. Parham v. J.R., 422 U.S. 584 (U.S. Supreme care decision-making and the adolescent 31. Troxel v. Granville, 530 U.S. 57 (U.S. Su- Court 1979) brain. J Health Care Law Policy. 2006;9:315– preme Court 2000) 364 18. R.J.D. v. Vaughan Clinic, 572 So.2d 1225, 32. Chemerinsky E. Constitutional Law: Princi- 1227–1228 (Ala. 1990) 9. Campbell AT, English A. Law, ethics, and ples and Policies. 2nd ed. New York, NY: clinical discretion: recurring and emerging 19. Ross LF. Children: Families and Health Care Aspen Law & Business; 2002 issues in adolescent health care. Adolesc Decision Making. Oxford, UK: Oxford Uni- 33. Penkower JA. The potential right of chron- Med State Art Rev. 2011;22(2):321–334, xi versity Press; 2004 ically ill adolescents to refuse life-saving 10. Talati ED, Lang CW, Ross LF. Reactions of 20. Woodhouse BB. From property to person- medical treatment—fatal misuse of ma- pediatricians to refusals of medical treat- hood: a child-centered perspective on ture minor doctrine. De Paul Law Rev. 1996; ment for minors. J Adolesc Health. 2010;47 parents’ rights. Georgetown J Fighting 45(4):1165–1216 (2):126–132 Poverty. 1998;5:313–320 34. Bellotti v. Baird, 443 U.S. 622 (U.S. Supreme 11. English A. State Minor Consent Laws: A 21. United Nations. Convention on the Rights of Court 1979) Summary. 3rd ed. Chapel Hill, NC: Center the Child. New York, NY: United Nations; 35. Dobbs D. The Law of Torts (Hornbook Se- for Adolescent Health & The Law; 2010 1990 ries). Eagan, MN: West Group; 2000

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The Legal Authority of Mature Minors to Consent to General Medical Treatment Doriane Lambelet Coleman and Philip M. Rosoff Pediatrics 2013;131;786; originally published online March 25, 2013; DOI: 10.1542/peds.2012-2470 Updated Information & including high resolution figures, can be found at: Services http://pediatrics.aappublications.org/content/131/4/786.full.ht ml Citations This article has been cited by 1 HighWire-hosted articles: http://pediatrics.aappublications.org/content/131/4/786.full.ht ml#related-urls

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