Adolescent consent to routine medical and surgical treatment: A proposal to simplify the law of teenage medical decision-making

Journal of Legal Medicine

Volumn 22, Issue 4, 2001, Pages 501-532

  Newman, Andrew ^a  

^a Box 261 ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ADOLESCENT; COURT; INFORMED CONSENT; JUSTICE; JUVENILE; LAW; MATURITY; MEDICAL DECISION MAKING; MEDICAL ETHICS; MENTAL HEALTH; PARENT; PATIENT COUNSELING; PREGNANCY TERMINATION; PSYCHOLOGY; RELIGION; REVIEW;

LEGAL APPROACH; PROFESSIONAL PATIENT RELATIONSHIP;

ABORTION, LEGAL; ADOLESCENT; ADOLESCENT PSYCHOLOGY; CHILD ADVOCACY; CRIMINAL LAW; FEMALE; HUMANS; INFORMED CONSENT; PRACTICE GUIDELINES; PREGNANCY; UNITED STATES;

EID: 0035671510     PISSN: 01947648     EISSN: None     Source Type: Journal    
DOI: 10.1080/01947640152750946     Document Type: Review

References (234)

1. The term "emancipated" is used here to describe the various classes of juveniles that can be treated, for purposes of informed consent, as adults. For example, those who are married.
2. Minors can be classified as "mature" for purposes of making a medical decision, either through reliance on state statutes or, in some cases, by judges. See generally infra text accompanying notes 44-57.
3. The juvenile and the criminal justice system are discussed in Section VIII.
4. Id.
5. See Section IX (for the age variations in various states). In Alabama, for example, the age is 14. ALA. CODE § 22-8-4 (2001). Also, in Louisiana, any minor can give consent for medical treatment. LA. REV. STAT. ANN. §540:1095 (West 2000).
6. By routine, the author means those medical and surgical procedures that, by custom, physicians consider generally non-life-threatening. Excluded from such interventions are sexual matters, because of the social/political connotations, as well as end-of-life issues. Also psychiatric disorders are not included. Again here, there are so many complex issues, particularly the danger of suicide that may call for allowing all teens, regardless of age, to seek mental health care. I do include medical examinations and laboratory tests, standard surgical, dental, orthopedic, and podiatric procedures. Examples might be gall bladder surgery, open or closed treatment of fractures, tooth extractions, and bunion surgery. Medical conditions would include such things as pneumonia, gastric problems, dermatologic problems, and so on.
7. Robert L. Holmes, Children and Health Care Dedsion-Making: A Reply to Angela Holder, in CHILDREN AND HEALTH CARE: MORAL AND SOCIAL ISSUES 173 (Loretta Kopelman & John Moskop eds. 1989).
8. Robert L. Holmes, Children and Health Care Dedsion-Making: A Reply to Angela Holder, CHILDREN AND HEALTH CARE: MORAL AND SOCIAL ISSUES 1989). 173 ( Id.
9. GARRETT G. FAGAN, THE HISTORY OF ANCIENT ROME (Audio Series, 1998).
10. GARRETT G. FAGAN, THE HISTORY OF ANCIENT ROME ( 1998). Id.
11. Angela R. Holder, Children and Adolescents: Their Right to Decide Their Own Health Care, in CHILDREN AND HEALTH CARE, supra note 7, at 161.
12. Angela R. Holder, Children and Adolescents: Their Right to Decide Their Own Health Care, CHILDREN AND HEALTH CARE, 161. Id.
13. Susan D. Hawkins, Protecting the Rights and Interests of Competent Minors in Litigated Medical Treatment Disputes, 64 FORD. L. REV. 2075, 2076 (1996).
14. Susan D. Hawkins, Protecting the Rights and Interests of Competent Minors in Litigated Medical Treatment Disputes, FORD. L. REV. 1996). 64 2075( Id.
15. Susan D. Hawkins, Protecting the Rights and Interests of Competent Minors in Litigated Medical Treatment Disputes, FORD. L. REV. 1996). 64 2075( Id.
16. Lee E. Teitelbaum, Children's Rights and the Problem of Equal Respect, 27 HOFSTRA L. REV. 799, 810 (1999) (discussing In re Gault).
17. Tinker v. Des Moines Ind. Comm. School Dist., 393 U.S. 503 (1969).
18. Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).
19. Belotti v. Baird, 443 U.S. 622 (1979).
20. Carey v. Population Services Int'l, 431 U.S. 678 (1977).
21. Teitelbaum, supra note 16, at 813.
22. See supra notes 9-14.
23. Ceceilia Zalkind, Having the Final Say: Children and Medical Treatment, 175 N.J. LAW. 15 (1996).
24. See Hawkins, supra note 13.
25. See id. at 2076.
26. Jessica A. Penkower, The Potential Right of Chronically III Adolescents to Refuse Life Saving Medical Treatments - Fatal Misuse of the Mature Minor Doctrine, 45 DEPAUL L. REV. 1165, 1175 (1996).
27. Id. at 1176.
28. Id. at 1177. Society has determined that, in the case of a true medical emergency (potential loss of life or limb), if the parents cannot be contacted, then denial of medical treatment would be "cruel and unusual."
29. Id. See also Nancy Batterman, Under Age: A Minor's Right to Consent to Health Care, 10 TOURO L. REV. 637 (1994). The author describes the three criteria often recognized as determining emancipation: one who is (1) living separately and apart from one's parents (with or without consent); (2) self-supporting (source of income is not a factor); and (3) managing his or her financial affairs.
30. 431 P.2d 719 (Wash. 1967). The case involved a man attempting to invalidate his previous consent to a vasectomy when he was age 18. The court noted that, at the time he consented (age 21 was the legal age of consent at the time), he was a married 18-year-old with children.
31. Id. at 723.
32. Id.
33. See Batterman, supra note 29, at 662.
34. Id. at 663.
35. VT. STAT. ANN. tit. 12, § 7151 (2001). (a) As used in this chapter: (1) "Emancipated minor" means a minor who: (A) has entered into a valid marriage, whether or not such marriage was terminated by dissolution; (B) is on active duty with any of the armed forces of the United States of America; or (C) has been ordered emancipated pursuant to section 7155 of this title. (2) "Risk of harm" means a significant danger that a child will suffer serious harm other than by accidental means, which would be likely to cause physical injury, neglect, emotional maltreatment or sexual abuse. (b) In order to become an emancipated minor by court order under this chapter, a minor at the time of the order must be a person who: (1) is 16 years of age or older but under the age of majority; (2) has lived separate and apart from his or her parents, custodian, or legal guardian for three months or longer; (3) is managing his or her own financial affairs; (4) has demonstrated the ability to be self-sufficient in his or her financial and personal affairs, including proof of employment or his or her other means of support. "Other means of support" does not include general assistance or Aid to Needy Families with Children, or relying on the financial resources of another person who is receiving such assistance or aid; (5) holds a high school diploma or its equivalent; or is earning passing grades in an educational program approved by the court and directed towards the earning of a high school diploma or its equivalent; (6) is not under a legal guardianship or in the custody or guardianship of the commissioner of social and rehabilitation services; (7) is not under the supervision or in the custody of the commissioner of corrections. See also the Illinois Emancipation of Mature Minors Act, 750 ILL. COMP. STAT. 30/1 (1999), enabling mature minors, as minors age 16-18, who have demonstrated the ability and capacity to manage their own affairs and to live wholly or partially independent from parents or guardians to obtain a judicial declaration of emancipation and thereby control their own medical treatment decisions. For additional insights, see Jeffrey L. McMahon, Minors' Consent to Treatment - Weighing Common Law and Vermont's Emancipated Minors Act, 24 VT. BAR J. & L. DIG. 49 (1998) (noting the statute's "authorization of emancipated minors' ability to consent to medical treatment is implied by its effect on a minor's ability to enter into valid and binding contracts generally").
36. VT. STAT. ANN. tit. 12, § 7151. See also Hawkins, supra note 13.
37. VT. STAT. ANN. tit. 12, § 7151.
38. Id.
39. Walter Wadlington, Medical Decision-Making for and by Children: Tensions Between Parent, State and Child, 1994 U. ILL. L. REV. 311, 324.
40. Walter Wadlington, Medical Decision-Making for and by Children: Tensions Between Parent, State and Child, U. ILL. L. REV. 1994 311 Id.
41. See Hawkins, supra note 13, at 2123.
42. Id.
43. See Michelle Oberman, Minor Rights and Wrongs, 24 J. L. MED. & ETHICS 127 (1996).
44. Michelle Oberman, Minor Rights and Wrongs, J. L. MED. & ETHICS 1996). 24 127 ( Id.
45. Michelle Oberman, Minor Rights and Wrongs, J. L. MED. & ETHICS 1996). 24 127 ( Id.
46. Id. Thus, the author argues that, if we allow minors to make medical decisions that go beyond what society deems appropriate from the standpoint of utility, then we must have a clearer and more scientific view of the nature of adolescent capacity. The subject of capacity is discussed in detail at Section V infra.
47. Hawkins, supra note 13.
48. Oberman, supra note 43, at 130-31.
49. These are also called "minor treatment statutes." All states have statutes allowing unemancipated minors from age 14 to 16 the right to consent to treatment of sexually transmitted diseases. See, e.g., IOWA CODE. ANN. § 139A.35 (West 2000) (allows a minor to consent to treatment of STDs); FLA. STAT. ANN. § 384.30 (West 1996) (states the minor in these cases is to be treated as if he or she has reached majority); ALA. CODE § 22-11A-1 (2001) (indicates that it is not necessary to obtain consent from the minor's parent in the matter of treatment of STDs).
50. See Hawkins, supra note 13, at 2123 (for a good discussion of mature minor statutes).
51. Oberman, supra note 43.
52. Hawkins, supra note 13. See, for example, the case of In re E.G., 549 N.E.2d 322 (Ill. 1989), in which a 17-year-old female had leukemia and refused life-sustaining blood transfusions. The Illinois Supreme Court ruled that the minor had the right to refuse the transfusions and noted that "mature minors may possess and exercise rights regarding medical care that are rooted in Illinois common law." Id. at 326.
53. 443 U.S. 622 (1979).
54. Id.
55. Id. at 644 n.22.
56. Id. at 643-44.
57. In the concurring opinion, Justice Stevens wrote: The only standard provided for the judge's decision is the best interest of the minor. That standard provides little real guidance to the judge, and his decision must necessarily reflect personal and societal values and mores whose enforcement upon the minor - particularly when contrary to her own informed and reasonable decision - is fundamentally at odds with privacy interests underlying the constitutional protection afforded to her decision. Id. at 655 (Stevens, J., concurring) The actual parameters of "maturity" remain elusive. Several commentators have attempted to outline criteria that may be useful. See Penkower, supra note 26, at 1210, who proposes the following factors be considered in determining the maturity of a minor: the minor's age, judgment, education training, ability, and experience; the minor's conduct and demeanor at the time of treatment; whether the minor exhibits the maturity of an eighteen to twenty-one-year-old; whether the minor understands the basic tenets of his or her religion if religion is the basis of the refusal; whether the minor is well enough informed to make an intelligent decision; whether the minor has the capacity to appreciate the risk of the medical procedure administered or withheld; and whether the minor can assess the implication of his or her choice. See also Abigail English, Health Care for the Adolescent Alone: A Legal Landscape, in THE ADOLESCENT ALONE 89 (Jeffrey Blustein et al. eds. 1999). Here, the writer suggests five general criteria a judge could use in his or her evaluation of maturity: (1) the minor is an older adolescent (more than age 14 or 15); (2) the minor is capable of giving informed consent; (3) the care is for the benefit of the minor; (4) the care does not present a high level of risk; and (5) the care is within the range of established medical opinion. For additional insights, see Hawkins, supra note 13, at 2122, where she notes that "in spite of its arbitrariness, chronological age cutoffs do provide a simple convenient means of classifying which people are entitled to the rights and privileg es of society." In view of the obvious vagueness of the maturity criteria, a bright-linerule of age 16 is offered in cases of routine medical treatment. Such cases as chronic serious illness, life-threatening conditions, and complex matters, such as abortion, are discussed briefly below, but only for completeness. Their complicated multifaceted nature does not allow inclusion in the proposal.
58. It is necessary, when looking at case law, to look at the state cases first. The reason for this is that any federal case close to being on point, regarding the issue of adolescent and medical decision-making, tends to focus on procreation matters, particularly regarding the issue of abortion. Sexual matters are discussed below, but the issue of consent and abortion are inextricably linked and are noted below. 59 In re Seiferth, Jr., 127 N.E.2d 820 (N.Y. 1955).
59. Belcher v. Charleston Area Medical Center, 422 S.E.2d 827 (W. Va. 1992).
60. Seiferth, 127 N.E.2d at 820.
61. Id. at 821.
62. Id. at 822.
63. Id.
64. Id. at 823.
65. Smith, 431 P.2d at 719 (focusing on emancipation; in this case, the age of majority at the time was 21 in the state of Washington).
66. Id. at 721.
67. Id. at 723.
68. The author could find no other case or writing that used this approach. At least here, the judges clearly have determined the married minor was emancipated.
69. Smith, 431 P.2d at 723. The court further stated: "The mental capacity necessary to consent to a surgical operation is a question of fact to be determined from the circumstances of each individual case."
70. 469 P.2d 330, 333 (Kan. 1970). In this matter, at the time of the injury, the mother was unconscious. The parents were divorced and the father lived 200 miles away.
71. Id. at 337.
72. Id.
73. Id. See Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941).
74. Younts, 469 P.2d at 337.
75. Id. at 338.
76. Id. Note again, the court is unable to define "maturity" but "seems to know it when it sees it." Obviously, the nonserious nature of the injury, the social situation present here, and the fact that the minor was close to age 18 simplified the court's decision-making process.
77. 292 A.2d 387 (Pa. 1972). This type of matter usually involves multiple issues, including a "freedom of religion" analysis. Here, the focus is on what the court said about the minor's role on deciding what should or should not be done.
78. Id. at 387.
79. Id. at 392 (emphasis added). The court is using the term "custody" (should the parents or the state control who gives consent to the blood transfusions) but the issue presented is whether Ricky should be heard in a custody hearing. The outcome of the custody hearing likely would determine whether or not he received the blood. The court continued: "Moreover, we have held that a child of the same age can waive constitutional rights and receive a life sentence." Id. See also Commonwealth v. Moses, 287 A.2d 131 (Pa. 1971). Minors can bring a personal injury action in Pennsylvania against their parents. Falco v. Pados, 282 A.2d 351 (Pa. 1972).
80. Green, 292 A.2d at 392. The supreme court seems to be leaving it up to an evidentiary hearing by the Court of Common Pleas to determine what Ricky wants. Assuming he also refuses the transfusion, we cannot know from the supreme court opinion what weight this would have as to the ultimate question of whether he gets the needed blood.
81. Id. at 395 (Eagen, J., dissenting). The minority is looking at a homebound child, assuming maturity is related to independence. Again, with no definitive literature to back this up, the dissent is using intuition and emotion to make the leap to lack of maturity. Once again, we see the difficulty of determining "maturity"; thus, a bright-line test would be useful.
82. 530 P.2d 260 (Wash. 1975). Although this is an abortion case and presents some issues not pertinent, it does raise the issue of maturity determination, which is analyzed.
83. WASH. REV. CODE § 9.02.070(a) (1972).
84. Koome, 530P.2d at 262.
85. The Washington Supreme Court noted: Prima facie, the constitutional rights of minors, including the right of privacy, are coextensive with those of adults. Where minors' rights have been held subject to curtailment by the state in excess of that permissible in the case of adults it has been because some peculiar state interest existed in the regulation and protection of children, not because the rights themselves are of some inferior kind.
86. Id. at 263.
87. Id. at 266.
88. WASH. REV. CODE § 26.28.015(5) (West 1997).
89. Koome, 530 P.2d at 267. The court goes on to note that the age limit of abortion will not depend on the statute, using here the age of fertility to determine the practical minimum age.
90. 724 S.W.2d739 (Tenn. 1987).
91. Id. at 739.
92. Id. at 744.
93. Id. at 745.
94. Id. This common-law principle, as articulated in The Queen v. Smith, 1 COX CC 260 (1845), states that, under age seven, there is a no capacity; between ages 7 and 14, there is a rebuttable presumption of no capacity, and between ages 14 and 21, there is a rebuttable presumption of capacity.
95. Cardwell, 724 S.W.2d at 745.
96. Id. at 746. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS 115 (5th ed. 1984).
97. Cardwell, 724 S.W.2d at 746.
98. Id. at 748.
99. Id. at 749. The court noted: We do not, however, alter the general rule requiring parental consent for the medical treatment of minors. We observe here that under the Rule of Sevens, it would rarely, if ever, be reasonable, absent an applicable statutory exception for a physician to treat a minor under seven years, and that between the ages of seven and fourteen, the rebuttable presumption is that a minor would not have the capacity to consent; moreover, the presumption may be rebutted by evidence of incapacity, thereby exposing a physician or care provider to an action for battery. When the court speaks of a presumption, it is still up to a jury in Tennessee using the factors of ability, maturity, experience, education, and judgment to find a minor "mature."
100. Id. at 755.
101. Id. at 749. Again, using the Rule of Sevens, Ms. Cardwell, at age 17 years, seven months, was presumed mature, but the jury still could theoretically hear evidence that she was not sufficiently mature.
102. 549 N.E.2d 322 (Ill. 1989).
103. Id. See also O.G. v. Baum, 790 S.W.2d 839 (Tex. App. 1990). This was a Texas case involving a 16-year-old Jehovah's Witness who had a mangled arm from a train accident and needed surgery to attempt to save the extremity. He refused blood transfusions and the surgeons would not do the surgery if he refused the blood. The parents agreed with the refusal and a conservator was appointed with authority to order the blood. The court noted that the minor relied on the case of E.G. However, Texas had not adopted the mature minor standard and there was no substantive testimony that the minor was mature. Thus, the court found no abuse of discretion on the part of the conservator. In a 1990 New York trial court decision, yet another transfusion case, a 16-year-old needed a transfusion to survive and undergo chemotherapy for a disseminated abdominal carcinoma. The child also was a Jehovah's Witness and refused any transfusions. Again, this was also the wish of the parents. The judge in this matter found much merit to the mature minor doctrine, but beyond that, found that Philip Malcom was not mature. He noted that Malcom had never been away from home, had never dated, consulted his parents before making a decision, and when asked if he considered himself an adult or a child, answered "a child." See In re Application of Long Island Jewish Medical Center, 557 N.Y.S.2d239 (Misc. 1990).
104. E.G., 549 N.E.2d at 325.
105. Id. The exceptions the court refers to include treatment of venereal disease, as well as drug and alcohol addiction. The court also notes that minors under age 16 can be tried and convicted for crimes as adults if they have the appropriate "mens rea." The court goes on to state that there are cases where women under the age of majority have been shown to be mature and can undergo abortions without parental approval. Id. at 326.
106. Id. at 327. Note that this would exclude certain of the exceptions discussed above. These are covered in the Consent by Minors to Medical Procedures Act, 410 ILL. COMP. STAT. § 210/1 (1998) (regarding STDs, drug and alcohol abuse). The court noted that the interest of third parties, particularly parents, is the most important of these factors. If a parent or guardian opposes an unemancipated mature minor's refusal to consent to treatment for a life-threatening health problem, this opposition would weigh heavily against the minor's right to refuse. In this case, for example, had E.G. refused the transfusions against the wishes of her mother, then the court would have given serious consideration to her mother's desires. Application, 557 N.Y.S.2d at 328. As we see here, life-threatening illness raises issues that would tend to dampen the rights of the minor relative to his or her parents, if there is disagreement. For this reason, such conditions cannot be a part of any bright line chronologic rule.
107. In re Swan, 569 A.2d 1202 (Me. 1990).
108. Id. at 1204.
109. Id.
110. Id. at 1202. See also supra note 94.
111. Swan, 569 A.2d at 1205-06. The Maine Supreme Court declared that Chad had been determined by clear and convincing evidence to have made a preaccident decision as to any medical treatment in his current condition and "the court had no other course than to respect the personal decision and to authorize its effectuation."
112. Belcher v. Charleston Area Medical Center, 422 S.E.2d 827 (W. Va. 1992).
113. Id. at 833.
114. Id. at 837-38. The court noted: We agree with the holding of Cardwell, and we believe that the mature minor exception is part of the common law rule of parental consent of this state. It is difficult to imagine that a young person who is under the age of majority, yet, who has undergone medical treatment for a permanent or recurring illness over the course of a long period of time, may not be capable of taking part in decisions concerning that treatment. Clearly, this would be a matter for the jury to decide, and not for this Court to speculate.
115. Id.
116. See, e.g., Seibly, 431 P.2d at 719; Cardwell, 724 S.W.2d at 739; E.G., 541 N.E.2d at 325.
117. See supra note 94.
118. See, e.g., Seibly, 431 P.2d at 719; Younts, 469 P.2d at 300; Cardwell, 724 S.W.2d at 799; Belcher, 422 S.E.2d at 827.
119. Not unlike the situation with a statute of limitations, a person just one day under age 18 in most jurisdictions is still a minor in the eyes of the state.
120. See, e.g., Bellotti v. Baird, 443 U.S. 622 (1979).
121. See, e.g., Carey v. Population Serv. Int'l, 431 U.S. 678 (1977); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). These cases have some pertinent material on minor consent from the federal perspective, including how the court views the concept of an adolescent, under age 18, giving consent to a medical procedure or diagnostic test.
122. 428 U.S. 52 (1976).
123. Id. at 73.
124. Id. at 74.
125. Id. at 73. While it is not readily apparent what becoming pregnant has to do with maturity, there is merit to the overall thrust of this part of the opinion. It seems to place consent to and treatment of abortion in the same category of STDs and drug rehabilitation.
126. 431 U.S. 678 (1977). It may well be that the New York legislature chose 16 years of age because age 16 figured prominently in other statutes then extant in New York that involved procreative matters. "The Court can perceive no fair and substantial basis for distinguishing between persons over and under the age of sixteen years with respect to the use of contraceptives." Population Serv. Int'l v. Wilson, 398 F. Supp. 321, 341 n.20 (S.D.N.Y 1975). Any person, including those under age 16, may be treated for venereal disease without the consent or knowledge of the person's parents or guardian. See N. Y PUB. HEALTH LAW § 2305 (McKinney Supp. 2000). Further, any person under age 16, who is the parent of a child, may consent to any medical services for himself or herself, including services related to subsequent pregnancy. See id. § 2504.
127. Carey, 431 U.S. at 679.
128. 443 U.S. 622 (1979).
129. Id. at 647. These terms "mature" and "well-enough informed," which are never really defined, generally end decided upon based on the discretion of the judge or jury.
130. Id. "Best interests" again is a term of art - not easily defined and will depend on the particular circumstances of the case.
131. 450 U.S. 398 (1981).
132. Id. at 398.
133. Id. at 411.
134. Id.
135. 505 U.S. 833 (1992).
136. Id. at 899.
137. Angela R. Holder, Legal Issues in Adolescent Sexual Health, 3 ADOLESCENT MED. STATE OF ART REV. 257 (June 1992).
138. Id. at 262.
139. Id.
140. See supra note 94.
141. See Elizabeth S. Scott, Judgment and Reasoning in Adolescent Decisionmaking, 37 VILL. L. REV. 1607 (1992). This extensively detailed analysis of the pertinent psychological studies and writings is recommended to those with a particular interest in the subject. The author notes that there is just not enough scientific evidence to come to any valid conclusions.
142. See also Elizabeth Cauffman & Lawrence Steinberg, The Cognitive and Affective Influences on Adolescent Decision-Making, 68 TEMPLE L. REV. 1763 (1995) (for a slightly easier read, but still thorough review, of the same subject).
143. Thomas Grisso & Linda Vierling, Minors' Consent to Treatment: A Developmental Perspective, 9 PROF. PSYCHOL. 412, 416 (1978).
144. Thomas Grisso & Linda Vierling, Minors' Consent to Treatment: A Developmental Perspective, PROF. PSYCHOL. 1978). 9 412( Id.
145. Id. at 416-23.
146. Id. at 416.
147. Id. at 417.
148. Id. at 418.
149. JEAN PIAGET & BÄRBEL INHELDER, THE PSYCHOLOGY OF THE CHILD (1969).
150. Grisso & Vierling, supra note 141, at 418.
151. Id. at 421.
152. Id.
153. Id.
154. Id.
155. Id. at 423.
156. Id. at 423-24. Interestingly, Scott points out that present research, at least to some degree, tends to support the theory that adults and adolescents may have similar capacities to understand information and make rational decisions, but this is only part of the problem. See Scott, supra note 140, at 1636-37.
157. Scott, supra note 140, at 1657.
158. Id. Scott notes: A richer understanding of the decision-making capabilities of children and adolescents relative to adults requires both recognizing the importance of research that does not seem relevant under the informed consent framework and pursuing a broader program of policy-relevant research. Further investigation can inform what is now a sketchy account of how minors and adults compare their use of information, and of how subjective values that drive the cost-benefit calculus differ at different stages of life. Id. at 1657.
159. Id. at 1639. Scott indicates throughout that we live in a society that obviously places a huge value on autonomy. However, she feels, in the case of adolescents, some degree of paternalism may be wise in terms of potential individual and societal good.
160. Id. at 1668.
161. Cauffman & Steinberg, supra note 140, at 1788.
162. Id.
163. By early adolescence, the authors mean up to age 16. Id. In the end, as I have noted in the introduction to this section, we are left with pleas from the authors for more research as to when an adolescent is truly competent to give legitimate informed medical consent. Issues of autonomy, paternalism, anecdotal descriptions of the "typical teenager," and extreme individual variation from teenager-to-teenager, all tend to intermix with attempts to reach scientific certainty (or at least probability). It may well be that, at least as we stand today, with all its potential problems, a "Bright Line Rule of Sixteen," is simpler and fairer than the current system.
164. See, e.g., Penkower, supra note 26, at 1165; Scott, supra note 140, at 1607; Hawkins, supra note 13, at 207; Cauffman & Steinberg, supra note 140, at 1763.
165. William R. Machlin, Juvenile or Adult: Which Justice System Should Apply?, PHIL. INQUIRER, Feb. 27, 2000, § D, at 12.
166. William R. Machlin, Juvenile or Adult: Which Justice System Should Apply?, PHIL. INQUIRER, 2000, 12. Id.
167. Id. The District Attorney of Philadelphia, Lynn Abraham, stated: "I have seen kids very sophisticated in then judgement. Kids today know how to assess risk; they know how to plot and plan." It would seem that the district attorney would opine, by analogy, that because teens have "sophisticated" judgment and know how to assess risk, they certainly would be in a good position to legally determine their own medical treatment.
168. Id.
169. Thomas Grisso, The Competence of Adolescents as Trial Defendants, 3 PSYCH. PUB. POL'Y & LAW 3 (Mar. 1997).
170. Id. at 14.
171. Id. at 18.
172. Id.
173. Id. at 20.
174. Id.
175. Elizabeth Cauffman et al., Justice for Juveniles: New Perspectives on Adolescents' Competence and Culpability, 18 QUINNIPIAC L. REV. 403 (1999).
176. See Cauffman & Steinberg, supra note 140, at 1763.
177. Cauffman et al., supra note 173, at 412.
178. Id. at 406.
179. Id.
180. Id. at 412.
181. Donald L. Beschle, The Juvenile Justice Counterrevolution: Responding to Cognitive Dissonance in the Law's View of the Decision-Making Capacity of Minors, 48 EMORY L.J. 65 (1999).
182. Id. at 68.
183. Id. at 67.
184. Id. at 102-05.
185. Beschle again and again comes back to this tautology, but in the end, cannot reconcile the two opinions, other than falling back on the concept that, perhaps, there is no way of reconciling the two areas of health law/reproductive issues and common law.
186. Id. at 96.
187. Id. at 102.
188. Id. at 103.
189. Id. at 102.
190. Id. at 103.
191. Id. at 104.
192. Id.
193. See, e.g., supra notes 119-21.
194. Id.
195. Holder, supra note 11, at 162-63. See also Robert F. Weir & Charles Peters, Affirming the Decisions Adolescents Make About Life and Death, 27 HASTINGS CENTER REP. 29 (Nov./Dec. 1997) (for a good general summary of the concepts of increased autonomy for adolescents in the health care area). 194 Holder, supra note 193, at 161.
196. Carolyn O'Connor, Illinois Adolescents' Rights to Confidential Health Care, 82 ILL. B.J. 24, 25 (1994). See also 405 ILL. COMP. STAT. 5/3-501 (2000).
197. See Zalkind, supra note 23, at 17. NEW JERSEY STAT. ANN. § 9:17A-4 (2000) states: When a minor believes that he is suffering from the use of drugs or is a drug dependent person... or is suffering from alcohol dependency or is an alcoholic... his consent to treatment under the supervision of a physician licensed to practice medicine, or an individual licensed or certified to provide treatment for alcoholism or in a facility licensed by the State to provide for the treatment of alcoholism shall be valid and binding as if the minor had achieved his or her majority, as the case may be.
198. Richard E. Redding, Children's Competence to Provide Informed Consent for Mental Health Treatment, 50 WASH. & LEE L. REV. 695, 736 (1993).
199. Id. at 736.
200. FAY A. ROZOVSKY, CONSENT TO TREATMENT: A PRACTICAL GUIDE 5:47 (3d ed. 2000).
201. See Jennifer L. Rosato, The Ultimate Test of Autonomy: Should Minors Have a Right to Make Decisions Regarding Life Sustaining Treatment, 49 RUTGERS L. REV. 1, 103, nn. 110-11 (1996).
202. ROZOVSKY, supra note 199, at 5:47. See CAL. CIV. CODE § 25.9 (West 2000); MONT. CODE ANN. § 41-1-406 (2000).
203. 442 U.S. 584 (1979).
204. Id. at 604.
205. Id. at 613.
206. Id. at 611.
207. See ROZOVSKY, supra note 199, at 5:49. See also Zalkind, supra note 23, at 17, who notes the following rule in New Jersey; (c) Voluntary Admission. Irrespective of whether the standard of involuntary commitment stated by this rule is met, any minor 14 years of age or over may request admission to a psychiatric facility, special psychiatric hospital, or children's crisis intervention service provided the court on a finding that the minor's request is informed and voluntary, enters an order approving the admission. If an order approving a voluntary admission of a minor is entered, the minor may discharge himself or herself from the facility in the same manner as an adult who has voluntarily admitted himself or herself. NJ.R. SUPER. TAX SURR. CTS. CIV. R. 4174-7A(c) (2000).
208. Oberman, supra note 43, at 131-32. She does not specify age 16. She does mention that some would feel a 14-year-old minor is competent in health care decision-making.
209. Id. at 133.
210. Id. Oberman is afraid that, if we go to a simplistic approach (an age-based rule), we would ignore the challenges to the various medical, legal, and ethical questions in the area of teen consent, particularly regarding the concept of the mature minor. Id. at 136. She states that "the laws that govern minors are inconsistent and outmoded, the institutions designed to protect the most vulnerable minors are in shambles . . . ." But, she feels we need more answers and research before resorting to an "age based rule." Id.
211. Id. at 133. I would not even include such a case in my "16 year rule." The rule would only be for routine medical and surgical treatment. Cases such as STDs and abortion would be unchanged as to current legal handling.
212. See Hawkins, supra note 13, at 2122.
213. Id.
214. Id. See also Koome, 530 P.2d at 267 (where the Washington Supreme Court noted that the age limit may be arbitrary, but a "subjective inquiry into the maturity of each individual minor is a practical impossibility").
215. Dan Brock, Children's Competence in Health Care Decision-Making, in CHILDREN AND HEALTH CARE, supra note 7, at 207.
216. Dan Brock, Children's Competence in Health Care Decision-Making, CHILDREN AND HEALTH CARE, 207. Id. This is no different from adults who must have sufficient capacity to give appropriate consent. The presumption is that they do have such capacity.
217. Dan Brock, Children's Competence in Health Care Decision-Making, CHILDREN AND HEALTH CARE, 207. Id.
218. Dan Brock, Children's Competence in Health Care Decision-Making, CHILDREN AND HEALTH CARE, 207. Id.
219. Dan Brock, Children's Competence in Health Care Decision-Making, CHILDREN AND HEALTH CARE, 207. Id.
220. See supra § III.
221. I define "routine and standard medical and surgical procedures" to include all elective surgery (except life-threatening conditions requiring immediate surgery, as well as abortions) and all regular diagnostic procedures, biopsies, and tests. Also, regular health care professional visits (excluding psychiatric or sexual matters) are included. Invasive and potentially life-threatening treatments, such as chemotherapy, would not fall under my proposal. See supra notes 1 & 209.
222. I generally would not prefer a bright-linerule favoring consent at 16 y ears of age in determining whether a teen could make a decision regarding potential life-saving measures. In this realm, as common sense would dictate, many adolescents fail to have a good grasp of the concept of mortality and the issue of parental rights. While the minor should have some say in life and death decisions, in most cases the parents must be the ultimate arbiters. Furrowrefers to situations where teens want to forgo life-sustaining treatment: Courts may give some weight to the statements of older children even if those courts are reluctant to declare these children "emancipated." Although it is impossible to find a case where a patient under 16 has been found to be a sufficient mature minor to independently choose to forgo life sustaining treatment, many courts have given considerable weight to the statements made by children considerably younger than that. BARRY R. FURROW ET AL., HEALTH LAW: CASES, MATERIALS AND PROBLEMS 1159 (3d ed. 1997). An excellent example of this judicial view is seen in the well-known situation of Benito Agrela. This 15-year-old boy had received two liver transplants - at age 8 and again at age 14. After refusing to take antirejection medication any longer, the state forcibly removed him from his parents' home and tried to force him to take further treatment. The court allowed him to refuse medication. Before his death, Benito said: "I should have the right to make my decision. I know the consequences, I know the problems." Here, the parent agreed with Benito. However, the minor was given input in the final decision. See Weir & Peters, supra note 193. Penkower, in a lengthy review regarding chronically ill adolescents and their right to refuse treatment, finds "something disconcerting about placing a life or death decision into the hands of a 15-year-old such as Benito Agrela, even if his own life is at stake. She points out that, in the case of a minor who has refused life-sustaining treatment, the first question is "what is in the best interest of the adolescent" and second, "if it is in the best interest of the adolescent, the second inquiry is whether or not the teen is mature." What we are faced with here is the problem of the potentially disastrous results of a minor's decision. While the process is no doubt paternalistic, and does not respect the teen's right to full autonomy, the life or death decision-making aspects of this sort of medical treatment, while always allowing for input from the adolescent, in the end should fall to adult parent(s). See Penkower, supra note 26, at 1204.
223. See supra note 193. In 1971, the 26th amendment to the Constitutionpassed, allowing all those age 18 and older to vote.
224. See Teitelbaum, supra note 16, at 807.
225. See S.C. CODE ANN. § 20-7-280 (Law. Co-op. 2000); KAN. STAT. ANN. § 38-123 (2000); R.I. GEN. LAWS § 23-4.6-1 (1996).
226. See ALA. CODE § 22-8-4 (2000).
227. LA. REV. STAT. ANN. § 40:1095 (West 2000), which reads as follows: Medical treatment: A. Consent to the provision of medical or surgical care or services by a hospital or public clinic, or to the performance of medical or surgical care or services by a physician, licensed to practice medicine in this state, when executed by a minor who is or believes himself tobe afflicted with an illness or disease, shall be valid and binding as if the minor had achieved his majority. Any such consent shall not be subject to a later disaffirmance by reason of his minority. B. The consent of a spouse, parent, guardian or any other person standing in a fiduciary capacity to the minor shall be necessary in order to authorize such hospital care or services or medical or surgical care or services to be provided by a physician licensed to practice medicine to such a minor. C. Upon advice and direction of a treating physician, or, in the case of a medical staff, any one of them, a physician or member, spouse, parent or guardian of any such minor as to the treatment given or needed, and such information may be given to, or withheld from the spouse, parent or guardian without the consent and over the express objection of the minor. D. No hospital and no physician licensed to practice medicine in this state shall incur civil or criminal liability in connection with any examination, diagnosis and treatment authorized by this section except for negligence.
228. Id. The reader may well ask what would happen under this hypothetical in those few jurisdictions in which juveniles under age 16 are allowed to give full consent in medical matters. Again, this represents a small minority of states and I would suggest, because of some questions raised as to the competency of those under age 16 and in support of increased uniformity, that these states raise their age to 16. In special cases, such as sexual matters (including abortion), psychiatric or psychological counseling and treatment, these matters should continue to be given special status. For obvious reasons, in a large percentage of cases, teens even under age 16 may well require the ability to consent independently to these types of medical treatment. See also Holmes, supra note 7.
229. See supra § II.
230. See supra § III. Note that, in most jurisdictions, the judge is dealing with adolescents under age 18. They take into consideration such factors as training, ability, experience, conduct, and demeanor. Perhaps anecdotally, but I believe true, today's average 16-year-old would be considered generally "more mature" than their counterpart of 20 or 30 years ago.
231. See supra § V.
232. See, e.g., Grisso & Vierling, supra note 141, at 416.
233. See, e.g., Cauffman & Steinberg, supra note 140, at 1788.
234. See, e.g., Beschle, supra note 179, at 102-05.