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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.