Medical Rights and Children

Medical rights and children is a subcategory of patients' rights that covers issues ranging from individual consent of a mature minor to overriding parental decision to withhold treatment in life-threatening situations. Minors are generally presumed by U.S. law to be insufficiently mature or mentally competent to make medical decisions for themselves. They are considered incapable of giving informed consent to medical treatment, and consequently, either a parent or legal guardian holds the right to decide a child's medical care. However, conflicts can occur when there is disagreement on the best course of treatment for life-threatening illness, and in recent decades, there have been an increasing number of exceptions to the requirement for parental consent. In most cases, the issue arises for adolescents retaining the right to "bodily self-determination" and for younger minors who may be in physical jeopardy based on the medical stance of the legal guardian.

It is within the purview of the state to grant minors limited power in determining medical treatment. In many states, for example, the "mature minor" doctrine has been implemented in cases of minors who engage in adult behaviors to receive medical treatment for pregnancy, contraception and/or venereal diseases without parental consent. The definition of a mature minor is sometimes ambiguous, but it is generally used in cases where (1) the treatment is for the benefit of the minor, (2) the minor is near the age of majority and is sufficiently mentally capable to understand the scope of the treatment and (3) the procedure carries relatively low risk. The conditions on which a minor can give consent to treatment vary from state to state, however. For example, in California, minors can give medical consent if they are married or have been previously married, they have served active duty in one of the U.S. armed forces, they are financially independent or they have been legally emancipated.

The most controversial application of this doctrine has been in the case of abortion for minors without parental consent. In 1976, only three years after Roe v. Wade, Planned Parenthood of Central Missouri sued to apply this doctrine to minors seeking an abortion without parental consent during the first trimester of pregnancy. The Supreme Court ruled 5–4 that right to privacy on behalf of the minor outweighed the rights of the parent or the state. The court, however, did open the doorway slightly for future legislation, acknowledging that not all minors qualify under the "mature minor" clause. In 1979, in Bellotti v. Baird, the court determined that a minor has the right to appeal to the courts for a judicial bypass if refused consent by a parent or legal guardian. Two years later, in H.L. v. Matheson, the court ruled that physicians are required to inform parents of immature and dependent minors prior to performing an abortion, citing the need to protect children from harm superseding the right to privacy on behalf of the minor.

However, in contrast to the trend toward self-determination in abortion rights, the Supreme Court has maintained the dependence of minors on parental consent in mental health issues. In Parham v. J.R. (1989), the court endorsed a Georgia ruling that a minor could be admitted to a state mental institutions without a judicial hearing or due process. Despite claims that the decision violated guarantees under the Fourteenth Amendment, the court cited that the parents' actions were decidedly in the best interests of the minor. The court also maintained that it is not in the best interest of the institution to admit a patient who did not actually need mental care.

In addition to self-determination, parental consent can be overridden in cases where the minor faces bodily danger as a direct result of the judgment of the legal guardian. According to Dr. Robert Klitzman, co-director of the Center for Bioethics at Columbia University, it is within the purview of the government to intercede on behalf of a child if a parent's decision to withhold treatment will result in harm, and that allowing disease to harm is akin to child abuse.

Selected full-text books and articles on this topic

Race for Perfection: Children's Rights and Enhancement Drugs
Powers, Therese.
Journal of Law and Health, Vol. 13, No. 1, Spring 1998
Medical Decision-Making and Minors: Issues of Consent and Assent
Kuther, Tara L.
Adolescence, Vol. 38, No. 150, Summer 2003
Exclusive or Concurrent Competence to Make Medical Decisions for Adolescents in the United States and United Kingdom
Stenger, Robert L.
Journal of Law and Health, Vol. 14, No. 2, Summer 1999
Children, Rights, and the Law
Philip Alston; Stephen Parker; John Seymour.
Clarendon Press, 1992
Librarian’s tip: "Medical Experimentation with Children" begins on p. 173
Ethics, Law, and Medical Practice
Kerry J. Breen; Vernon D. Plueckhahn; Stephen M. Cordner.
Allen & Unwin, 1997
Librarian’s tip: "Patients Who May Not Be Legally Able to Consent" begins on p. 32
Family Rights: Family Law and Medical Advance
Elaine Sutherland; Alexander McCall Smith.
Edinburgh University Press, 1990
Librarian’s tip: Chap. 1 "Is Anything Left of Parental Rights?"
The Ritual of Rights in Japan: Law, Society, and Health Policy
Eric A. Feldman.
Cambridge University Press, 2000
Children, Social Science, and the Law
Bette L. Bottoms; Margaret Bull Kovera; Bradley D. McAuliff.
Cambridge University Press, 2002
The Proliferation of Rights: Moral Progress or Empty Rhetoric?
Carl Wellman.
Westview Press, 1999
Librarian’s tip: Chap. 6 "New Medical Rights"
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