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

I. COMPETENCY TO MAKE MEDICAL DECISIONS

Making decisions about receiving or refusing medical diagnosis and treatment continues to challenge health care providers, legislators, lawyers and judges, ethicists, patients, and families. For the past half century the focus has been on informed consent as a necessary condition for diagnosis and treatment. (2) The Supreme Court of the United States has recognized "[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment...." (3) The assertion that a competent person has a "constitutional right" to accept or refuse medical treatment requires an analysis of how competence is defined and who determines whether someone is competent. Competency determinations are particularly difficult for "minors, who are sufficiently mature that it is implausible to exclude them from the decision-making process altogether, but whose competence to make certain important decisions is questionable." (4)

It is helpful to avoid assuming a dichotomy between the globally competent (who can always make any decision) and the non-competent (who can make none). There are times when a court is called upon to determine global competence; it does so in actions for guardianship of the person. (5) Precisely because such proceedings can legally result in the loss of significant personal rights and freedoms, such decisions are predicated upon heightened protections for the individual, including psychological examinations by experts, interdisciplinary recommendations, hearings with heightened burdens of proof, and the appointment of counsel. (6) Ordinarily competence is understood as decision-making capacity which is decision-relative, not global. "A competence determination, then, is a determination of a particular person's capacity to perform a particular decision-making task at a particular time and under specified conditions." (7)

Because the law requires informed consent before any medical diagnosis or treatment, there must be some initial determination that the person providing consent is capable of doing so, i.e. is competent. (8) Similarly, ethical norms and standards of professional conduct require that health professionals receive consent from patients before treatment. A health care provider who acts without adequate informed consent, except in narrowly defined emergency situations, runs the risk of criminal prosecution, civil liability and/or professional discipline.

One who is determining competence should be aware that the law presumes global competence for all adults. (9) Those who have not reached the age of majority or adulthood, which at common law was twenty one and now generally is eighteen, were called "infants", later "children" or "minors." (10) It should be obvious that arrival at some defined age of majority, the birthday when a child who lacked almost all legal powers and liberties immediately possesses all of them, is inconsistent with our experience and understanding of the processes of education and maturation. On the other hand, the efficient functioning of society requires some general line of demarcation when those in the process of growing up are legally recognized as adults who both demand and are given responsibility for their own actions and decisions.

Medical decision-making is one area where drawing and applying a single defining line between childhood and adulthood has proven difficult. Each society determines how it will allocate decision-making authority with respect to children. This article will address how such allocations have been developed in the United States and the United Kingdom. An analysis of the capacity of an adolescent to make decisions remains incomplete without some consideration of the role of parent(s) and of the government. It is precisely here that recent developments in the United Kingdom may provide helpful guidance in the United States.

II. MEDICAL DECISIONS FOR MINORS IN THE UNITED STATES

The general state of the law with respect to medical decisions by minors is not complicated in theory:

   As a general rule, informed parental consent is both a necessary and
   sufficient condition for the medical treatment of minors. Some standard
   common law and statutory limitations and exceptions to the general parental
   consent requirement ... relate to mandatory immunization and screening
   procedures (applicable to all children), the neglect limitation (where a
   court may override a parental decision for an individual child), the
   emergency treatment of children (where no parental consent is required if
   the parent is unavailable),and various exceptions that allow minors
   themselves to consent to treatment. (11)

Some general limitations and exceptions apply both to adults and to children: public health considerations could provide a sufficiently important or even compelling governmental interest to justify mandatory quarantines or immunizations and individuals who cannot provide informed consent can be treated if their caregivers fail to provide necessary medical treatment and life or health are at serious risk. Underlying these exceptional situations is the presumption that a reasonable person who understood the situation would consent to treatment. Application of the rules to specific cases will involve determinations which may be challenged: Was the situation really an emergency? Was the treatment provided really necessary? Was the patient really the subject of medical neglect?

More difficult questions arise concerning the exceptions which allow minors themselves to consent. A minor may be emancipated from parental care and control because of status, such as marriage or military service; some jurisdictions additionally provide a statutory emancipation procedure available to minors who are self-supporting and living independently of parents. (12) Those who deal with emancipated minors may continue to have concerns, e.g. are contracts emancipated minors sign enforceable against them? Who is responsible for payments? In jurisdictions and within cultural traditions with no or rather low ages for marrying, health care providers may question consents to treatment and wonder whether the consent will hold up if challenged.

In addition to emancipation by status or age, statutes in each state provide a variety of age-specific powers and disabilities: e.g. no persons under 21 may enter licensed premises to purchase alcoholic beverages although those who are at least 18 may stock malt beverages; (13) minors under 14 shall not work at gainful occupations, but minors at age 11 may work as caddies at golf courses; (14) consent to adoption is required of minors who are 12 and over, (15) while minors 14 and older may nominate their own guardians; (16) with respect to crimes involving sexual actions, a person under 16 is deemed incapable of consent (statutory rape). (17) Such age-specific statutes stand in marked contrast with statutes which have generally been adopted for specified medical decisions:

   (1) Any physician upon consultation by a minor as a patient with the
   consent of such minor may make a diagnostic examination for venereal
   disease, pregnancy, alcohol or other drug abuse or addiction and may
   advise, prescribe for and treat such minor regarding venereal disease,
   alcohol or other drug abuse or addiction, contraception, pregnancy or
   childbirth, all without the consent or notification to the parent....
   Treatment under this section does not include inducing of an abortion or
   performance of a sterilizing operation.

   (2) Any physician may provide outpatient mental health counseling to any
   child age 16 or older upon consent of such child without the consent of a
   parent....

   (3) (A)ny emancipated minor or any minor who has contracted a lawful
   marriage or borne a child may give consent to the furnishing of hospital,
   medical, dental or surgical care to his or her child or himself or herself
   and such consent shall not be subject to disaffirmance because of minority.
   (18)

Such statutes are justified both by public health concerns (diagnosis and treatment should be encouraged and readily available for people with sexually transmitted diseases or substance abuse and for preventing teenage pregnancies and minors would be deterred from seeking medical attention if their parents were to be informed) and risk-benefit analysis (the patient does not face serious risks and choice of treatment does not involve complex alternatives). At the same time, however, such statutory emancipation for medical decisions is inconsistent with the requirement of voluntary informed consent. It creates a statutory reversal of the usual presumption that a minor is incompetent to make legally binding decisions. Policy justifications for the statute are unrelated to the elements of informed decision-making. For example, an unmarried mother of any age would be empowered to make medical decisions concerning her child, including the complex decisions facing parents of at-risk neonates.

The statute does include protection for the provider of health care who relies in good faith on the minor's assertion of age. Two deterrents may affect the minor's receiving care: the provider may inform the parent or legal guardian if this is judged beneficial to the minor and parents who do not consent are not financially liable for the treatment provided. (19) Thus, the minor has the burden of showing why informing parents would not be beneficial and of providing some source of payment.

Alongside statutory exceptions to parental consent requirements, a common law doctrine of mature minors has been created by the courts. Its origins and rationale are discussed at length in Cardwell v. Bechtol. (20) The Court noted that "recognition that minors achieve varying degrees of maturity and responsibility (capacity) has been part of the common law for well over a century." (21) At common law recognition of the gradually increasing capacity of minors was called the Rule of Sevens: under the age of seven, a presumption of no capacity; from seven until fourteen a rebuttable presumption of no capacity; and from fourteen to twenty-one a rebuttable presumption of capacity. (22) The Court drew the definition of capacity from the Restatement: "If the person consenting is a child ... the consent may still be effective if he is capable of appreciating the nature, extent and probable consequences of the conduct consented to." (23)

The mature minor role is not a general presumption based upon an event such as arriving at a particular birthday or marrying or parenting a child. Rather, the conclusion that an adolescent is a mature minor depends upon the minor's ability "to appreciate his own conduct and the consequences of the conduct of others." (24) Here the plaintiff was seventeen years and seven months, a senior in high school planning to attend college, recognized as someone who acted older than her age, who visited a licensed osteopath for back pain and, when the treatment did not succeed, sued with her parents for battery (nonconsensual touching). The Court found that she was a mature minor whose consent, manifested by visiting the osteopath, was sufficient. (25)

In support of its decision, the Tennessee Court cited Younts v. St. Francis Hospital and School of Nursing, Inc., where Kansas had recognized a mature minor exception applied to a seventeen year old, intelligent and capable for her age with respect to treatment of an injured finger. (26) Cardwell was followed by Illinois in the case of a 17-year old woman with leukemia who, along with her mother, refused consent to a blood transfusion because of her religious beliefs. (27) The Illinois Court, while concluding that "a mature minor may exercise a common law right to consent to or refuse medical care," added several procedural restrictions. First, it determined that the presence of a judge was appropriate both because the state's public policy which values the sanctity of life is a critical consideration when a minor's health and life are at stake and because the state's parens patriae role is specially involved when there is a life-threatening situation. Second, the judge "must weigh these two principles against the evidence he receives of a minor's maturity" [and] "[if] the evidence is clear and convincing that the minor is mature enough to appreciate the consequences of her actions and that the minor is mature enough to exercise the judgment of an adult," then, third, the judge must balance the mature minor's right to consent or refuse consent "against four State interests: (1) the preservation of life; (2) protecting the interests of third parties; (3) prevention of suicide; and 4) maintaining the ethical integrity of the medical profession." (28) Here the most significant state interest was protection of the interests of parents, guardians, siblings and adult relatives and the Court suggested that the minor's decision in this case would be upheld because her mother agreed with her; had the mother opposed her daughter's decision, "this opposition would weigh heavily against the minor's right to refuse." (29)

Maine utilized similar reasoning in recognizing the wishes of a seventeen and a half year old normally mature high school senior not to be maintained with artificial nutrition and hydration after he suffered permanent and totally disabling head injuries in an automobile accident and was in a persistent vegetative state. (30) The court had found "by clear and convincing evidence that Chad made a pre-accident decision with regard to his medical treatment," his parents who had been appointed co-guardians concurred in that decision, and the only opposition came from the District Attorney. (31)

On the other hand, Texas refused to allow a sixteen year old male Jehovah's Witness, whose parents joined his request, to refuse a blood transfusion which surgeons determined to be necessary in their attempt to save an arm severely injured when the young man was struck by a train. (32) So also, New York refused to accept a fifteen year old young man's refusal of diagnostic surgery after a tumor was discovered; his mother wanted the surgery but the young man had a "strong phobia for needles." (33) In a much more debatable decision, a New York court refused to accept the refusal of a blood transfusion by a male Jehovah's Witness who was just seven weeks short of his eighteenth birthday and whose parents agreed with his decision. (34) There was evidence from medical experts that without treatment, he would die within a month, during which he would suffer great pain, while the recommended treatment, including blood transfusion, offered a seventy-five percent possibility of remission for months or years and a twenty-five to thirty percent possibility of cure. The court noted that the family had joined the Jehovah's Witnesses only in 1987, Philip had returned to religious study only the previous year, Philip testified that if he consented to a transfusion he would not have everlasting life but if the court ordered a transfusion, he would have no sin, and although he was a senior in high school, he had never been away from home or dated a girl, and when asked if he considered himself an adult or a child, he replied "child." (35)

The common law doctrine that a mature minor can consent to medical treatment has in some places received qualified acceptance. Some jurisdictions in adopting the rule also require heightened scrutiny in the determination of maturity when the minor is refusing treatment which would preserve life and/or when the parent(s) or guardian do not agree with the minor's refusal. (36)

The Supreme Court of the United States has repeatedly discussed the mature minor doctine with respect to the specific issue of a minor's decision to terminate a pregnancy. Three years after the Court's decision in Roe v. Wade (37) that the state could not always prevent a pregnant woman from choosing to terminate her pregnancy, the Court was faced with challenges to a statute which required, inter alia, that during the first twelve weeks of pregnancy an unmarried woman under eighteen required the written consent of a parent before a physician could perform an abortion (except for emergencies when abortion may be necessary to save the mother's life). (38) While supporters of the statute argued that Missouri provided a number of limitations upon minors (e.g. sales of firearms, cigarettes, alcohol and certain types of literature to minors, appointment of guardians ad litem, and parental consent for medical treatment), opponents pointed out that minors could consent to medical services for pregnancy and venereal disease and a minor married with parental permission could consent to abortion. Justice Blackmun for the plurality held that "the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of a physician and his patient to terminate the patient's pregnancy." (39) While recognizing the State's interest in safeguarding the family unit and upholding parental authority, he noted that the family was already fractured by the pregnancy and the minor's decision not …

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Publication information: Article title: Exclusive or Concurrent Competence to Make Medical Decisions for Adolescents in the United States and United Kingdom. Contributors: Stenger, Robert L. - Author. Journal title: Journal of Law and Health. Volume: 14. Issue: 2 Publication date: Summer 1999. Page number: 209+. © 1997 Cleveland Marshall College of Law. COPYRIGHT 1999 Gale Group.

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