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Teenagers, physicians, and the law in New England
J O U R N A L OF A D O L E S C E N T H E A L T H CARE 1985;6;377-382
REVIEW ARTICLE
Teenagers, Physicians, and the Law in New England VICTOR C. STRASBURGERI M . D . / J .
M I C H A E L EISNERI P H . D . / J . D . / J O H N Q. TILSONr
J.D.~ C. A N D R E W RIGGI M . D . I A N D J O H N W. KULIGy M . D .
Physicians w h o treat teenagers are often unclear about the teenagers' legal rights and their o w n legal responsibility and liability. While laws may vary from state to state, certain doctrines are uniformly applicable: confidentiality, emergency treatment, and the right of the "mature minor" to consent to his or her o w n medical treatment. In this article, the laws pertaining to adolescent health care in the six N e w England states are reviewed. Guidelines for practitioners are given. KEY WORDS:
Legal rights Mature minor Confidentiality Statutes Abortion Contraception Emancipated minor The introduction of terms such as "squeal rule" and "Baby Doe" into our everyday medical vocabulary reflects the need for physicians to become increasingly aware of and concerned about the law and how it relates to their practice of medicine. In a 1982 survey of pediatricians in Connecticut, 59% of the respondents expressed some or great concern over the legal aspects of the treatment of teenage patients (1). Since the 1960s, an increasing amount of legal and medical attention has been focused on teenagers and their legal rights within the health-care system. While there is still a paucity of legislation that deals with major adolescent health care issues (e.g., conPreparedfor The New England Regional Chapter of the Society for Adolescent Medicine, Boston, Massachusetts. Address reprint requests to: John W. Kulig, M.D., New England Regional Chapter of the Societyfor Adolescent Medicine, 171 Harrison Avenue, P. O. Box 479, Boston, MA 02111. Manuscript accepted November 1, 1984.
sent for contraceptive devices, consent to abortion), a number of legal doctrines have been established through judicial decision making which clarify some of the key issues for practitioners who treat teenagers. In addition, the Society for Adolescent Medicine, through its Legislative Committee, published "A Model Bill for Minors" Consent to Health Services" in 1973. This has been enacted into law in several states and in the District of Columbia. (2). Nevertheless, most physicians who deal with teenagers continue to believe that they must function with little, if any, law to guide them. On a legal quiz (seventeen true or false questions) included in our survey about Connecticut law as it affects the practice of medicine in relation to adolescents, only one physician out of the 79 respondents answered all of the questions correctly (1). This article summarizes the existing state laws in New England--which are similar to the laws in other states--and indicates how such laws apply to the physician who is consulted by an adolescent patient.
Background Traditionally, under the doctrine of "parental sovereignty," children and adolescents were viewed as the "property" of their parents. Adolescents therefore could not consent to their own medical treatment. In the late nineteenth century, child welfare laws sought to limit parental ownership rights and transfer the responsibility to others w h e n the child's health was endangered. Despite the apparent good intentions that caused them to be written, these doctrines resulted in adolescents having few if any rights of their own. Only in the past quarter century have teenagers gradually gained substantial independence with respect to their own medical treatment
(3). As defined by law in all of the New England
© Society for Adolescent Medicine, 1985 Published by Elsevier Science Publishing Co., Inc., 52 Vanderbilt Ave., New York, NY 10017
377 0197-0070/85/$3.30
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JOURNAL OF ADOLESCENT HEALTH CARE Vol. 6, No. 5
states, a "minor" is a person under the age of eighteen years. As a general rule, consent for treatment should be obtained from a parent or court-appointed representative of those below that age. Under many special circumstances, however, consent may be obtained from a minor without parental consent or notification.
Statutory Law There are relatively few laws in N e w England granting special rights to teenagers below the age of 18 years. The voting age in all N e w England states is 18 years of age, and the drinking age is 20 years in all states but Vermont, where it is 18 years. Each state has a venereal disease statute that allows for the treatment of minors without parental consent if the minor seeks treatment for sexually transmitted disease. The Connecticut statute specifies that if the child is twelve years old or under, the matter must be reported as possible child abuse. All N e w England states, except Rhode Island, have a statute that provides for confidential treatment of a minor's drug or drug-related problem without parental consent. Connecticut, Maine, N e w Hampshire, and Vermont also permit treatment without parental consent for alcohol problems, although in Connecticut the minor can only apply for treatment at a licensed alcoholtreatment facility. Some states outside of N e w England have delineated in somewhat greater detail teenagers' rights dealing with issues such as general medical consent, contraception, and abortion. At the present time, Alabama has the most "liberal" law in the nation con-
cerning adolescent health care: teenagers can give consent for their own medical care at age 14 years and can receive birth control counseling and treatment for a suspected pregnancy at any age. In N e w England, a Rhode Island statute gives 16-year-olds the right to "consent to routine emergency medical or surgical care," and a Massachusetts statute allows a female minor at any age to consent to medical treatment, except abortion, if "she is pregnant or believes herself to be pregnant." A brief summary of N e w England state laws is given in Table 1.
Emancipated Minors Three N e w England states provide statutes for the treatment of emancipated minors. In Connecticut, Maine, and Massachusetts, a minor who is married, on active duty with the Armed Forces, or w h o is willingly living apart from his or her parents or guardian and w h o is managing his or her own financial affairs is considered to be emancipated and can consent to his or her own treatment. In Connecticut and Maine, the minor must also be at least 16 years of age. In Massachusetts, any minor who is the parent of a child, is pregnant, believes she is pregnant, is widowed, or is divorced is deemed emancipated for purposes of granting consent for medical treatment. These standards reflect the common law standards traditionally used to determine emancipation. In Connecticut and Maine, a court must be petitioned and a court order of emancipation obtained before medical treatment can begin (although a minor can still demonstrate that he or she is emancipated under traditional common law standards without going
Table 1. S u m m a r y of State L a w s as of 1983
Age, majority Voting age Drinking age Venereal disease treatment Drug treatment law Alcohol specified Emancipation provision Minimum age, voluntary psychiatric admission Birth control statute Pregnancy statute Abortion statute Consent for general medical care statute
CT
MA
ME
NH
RI
VT
18 18 20 12 Yes No Yes 16 None None None None
18 18 20 Any minor Yes a No Yes 16 None Yes b Yes c None
18 18 20 Any minor Yes Yes Yes 18 None None Yes d None
18 18 20 14 Yes Yes No 18 None None None None
18 18 20 Under 21 No No No 18 None None Yes c Yes, age 16
18 18 18 12 Yes Yes No 14 None None None None
aTreatment must be certified by two M.D.s. bAny minor who is pregnant or fears that she may be pregnant may give consent for her own health care. cConsent of both parents or a court order is required. ~Parental notification is required if the minor is u n d e r 17 years of age. N.B. In 1984, President Reagan signed a bill that will pressure states to raise their drinking ages to 21 or lose highway construction money in two years. Rhode Island and Massachusetts (as of July, 1985) have already raised their drinking age to 21.
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through this procedure for other than medical purposes). In Massachusetts, such a minor automatically is deemed emancipated for purposes of medical treatment and does not need a court order.
The Doctrine of the Mature Minor Except for nontherapeutic sterilization or organ/ tissue donation, we are unaware of any reported decision in the last 20 years in which a parent has recovered damages for treatment of a "mature" child of 15 years or older w h o has given an informed consent to treatment based on the failure to obtain parental consent, even in the absence of a minor consent statute (4). This is based on the judicial doctrine of the "mature minor," which has evolved during the last 20 years. Simply stated, a mature minor is defined as one w h o is at least 15 years of age and is capable of understanding the risks and benefits of a medical procedure, and w h o is therefore capable of granting an informed consent. The judgment that can be exercised by an individual does not change between the day preceding and the day following his eighteenth birthday. Adolescents have gained new common law (judge-granted) rights as their differing levels of development have become recognized in case law. Generally, the mature minor doctrine provides that, under certain circumstances, a minor w h o is otherwise capable of giving informed consent to medical treatment may do so if the physician has been unable to locate the minor's parents. Ten years ago, the American Academy of Pediatrics affirmed this doctrine in a position paper (5). In situations where parental consent cannot be obtained and treatment is undertaken on the signature of a mature minor, the following points should be considered: 1. Care should be taken to document all of the circumstances in the case, including the medical situation and the efforts made to contact the family, or reasons for not contacting them. 2. The minor should be at least 15 years of age and appear to be clearly capable both of understanding the nature of the procedure and of giving standard informed consent. 3. The treatment should be necessary according to conservative medical opinion and be undertaken for the patient's benefit (not, for example, the donation of a transplant organ, which would not benefit the donating minor), and the treatment should be for a condition less than "major" or "serious" in nature. (Emergency treatment is discussed in the next section.)
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4. The minor should be as fully informed as an adult would be, and, where appropriate, he or she should sign a consent form. The question of w h o decides whether a minor is "'mature" has generally been left to the discretion, within the standard guidelines, of the physician. However, if there is any question, a second physician's opinion should be sought. It should be noted that Maine has a statute that enables physicians or hospitals to obtain "medical treatment orders" that authorize the treatment of minors w h o would suffer increased serious injury if treatment were not provided and whose parents or guardians have refused to consent to the treatment or cannot be located. In Rhode Island, minors w h o are age 16 years or w h o are married are authorized by statute to consent to "routine emergency medical or surgical care."
Emergency Treatment The existence of a life- or limb-threatening emergency where there is no time to obtain parental consent always obviates the need to obtain such parental (or any other) consent.' In addition, courts on occasion have taken a liberal view of the definition of an "emergency," so that a minor with a painful fracture, for instance, can probably be treated if his or her parents are unavailable to give consenL Under such circumstances, the courts have probably applied the mature minor doctrine. Treatment could be provided to a runaway under this latter view in circumstances where he or she refuses to allow the parents to be contacted and where the delay of treatment would involve significant pain and suffering, e.g., in cases such as acute appendicitis or a fracture. Parents may not recover damages for proper emergency treatment done without their consent. Good common sense and careful documentation of the emergency in the patient's chart will avoid most potential problems.
Confidentiality We have found that the primary concern of the average teenager w h o seeks medical help, even for a trivial illness, is confidentiality (6). In our view, it is a crucial factor explaining w h y teenagers sometimes avoid seeking medical attention for serious problems (drug addiction, pregnancy, etc.) and, w h e n they do seek help, more often go to emergency rooms or family planning clinics than to their usual physician. We
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know of no reported decision, however, in which a minor successfully sued a physician for revealing information to his or her parents. There are very few laws that make the medical record confidential, although by common law the physician-parent relationship has generally been viewed as a fiduciary relationship that requires confidentiality. In addition, some judges have suggested that there is an implied contract of confidentiality between the physician and patient. The federal regulations that concern records of treatment for drug and alcohol abuse state that all records, including records of minors, are confidential. Many states have a statute that makes records of treatment for sexually transmitted disease confidential. In Connecticut, when minors are treated for sexually transmitted diseases or drug abuse, the statutes state that parents may not be notified without the consent of the minor. In Massachusetts, the statute on emancipation specifically provides that records of the treatment of the minor who is deemed emancipated for purposes of medical treatment are confidential and may not be released without the minor's consent. If a physician is willing to treat a minor without parental consent, then we believe the normal physician-patient relationship should apply--confidentiality is not to be breached unless the patient has a reportable contagious disease, the patient's life or health is in imminent danger (e.g., exhibits suicidal behavior), or the patient may imminently endanger another person (e.g., exhibits dangerous and/or homicidal behavior). In Massachusetts, however, a physician who has treated a minor w h o is deemed emancipated for purposes of medical treatment is required to notify the parents or guardian if the physician "reasonably believes the condition . . . to be so serious t h a t . . , life or limb is endangered . . . . " This should be explained to any minor seeking confidential treatment. If confidentiality may be breached for other reasons, the minor should be warned of this prior to treatment. The minor should also be informed that he or she is financially responsible for the cost of the services provided.
Contraception In Carey v. Population Services International, the Supreme Court held that "the right of privacy in connection with decisions affecting procreation extends to minors as well as to adults" (431 U.S. 693 (1977)). More recently, a federal court of appeals in Michigan held in the case of Doe v. Irwin that a statesupported county clinic that counseled teenagers
JOURNALOF ADOLESCENTHEALTHCAREVol. 6, No. 5
and prescribed birth control devices, other than intrauterine devices, without parental consent or notification, was under no duty to notify parents if the teenager did not wish it to do so. The parents had argued that their constitutional interest in the care, custody, and control of their minor children, long recognized by the Supreme Court, had been infringed upon by the failure to notify them. The Supreme Court refused to review the case (615 F.2d 1162, (6th Cir. 1980), cert. denied, 101 S. Ct. 95). Since no N e w England state presently has a specific law to the contrary, we support the view that a physician who provides counseling or contraceptive care to a mature minor without parental consent or notification faces little risk of liability. The Doe v. Irwin case adds considerable support to this view. We are unaware of any suit in which a physician was successfully sued for counseling or prescribing birth control devices for a minor. The physician, of course, is under no legal obligation to prescribe birth control pills or devices to a minor and may refuse to treat such patients because of his or her own moral, religious, medical, or other beliefs. If the physician refuses to treat a minor patient, however, we believe that the preferable course of action is to advise the teenager where to obtain help, and for the physician to make an appropriate referral. By this means, a possible claim of abandonment can be avoided. The status of the "immature minor" remains unclear. A minor under the age of 15 years may still be able to give an informed consent. On the other hand, when 12-year-olds have sexual intercourse, for example, it may signify "acting out" behavior in the context of a family problem, and parents may already know or suspect their child's behavior (7). There is almost no legal precedent in this area, but similar principles may apply. The physician's first ethical concern is the welfare of his patient. If the physician determines that the use of contraceptives will serve the patient's best interests and are medically indicated, it is unlikely that he or she would be found legally liable for acting on a medical-ethical belief (8). The status of the so-called "squeal rule," has been resolved. On December 1, 1983, the Reagan administration announced that it had given up its attempt to force federally funded family planning services to "notify the parents or guardians of unemancipated minors when prescription drugs or prescription devices are provided to such minors" (Associated Press, December 1, 1983). Under the proposed regulation, grantees would have been required to notify the parents within ten days after prescription drugs
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TEENAGERS,PHYSICIANS,AND THE LAWIN NEW ENGLAND
or devices had been provided, and they would have had to inform the minor, prior to provision of the services, of the notification requirement• The regulation was overturned by rulings in federal courts of appeals in Washington and New York (Planned Parenthood Fed'n of America v. Heckler, 712 F.2d 650 (D.C. Cir. 1983); N.Y.v. Heckler, 719 F.2d 1191 (2d Cir. 1983)).
Abortion Since the Supreme Court's landmark decisions in 1973 (Roe v. Wade and Doe v. Bolton), which held that women have a constitutional right--with the concurrence of their physicians--to obtain abortions, a number of Supreme Court decisions have dealt with abortions for minors. In Planned Parenthood of Central Missouri v. Danforth in 1976, the Court ruled that a "State may not impose a blanket p r o v i s i o n . . , requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy" (428 U.S. 74 (1976))• However, the Court also pointed out that it was not suggesting that "every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy." In Bellotti v. Baird in 1976 and 1979, the Court applied the following criteria in consideration of a Massachusetts law that required the written consent of both parents or a Superior Court order before a minor could obtain an abortion: Every minor must have the opportunity--if she so desires--to go directly to a court without first consulting or notifying her parents• If she satisfies that court that she is mature and well enough informed to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent. If she fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion nonetheless would be in her best interests. If the court is persuaded that it is, the court must authorize the abortion. 443 S. Ct. 647-648 (1979). The Supreme Court in H . L . v . Matheson in 1981, upheld a Utah law requiring notification of the parents of an unemancipated unmarried minor before an abortion is performed. Despite the widespread publicity it attracted, this ruling was quite limited in scope. The only issue before the Court was the constitutionality of a statute that required a physician to give notice to parents "if possible" before performing an abortion on a minor who was dependent
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upon her parents, did not make any claim to be a "mature minor," and did not claim to be emancipated by marriage or otherwise. The Court ruled that the law in question gave "neither parents nor judges a veto power over the minor's abortion decision" and therefore was constitutionally acceptable (450 U.S. 411-413 (1981)). Most recently, the Supreme Court (June 15, 1983) reconsidered the whole question of parental consent in connection with abortions performed on minors (City of Akron v. Akron Center for Reproductive Health, Inc., and Planned Parenthood Association of Kansas City, Mo., Inc. v. Ashcroft). The Court reaffirmed its previously expressed position that states may require parental or judicial consent before an abortion is performed on a minor. A state restriction that required parental consent would be invalid, however, unless the minor had access to court proceedings wherein the minor could demonstrate sufficient maturity to make an abortion decision herself, or, in the absence of such maturity, demonstrate that an abortion would be in her best interest• The Court also stated that an emancipated minor clearly could consent to abortion• The Court explained its position in the Ashcroft case: As we noted in City of Akron, the relevant legal standards with respect to parental consent requirements are not in d i s p u t e . . . A State's interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial• It is clear, however, that "the State must provide an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests"• • . . (Notes omitted•) Nos. 81-1255, 81-1623, Slip Op. at p. 14, 51 U.S.L.W. 4787. As in the Matheson case, the Court emphasized that if a State has a consent statute, once a minor is determined by a court to be mature, the abortion decision is hers, and not that of the court or her parents. In New England, three states currently have laws that deal specifically with the abortion consent issue. Massachusetts and Rhode Island modified their statutes in accordance with the second Bellotti decision: an unmarried minor who seeks an abortion in those states must have the consent of both her parents or, if she is unwilling to ask their permission or they deny it, the consent of a superior court judge• Unless the woman has married, this consent requirement applies even if the teenager is a mature minor, is emancipated, or is already a parent. Both parents must consent, or the minor is forced to obtain a court
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order, although the custodial parent's consent can suffice if her parents are divorced. In the first seventeen months after the law took effect in Massachusetts (April, 1981), 1,571 minors elected to go to court rather than ask their parents' consent for an abortion, and only two minors were refused abortions by the courts (9). Maine's parental notification statute requires notification of one parent of any unemancipated minor under the age of 17 years at least 24 hours before she undergoes an abortion. Since Connecticut, N e w Hampshire, and Vermont have no statutes that deal with minors' abortions, we believe that in these states an abortion may be performed on the informed consent and signature of a mature or an emancipated minor. In the case of unemancipated minors, it is always preferable to attempt to obtain parental consent if the minor does not object. If the minor does object, but is deemed to be mature by the physician, careful documentation should be included in the chart before the physician proceeds with the procedure. If the minor is deemed immature, her confidentiality may have to be breached. One major abortion clinic in Connecticut requires teenagers under the age of 15 years to have an adult--related or n o t - - " s i g n for them." Only under these conditions will an abortion be performed; there is, however, no statutory basis for this rule. If a question exists about the minor's maturity, a second physician should be consulted to ascertain his or her opinion, and the minor's written consent should be obtained by the attending physician. If the abortion is to be performed in a hospital, we suggest that the Chief of Obstetrics and Gynecology or his designee be
JOURNAL OF ADOLESCENT HEALTH CARE Vol. 6, No. 5
chosen to give the second opinion and authorize the procedure. Under no circumstances should an abortion
be performed when the patient herself refuses to give her consent, regardless of her degree of maturity or the wishes of her parents. In all N e w England states, a minor cannot be sterilized (except where necessarily incidental to medically indicated treatment such as for cancer or severe trauma) or be used as a living donor of tissue or organs without a court order. This artide is not intended to give specific legal advice. If legal advice is required, the services of a knowledgeable attorney should be sought.
References 1. Strasburger VC, Eisner JM. Teenagers, physicians, and the law in Connecticut, 1982. Conn Med 1982;46:80-4. 2. Committee on Legislation, Society for Adolescent Medicine. A model bill for minors' consent to health services. Pediatrics 1973;52:750-1. 3. Silber TJ, ed. Ethical issues in the treatment of children and adolescents. New Jersey: Slack Inc., 1983. 4. Pilpel H. Minors' rights to medical care, Albany Law Review 1972;36:462-80. 5. American Academy of Pediatrics. The implications of minor's consent legislation for adolescent health care; a commentary. Pediatrics 1974; 54:481-5. 6. The Alan Guttmacher Institute. Teenage pregnancy: The problem that hasn't gone away. New York; 1981. 7. Turetsky RA, Strasburger VC. Adolescent contraception: review and recommendations. Clin Pediatr 1983;337-41. 8. Holder AR. Legal issues in pediatrics and adolescent medicine. New York, John Wiley & Sons, 1977. 9. Donovan P. Judging teenagers: How minors fare when they seek court-authorized abortions. Fam Plann Persp 1983;15:25967.
REVIEW ARTICLE
Teenagers, Physicians, and the Law in New England VICTOR C. STRASBURGERI M . D . / J .
M I C H A E L EISNERI P H . D . / J . D . / J O H N Q. TILSONr
J.D.~ C. A N D R E W RIGGI M . D . I A N D J O H N W. KULIGy M . D .
Physicians w h o treat teenagers are often unclear about the teenagers' legal rights and their o w n legal responsibility and liability. While laws may vary from state to state, certain doctrines are uniformly applicable: confidentiality, emergency treatment, and the right of the "mature minor" to consent to his or her o w n medical treatment. In this article, the laws pertaining to adolescent health care in the six N e w England states are reviewed. Guidelines for practitioners are given. KEY WORDS:
Legal rights Mature minor Confidentiality Statutes Abortion Contraception Emancipated minor The introduction of terms such as "squeal rule" and "Baby Doe" into our everyday medical vocabulary reflects the need for physicians to become increasingly aware of and concerned about the law and how it relates to their practice of medicine. In a 1982 survey of pediatricians in Connecticut, 59% of the respondents expressed some or great concern over the legal aspects of the treatment of teenage patients (1). Since the 1960s, an increasing amount of legal and medical attention has been focused on teenagers and their legal rights within the health-care system. While there is still a paucity of legislation that deals with major adolescent health care issues (e.g., conPreparedfor The New England Regional Chapter of the Society for Adolescent Medicine, Boston, Massachusetts. Address reprint requests to: John W. Kulig, M.D., New England Regional Chapter of the Societyfor Adolescent Medicine, 171 Harrison Avenue, P. O. Box 479, Boston, MA 02111. Manuscript accepted November 1, 1984.
sent for contraceptive devices, consent to abortion), a number of legal doctrines have been established through judicial decision making which clarify some of the key issues for practitioners who treat teenagers. In addition, the Society for Adolescent Medicine, through its Legislative Committee, published "A Model Bill for Minors" Consent to Health Services" in 1973. This has been enacted into law in several states and in the District of Columbia. (2). Nevertheless, most physicians who deal with teenagers continue to believe that they must function with little, if any, law to guide them. On a legal quiz (seventeen true or false questions) included in our survey about Connecticut law as it affects the practice of medicine in relation to adolescents, only one physician out of the 79 respondents answered all of the questions correctly (1). This article summarizes the existing state laws in New England--which are similar to the laws in other states--and indicates how such laws apply to the physician who is consulted by an adolescent patient.
Background Traditionally, under the doctrine of "parental sovereignty," children and adolescents were viewed as the "property" of their parents. Adolescents therefore could not consent to their own medical treatment. In the late nineteenth century, child welfare laws sought to limit parental ownership rights and transfer the responsibility to others w h e n the child's health was endangered. Despite the apparent good intentions that caused them to be written, these doctrines resulted in adolescents having few if any rights of their own. Only in the past quarter century have teenagers gradually gained substantial independence with respect to their own medical treatment
(3). As defined by law in all of the New England
© Society for Adolescent Medicine, 1985 Published by Elsevier Science Publishing Co., Inc., 52 Vanderbilt Ave., New York, NY 10017
377 0197-0070/85/$3.30
378
STRASBURGER ET AL.
JOURNAL OF ADOLESCENT HEALTH CARE Vol. 6, No. 5
states, a "minor" is a person under the age of eighteen years. As a general rule, consent for treatment should be obtained from a parent or court-appointed representative of those below that age. Under many special circumstances, however, consent may be obtained from a minor without parental consent or notification.
Statutory Law There are relatively few laws in N e w England granting special rights to teenagers below the age of 18 years. The voting age in all N e w England states is 18 years of age, and the drinking age is 20 years in all states but Vermont, where it is 18 years. Each state has a venereal disease statute that allows for the treatment of minors without parental consent if the minor seeks treatment for sexually transmitted disease. The Connecticut statute specifies that if the child is twelve years old or under, the matter must be reported as possible child abuse. All N e w England states, except Rhode Island, have a statute that provides for confidential treatment of a minor's drug or drug-related problem without parental consent. Connecticut, Maine, N e w Hampshire, and Vermont also permit treatment without parental consent for alcohol problems, although in Connecticut the minor can only apply for treatment at a licensed alcoholtreatment facility. Some states outside of N e w England have delineated in somewhat greater detail teenagers' rights dealing with issues such as general medical consent, contraception, and abortion. At the present time, Alabama has the most "liberal" law in the nation con-
cerning adolescent health care: teenagers can give consent for their own medical care at age 14 years and can receive birth control counseling and treatment for a suspected pregnancy at any age. In N e w England, a Rhode Island statute gives 16-year-olds the right to "consent to routine emergency medical or surgical care," and a Massachusetts statute allows a female minor at any age to consent to medical treatment, except abortion, if "she is pregnant or believes herself to be pregnant." A brief summary of N e w England state laws is given in Table 1.
Emancipated Minors Three N e w England states provide statutes for the treatment of emancipated minors. In Connecticut, Maine, and Massachusetts, a minor who is married, on active duty with the Armed Forces, or w h o is willingly living apart from his or her parents or guardian and w h o is managing his or her own financial affairs is considered to be emancipated and can consent to his or her own treatment. In Connecticut and Maine, the minor must also be at least 16 years of age. In Massachusetts, any minor who is the parent of a child, is pregnant, believes she is pregnant, is widowed, or is divorced is deemed emancipated for purposes of granting consent for medical treatment. These standards reflect the common law standards traditionally used to determine emancipation. In Connecticut and Maine, a court must be petitioned and a court order of emancipation obtained before medical treatment can begin (although a minor can still demonstrate that he or she is emancipated under traditional common law standards without going
Table 1. S u m m a r y of State L a w s as of 1983
Age, majority Voting age Drinking age Venereal disease treatment Drug treatment law Alcohol specified Emancipation provision Minimum age, voluntary psychiatric admission Birth control statute Pregnancy statute Abortion statute Consent for general medical care statute
CT
MA
ME
NH
RI
VT
18 18 20 12 Yes No Yes 16 None None None None
18 18 20 Any minor Yes a No Yes 16 None Yes b Yes c None
18 18 20 Any minor Yes Yes Yes 18 None None Yes d None
18 18 20 14 Yes Yes No 18 None None None None
18 18 20 Under 21 No No No 18 None None Yes c Yes, age 16
18 18 18 12 Yes Yes No 14 None None None None
aTreatment must be certified by two M.D.s. bAny minor who is pregnant or fears that she may be pregnant may give consent for her own health care. cConsent of both parents or a court order is required. ~Parental notification is required if the minor is u n d e r 17 years of age. N.B. In 1984, President Reagan signed a bill that will pressure states to raise their drinking ages to 21 or lose highway construction money in two years. Rhode Island and Massachusetts (as of July, 1985) have already raised their drinking age to 21.
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through this procedure for other than medical purposes). In Massachusetts, such a minor automatically is deemed emancipated for purposes of medical treatment and does not need a court order.
The Doctrine of the Mature Minor Except for nontherapeutic sterilization or organ/ tissue donation, we are unaware of any reported decision in the last 20 years in which a parent has recovered damages for treatment of a "mature" child of 15 years or older w h o has given an informed consent to treatment based on the failure to obtain parental consent, even in the absence of a minor consent statute (4). This is based on the judicial doctrine of the "mature minor," which has evolved during the last 20 years. Simply stated, a mature minor is defined as one w h o is at least 15 years of age and is capable of understanding the risks and benefits of a medical procedure, and w h o is therefore capable of granting an informed consent. The judgment that can be exercised by an individual does not change between the day preceding and the day following his eighteenth birthday. Adolescents have gained new common law (judge-granted) rights as their differing levels of development have become recognized in case law. Generally, the mature minor doctrine provides that, under certain circumstances, a minor w h o is otherwise capable of giving informed consent to medical treatment may do so if the physician has been unable to locate the minor's parents. Ten years ago, the American Academy of Pediatrics affirmed this doctrine in a position paper (5). In situations where parental consent cannot be obtained and treatment is undertaken on the signature of a mature minor, the following points should be considered: 1. Care should be taken to document all of the circumstances in the case, including the medical situation and the efforts made to contact the family, or reasons for not contacting them. 2. The minor should be at least 15 years of age and appear to be clearly capable both of understanding the nature of the procedure and of giving standard informed consent. 3. The treatment should be necessary according to conservative medical opinion and be undertaken for the patient's benefit (not, for example, the donation of a transplant organ, which would not benefit the donating minor), and the treatment should be for a condition less than "major" or "serious" in nature. (Emergency treatment is discussed in the next section.)
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4. The minor should be as fully informed as an adult would be, and, where appropriate, he or she should sign a consent form. The question of w h o decides whether a minor is "'mature" has generally been left to the discretion, within the standard guidelines, of the physician. However, if there is any question, a second physician's opinion should be sought. It should be noted that Maine has a statute that enables physicians or hospitals to obtain "medical treatment orders" that authorize the treatment of minors w h o would suffer increased serious injury if treatment were not provided and whose parents or guardians have refused to consent to the treatment or cannot be located. In Rhode Island, minors w h o are age 16 years or w h o are married are authorized by statute to consent to "routine emergency medical or surgical care."
Emergency Treatment The existence of a life- or limb-threatening emergency where there is no time to obtain parental consent always obviates the need to obtain such parental (or any other) consent.' In addition, courts on occasion have taken a liberal view of the definition of an "emergency," so that a minor with a painful fracture, for instance, can probably be treated if his or her parents are unavailable to give consenL Under such circumstances, the courts have probably applied the mature minor doctrine. Treatment could be provided to a runaway under this latter view in circumstances where he or she refuses to allow the parents to be contacted and where the delay of treatment would involve significant pain and suffering, e.g., in cases such as acute appendicitis or a fracture. Parents may not recover damages for proper emergency treatment done without their consent. Good common sense and careful documentation of the emergency in the patient's chart will avoid most potential problems.
Confidentiality We have found that the primary concern of the average teenager w h o seeks medical help, even for a trivial illness, is confidentiality (6). In our view, it is a crucial factor explaining w h y teenagers sometimes avoid seeking medical attention for serious problems (drug addiction, pregnancy, etc.) and, w h e n they do seek help, more often go to emergency rooms or family planning clinics than to their usual physician. We
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know of no reported decision, however, in which a minor successfully sued a physician for revealing information to his or her parents. There are very few laws that make the medical record confidential, although by common law the physician-parent relationship has generally been viewed as a fiduciary relationship that requires confidentiality. In addition, some judges have suggested that there is an implied contract of confidentiality between the physician and patient. The federal regulations that concern records of treatment for drug and alcohol abuse state that all records, including records of minors, are confidential. Many states have a statute that makes records of treatment for sexually transmitted disease confidential. In Connecticut, when minors are treated for sexually transmitted diseases or drug abuse, the statutes state that parents may not be notified without the consent of the minor. In Massachusetts, the statute on emancipation specifically provides that records of the treatment of the minor who is deemed emancipated for purposes of medical treatment are confidential and may not be released without the minor's consent. If a physician is willing to treat a minor without parental consent, then we believe the normal physician-patient relationship should apply--confidentiality is not to be breached unless the patient has a reportable contagious disease, the patient's life or health is in imminent danger (e.g., exhibits suicidal behavior), or the patient may imminently endanger another person (e.g., exhibits dangerous and/or homicidal behavior). In Massachusetts, however, a physician who has treated a minor w h o is deemed emancipated for purposes of medical treatment is required to notify the parents or guardian if the physician "reasonably believes the condition . . . to be so serious t h a t . . , life or limb is endangered . . . . " This should be explained to any minor seeking confidential treatment. If confidentiality may be breached for other reasons, the minor should be warned of this prior to treatment. The minor should also be informed that he or she is financially responsible for the cost of the services provided.
Contraception In Carey v. Population Services International, the Supreme Court held that "the right of privacy in connection with decisions affecting procreation extends to minors as well as to adults" (431 U.S. 693 (1977)). More recently, a federal court of appeals in Michigan held in the case of Doe v. Irwin that a statesupported county clinic that counseled teenagers
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and prescribed birth control devices, other than intrauterine devices, without parental consent or notification, was under no duty to notify parents if the teenager did not wish it to do so. The parents had argued that their constitutional interest in the care, custody, and control of their minor children, long recognized by the Supreme Court, had been infringed upon by the failure to notify them. The Supreme Court refused to review the case (615 F.2d 1162, (6th Cir. 1980), cert. denied, 101 S. Ct. 95). Since no N e w England state presently has a specific law to the contrary, we support the view that a physician who provides counseling or contraceptive care to a mature minor without parental consent or notification faces little risk of liability. The Doe v. Irwin case adds considerable support to this view. We are unaware of any suit in which a physician was successfully sued for counseling or prescribing birth control devices for a minor. The physician, of course, is under no legal obligation to prescribe birth control pills or devices to a minor and may refuse to treat such patients because of his or her own moral, religious, medical, or other beliefs. If the physician refuses to treat a minor patient, however, we believe that the preferable course of action is to advise the teenager where to obtain help, and for the physician to make an appropriate referral. By this means, a possible claim of abandonment can be avoided. The status of the "immature minor" remains unclear. A minor under the age of 15 years may still be able to give an informed consent. On the other hand, when 12-year-olds have sexual intercourse, for example, it may signify "acting out" behavior in the context of a family problem, and parents may already know or suspect their child's behavior (7). There is almost no legal precedent in this area, but similar principles may apply. The physician's first ethical concern is the welfare of his patient. If the physician determines that the use of contraceptives will serve the patient's best interests and are medically indicated, it is unlikely that he or she would be found legally liable for acting on a medical-ethical belief (8). The status of the so-called "squeal rule," has been resolved. On December 1, 1983, the Reagan administration announced that it had given up its attempt to force federally funded family planning services to "notify the parents or guardians of unemancipated minors when prescription drugs or prescription devices are provided to such minors" (Associated Press, December 1, 1983). Under the proposed regulation, grantees would have been required to notify the parents within ten days after prescription drugs
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or devices had been provided, and they would have had to inform the minor, prior to provision of the services, of the notification requirement• The regulation was overturned by rulings in federal courts of appeals in Washington and New York (Planned Parenthood Fed'n of America v. Heckler, 712 F.2d 650 (D.C. Cir. 1983); N.Y.v. Heckler, 719 F.2d 1191 (2d Cir. 1983)).
Abortion Since the Supreme Court's landmark decisions in 1973 (Roe v. Wade and Doe v. Bolton), which held that women have a constitutional right--with the concurrence of their physicians--to obtain abortions, a number of Supreme Court decisions have dealt with abortions for minors. In Planned Parenthood of Central Missouri v. Danforth in 1976, the Court ruled that a "State may not impose a blanket p r o v i s i o n . . , requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy" (428 U.S. 74 (1976))• However, the Court also pointed out that it was not suggesting that "every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy." In Bellotti v. Baird in 1976 and 1979, the Court applied the following criteria in consideration of a Massachusetts law that required the written consent of both parents or a Superior Court order before a minor could obtain an abortion: Every minor must have the opportunity--if she so desires--to go directly to a court without first consulting or notifying her parents• If she satisfies that court that she is mature and well enough informed to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent. If she fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion nonetheless would be in her best interests. If the court is persuaded that it is, the court must authorize the abortion. 443 S. Ct. 647-648 (1979). The Supreme Court in H . L . v . Matheson in 1981, upheld a Utah law requiring notification of the parents of an unemancipated unmarried minor before an abortion is performed. Despite the widespread publicity it attracted, this ruling was quite limited in scope. The only issue before the Court was the constitutionality of a statute that required a physician to give notice to parents "if possible" before performing an abortion on a minor who was dependent
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upon her parents, did not make any claim to be a "mature minor," and did not claim to be emancipated by marriage or otherwise. The Court ruled that the law in question gave "neither parents nor judges a veto power over the minor's abortion decision" and therefore was constitutionally acceptable (450 U.S. 411-413 (1981)). Most recently, the Supreme Court (June 15, 1983) reconsidered the whole question of parental consent in connection with abortions performed on minors (City of Akron v. Akron Center for Reproductive Health, Inc., and Planned Parenthood Association of Kansas City, Mo., Inc. v. Ashcroft). The Court reaffirmed its previously expressed position that states may require parental or judicial consent before an abortion is performed on a minor. A state restriction that required parental consent would be invalid, however, unless the minor had access to court proceedings wherein the minor could demonstrate sufficient maturity to make an abortion decision herself, or, in the absence of such maturity, demonstrate that an abortion would be in her best interest• The Court also stated that an emancipated minor clearly could consent to abortion• The Court explained its position in the Ashcroft case: As we noted in City of Akron, the relevant legal standards with respect to parental consent requirements are not in d i s p u t e . . . A State's interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial• It is clear, however, that "the State must provide an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests"• • . . (Notes omitted•) Nos. 81-1255, 81-1623, Slip Op. at p. 14, 51 U.S.L.W. 4787. As in the Matheson case, the Court emphasized that if a State has a consent statute, once a minor is determined by a court to be mature, the abortion decision is hers, and not that of the court or her parents. In New England, three states currently have laws that deal specifically with the abortion consent issue. Massachusetts and Rhode Island modified their statutes in accordance with the second Bellotti decision: an unmarried minor who seeks an abortion in those states must have the consent of both her parents or, if she is unwilling to ask their permission or they deny it, the consent of a superior court judge• Unless the woman has married, this consent requirement applies even if the teenager is a mature minor, is emancipated, or is already a parent. Both parents must consent, or the minor is forced to obtain a court
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order, although the custodial parent's consent can suffice if her parents are divorced. In the first seventeen months after the law took effect in Massachusetts (April, 1981), 1,571 minors elected to go to court rather than ask their parents' consent for an abortion, and only two minors were refused abortions by the courts (9). Maine's parental notification statute requires notification of one parent of any unemancipated minor under the age of 17 years at least 24 hours before she undergoes an abortion. Since Connecticut, N e w Hampshire, and Vermont have no statutes that deal with minors' abortions, we believe that in these states an abortion may be performed on the informed consent and signature of a mature or an emancipated minor. In the case of unemancipated minors, it is always preferable to attempt to obtain parental consent if the minor does not object. If the minor does object, but is deemed to be mature by the physician, careful documentation should be included in the chart before the physician proceeds with the procedure. If the minor is deemed immature, her confidentiality may have to be breached. One major abortion clinic in Connecticut requires teenagers under the age of 15 years to have an adult--related or n o t - - " s i g n for them." Only under these conditions will an abortion be performed; there is, however, no statutory basis for this rule. If a question exists about the minor's maturity, a second physician should be consulted to ascertain his or her opinion, and the minor's written consent should be obtained by the attending physician. If the abortion is to be performed in a hospital, we suggest that the Chief of Obstetrics and Gynecology or his designee be
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chosen to give the second opinion and authorize the procedure. Under no circumstances should an abortion
be performed when the patient herself refuses to give her consent, regardless of her degree of maturity or the wishes of her parents. In all N e w England states, a minor cannot be sterilized (except where necessarily incidental to medically indicated treatment such as for cancer or severe trauma) or be used as a living donor of tissue or organs without a court order. This artide is not intended to give specific legal advice. If legal advice is required, the services of a knowledgeable attorney should be sought.
References 1. Strasburger VC, Eisner JM. Teenagers, physicians, and the law in Connecticut, 1982. Conn Med 1982;46:80-4. 2. Committee on Legislation, Society for Adolescent Medicine. A model bill for minors' consent to health services. Pediatrics 1973;52:750-1. 3. Silber TJ, ed. Ethical issues in the treatment of children and adolescents. New Jersey: Slack Inc., 1983. 4. Pilpel H. Minors' rights to medical care, Albany Law Review 1972;36:462-80. 5. American Academy of Pediatrics. The implications of minor's consent legislation for adolescent health care; a commentary. Pediatrics 1974; 54:481-5. 6. The Alan Guttmacher Institute. Teenage pregnancy: The problem that hasn't gone away. New York; 1981. 7. Turetsky RA, Strasburger VC. Adolescent contraception: review and recommendations. Clin Pediatr 1983;337-41. 8. Holder AR. Legal issues in pediatrics and adolescent medicine. New York, John Wiley & Sons, 1977. 9. Donovan P. Judging teenagers: How minors fare when they seek court-authorized abortions. Fam Plann Persp 1983;15:25967.