Minor's Rights Versus Parental Rights: Review of Legal Issues in Adolescent Health Care

Ann Maradiegue, C-FNP, MSN

Disclosures

J Midwifery Womens Health. 2003;48(3) 

In This Article

Laws Governing the Right to Consent for Medical Care

In 1971, the Twenty-sixth Amendment to the Constitution allowed citizens of the United States 18 years and older the right to vote. This established the age of majority at 18 years of age and led most states to lower the age of majority from 21 to 18.[17] In all but four states, the age of majority is 18 years; in Alaska and Nebraska, the age of majority is 19 years, and in Pennsylvania and Mississippi the age of majority is 21 years. Although the age of majority in Mississippi is 21 years, this state does allow an 18 year old to provide consent for his or her own health care.[18]

Laws that affect the minor's right to consent to medical care have been developed under the precedent of parental autonomy.[4,11,14] In adolescents under the age of majority who receive health care services, the American Academy of Pediatrics has a long-standing policy statement encouraging physicians and parents to include adolescents in the decision-making process, but the parental autonomy and parental right to give consent for a minor is the standard.[8]

The elements required for informed consent differ from state to state. There are two basic standards required for informed consent: the medical community standard and the material risk or prudent patient standard.[19] Under the "medical community" standard of informed consent, which is the standard in most states, the clinician's duty to inform the patient and obtain consent depends on the circumstances of the case and the general practice of the medical community in similar cases.[19] To prevail against a physician's breach of this duty, a patient must prove the physician did not disclose necessary information and by not disclosing this information the patient sustained injury.[19]

The "prudent patient" standard of informed consent focuses on the risks a reasonable person considers when making a decision to undergo treatment. This standard usually requires the testimony of an expert witness. The court must decide what a reasonable patient needs to know to make an informed decision, not what a reasonable physician would have done. The prudent patient standard is based on the premise that the individuals have the right to make their own health care decisions.[19]

Whether the "prudent patient" or the "medical community" standard is applied depends on the laws in the state and the circumstances surrounding informed consent. For example, the American College of Emergency Physicians has been active in encouraging states to adopt the "prudent person" standard, thereby shifting the responsibility to the patient to make the decision to access emergency medical care.[20] Conversely, health care that is not the "medical community standard" can result in the health care provider being responsible for a patient injury and malpractice dependent on the testimony of an expert witness.[19]

There are several components of informed consent that are important to consider, especially when caring for adolescents. First, patients should have explanations in understandable language, including the potential risks and benefits of the proposed treatment. Second, the provider should assess the patient's understanding of the information given to them. Third, the provider should assess the patient's ability to make the necessary decision. Finally, the provider should determine that the patient is not coerced into a particular medical alternative.[19] Empirical data indicate 14 year olds may have well-developed decisional skills and are capable of complex decisions. Their ability to give informed consent, however, may be limited by law.[8]

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