Thursday, January 30, 2014


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The traditional rule is that minors [people under 18-years-of age] are legally incompetent and cannot consent to or refuse medical treatment.  Those decisions are in the hands of a minor's guardians, typically the parents.

However, express legislation has carved exceptions to the general rule.

In California children as young as 12 can get some types of medical attention without parental knowledge or consent.  12-year-olds and HPV vaccine  and New Law

In addition, court decisions in several states have created a 'Mature Minor' doctrine that allows minors meeting specific criteria to consent to medical treatment without parental consent, albeit, sometimes with court intervention.

     The following links provide more information on these issues:

Mature Minor Doctrine  and also look at this information on Illinois law:  Illinois Consent & Confidentiality

Another important exception relates to emancipated minors.  An emancipated minor is one who is effectively living as an adult and not under the supervision of his parents or other guardians.  Typically, an emancipated minor will be one who has married, who has joined the military, or who has been emancipated by court order.

Florida Statute 743.01 ***Married Minors is Florida's law relating to the emancipation of married minors.

California's Emancipation of Minors Law shows how that State approaches the issue.

An emancipated minor does not need parental or guardian consent for a medical procedure.  He is essentially a competent adult who can give consent for his own treatment and for the treatment of his children.

     When Natural Guardians Fail

  It sometimes happens that parents appear clearly not to be acting in the best interests of a child who is in very serious need of health care.  Often, but not always, this problem will arise because of religious issues that the parents' believe prevent them from allowing treatment like blood transfusions or chemotherapy for their child.  Overriding the parents' wishes when they are still in a position of authority can be risky in any event, and particularly if the child still dies.  From their point of view you not only killed their child but you may have sent her to Hell as well.

One solution is to set the parents aside as guardians and have the court appoint a guardian ad litem who will temporarily have the legal authority to make the necessary treatment decisions for the child.  In many communities the legal mechanism is in place for appointing a guardian ad litem very quickly.

This does not always turn out quite as expected.  An Amish girl and her family were in hiding after an Ohio court ruled on her treatment.   However, after successfully dodging the court and getting alternative therapy the girl began responding well.    Her court-appointed guardian then elected not force the girl to have chemotherapy.

Perhaps the parents knew better than the experts after all.

UPDATE:  The Connecticut Supreme Court has ruled that the State can force chemotherapy on a teen over the objections of the minor and her parents.

This is not a surprising decision in light of what we have discussed above.

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