For physicians treating minors, the protocol for consent is deceptively simple: Obtain a parent’s consent before providing medical care. The changing definition of “family” and the growing rights of minors with respect to their own medical treatment and medical confidentiality have, however, complicated the issue for physicians. (Most states define minors as those under the age of 18.)

These days there are several exceptions to the parental consent policy. Perhaps the most significant are the statutory exceptions that authorize minors to give consent for their own healthcare. Typically, these statutes are based on either the minor’s legal status or the type of healthcare services sought.

Services for Which Minors May Give Consent
Each state has one or more statutes that permit minors to give consent for specific services. These services usually include the following:

• pregnancy care and prevention (including contraceptive services, prenatal care and delivery services)
• testing and treatment of STDs, including HIV and AIDS
• examination and treatment related to rape and sexual assault
• counseling and treatment for drug and alcohol abuse
• mental health treatment.

Some state statutes also specify the age at which a minor may consent to these services (typically between ages 12 and 15). As is the case with competent adults, the ability to give consent grants the minor the right to c o n f i d e n t i a l i t y. Physicians cannot give parents or guardians access to information regarding a medical treatment or procedure to which a minor has consented. Physicians must review their state laws for clarification on the services for which minors may give consent, and the age at which such consent is allowed.

Legal Circumstances Under Which Minors May Give Consent
Every state has also enacted one or more statutes that allow minors who have attained a specific legal status to be treated as adults. The following two groups of minors may therefore be authorized to give consent for medical treatment:

• mature minors
• emancipated minors (which may include married minors, minors who live apart from their parents and support themselves, minors in the armed forces and minors who are themselves parents).

The mature-minor doctrine has emerged mainly from state court decisions. It recognizes that some minors demonstrate the cognitive maturity to give informed consent. The ability to give consent is typically based on the minor’s developmental maturity and the risks of the proposed procedure. It is unlikely that a physician will be sued for failure to obtain parental consent when the minor is capable of giving an informed consent and the treatment is low risk and for the minor’s benefit.

The basic criterion for determining whether a minor is capable of giving informed consent is the same as that used for adults: Does the patient understand the risks and benefits of the proposed treatment, as well as alternative treatments and their risks/benefits? The patient must be able to make a voluntary choice among the options.

Regarding emancipated minors, some states have specific statutes that delineate the circumstances (such as those previously listed) under which minors are considered legally emancipated. Also, some states have established legal procedures through which minors may petition the court to be declared legally emancipated.

Who Can Provide Consent for a Minor When He or She Cannot?
When a minor needs medical treatment but lacks the legal capacity to consent, a physician may encounter several scenarios. In emergent situations, no prior consent may be required to provide medical care to a minor. In nonemergent situations, physicians are often faced with the need to document consent from separated or divorced parents, stepparents, grandparents, guardians, foster parents, social workers, probation officers or juvenile courts. Each situation is subject to its own set of laws, which vary from state to state.

In the case of divorced parents who share legal custody, for instance, usually the consent of one parent is enough unless there is a court order to the contrary. Also, there typically is no distinction made between legal custody and physical custody when it comes to providing consent and accessing the child’s medical record.

Conclusion
Physicians who treat minors must familiarize themselves with the laws and regulations in their state that affect the provision of services. Most states have decided that the need to provide confidential services to teens outweighs the need for parental notification when dealing with specific high-risk issues.

Accordingly, laws have been expanded to give adolescents access to certain healthcare services they might not otherwise seek because of a lack of privacy and confidentiality. Confidential care for minors should not, however, preclude an attempt at family communication. Physicians should encourage dialogue between the child and responsible adult(s) regarding healthcare decisions.

When the minor lacks the right to consent to care or to control disclosure, it is advisable to discuss the limits of confidentiality at the outset of treatment. Often, any issues surrounding confidentiality and disclosure can be resolved with a frank discussion among physician, patient and parents or guardians. This discussion must be documented in the minor’s medical record.