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Consent for Minors

Overview | Clinical Scenarios | Additional Tips | References
By Peter Ash, MD

OVERVIEW

General Principles

  • Except in emergencies, legal consent needs to be provided for medical, mental health, and substance abuse treatment of minors, generally defined as those youth under 18 years of age.
  • As used here, consent means informed consent.
  • Parents or guardians, in most cases, can provide legal consent for medical interventions for their minor children. There are some circumstances in which the minor must also assent or consent.
  • There has been increasing recognition of adolescents’ cognitive ability to make decisions similar to adults1,2 and to support their participation in making medical decisions.3,4
  • Consent to medical and mental health treatment is governed by state law, and laws vary from state to state, so it is important to know the law of the state in which one is practicing.
  • Even within a state, consent law varies depending on the type of treatment under consideration (e.g., substance, mental health, medical -with carve outs for contraceptive services and/or STD treatment).
  • Many states allow some minors — most often adolescents – to provide consent independently of parental involvement for some types of treatment.
  • Consent for research involving minors is governed by rules that are somewhat different from consent for treatment.

Jurisdictional Considerations

Laws vary in terms of which minors can provide consent for which types of treatment.5 The most common ways of delineating a class of minors for consent purposes are:

  • By age (e.g, minors over the age of…)
  • “Mature minors,” often not specifically defined
  • Minors whom a physician assesses as having the capacity to provide informed consent
  • Emancipated minors: typically minors who are married, in the military, self-supporting and living independently, or who have been adjudicated as emancipated by a court.

State laws specify the situations in which a certain class of minors can provide consent, and often have different rules depending on the type of treatment. Laws in a particular state can be found by doing an internet search, although state law evolves, and some sites may not be fully up to date (particularly with recent changes in abortion laws). Links that provide information for all states are given below:

State laws by type of treatment

CLINICAL SCENARIOS

Scenario #1: A 14-year-old girl presents for outpatient mental health treatment at a community clinic and asks that she be seen without her parents being informed.

  • Depending on the state, the girl could be seen for treatment. About a third of states allow 14 year-olds to consent to outpatient mental health treatment. As a practical matter, because parents will typically receive a bill or insurance notice, outpatient treatment that takes place without a parent’s knowledge is fairly rare. Often the early stages of therapy involve helping the adolescent talk to their parents about their needs.

Scenario #2: A 14-year-old boy presents for substance abuse treatment at a community clinic and asks that he be seen without his parents being informed.

  • Most states, but not all, allow 14 year-olds to consent to outpatient substance abuse treatment out of a recognition that adolescents have high rates of substance abuse and may not want their parents to know about it. Some states allow adolescents to consent to counseling for substance abuse treatment, but do not allow for minors’ consent to medication assisted treatment.

Scenario #3: A 16-year-old girl presents to an emergency department with depression and asks for inpatient psychiatric treatment which a physician determines would be clinically appropriate.

  • About two-thirds of states allow some adolescents to consent to inpatient psychiatric admission. These laws vary along such dimensions as different age cut-offs, a determination of the adolescent’s competence to make an informed decision, and whether the consent is valid for inpatient treatment as well as admission. As a practical matter, if an adolescent is admitted, the parents are usually informed, either as a legal requirement or so they don’t worry about why the adolescent hasn’t returned home. It’s fairly rare that adolescents actually consent to admission independent of their parents, the most common scenario being that an adolescent presents to the emergency department with suicidal ideation and the parents cannot be immediately located, so if the adolescent can consent, the admission can be deemed voluntary and the minor does not have to be civilly committed.

ADDITIONAL TIPS

  1. Be aware of the state law governing the particular clinical situation.
  2. Document who provided consent when treating minors, as well as the nature of the information communicated in the consent process.
  3. If the minor is providing consent, document the competency of the minor to make the treatment decision (e.g., “The treatment was discussed with the patient who demonstrated an understanding of the benefits, possible risks, and alternatives to the proposed treatment”).

REFERENCES

  1. Weithorn LA, Campbell SB. The competency of children and adolescents to make informed treatment decisions. Child Dev. 1982;53(6):1589-98.
  2. Grootens-Wiegers P, Hein IM, van den Broek JM, de Vries MC. Medical decision-making in children and adolescents: Developmental and neuroscientific aspects. BMC Pediatrics. 2017;17:120. doi: 10.1186/s12887-017-0869-x. PubMed PMID: PMC5422908.
  3. American Academy of Pediatrics Committee On Bioethics. Informed Consent in Decision-Making in Pediatric Practice. Pediatrics. 2016;138(2):e20161484. doi: https://dx.doi.org/10.1542/peds.2016-1484. PubMed PMID: 27456514.
  4. American Law Institute. Section 19.01. Consent to treatment by mature minor. Restatement of the Law: Children and the Law. Philadelphia, PA: The American Law Institute; 2019. p. 283-325.
  5. Kerwin ME, Kirby KC, Speziali D, Duggan M, Mellitz C, Versek B, et al. What can parents do? A review of state laws regarding decision making for adolescent drug abuse and mental health treatment. Journal of Child & Adolescent Substance Abuse. 2015;24(3):166-76. Epub 2015/03/06. doi: 10.1080/1067828X.2013.777380. PubMed PMID: 25870511.
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