Practice Tips

States have historically recognized the right of parents to make health care decisions on their children's behalf. This is based on a societal norm or belief that minors lack the maturity and judgment to make fully informed health care decisions on their own behalf. There are situations, however, where parental consent is not reasonable or appropriate. The understanding that some minors have the capacity and perhaps the right to make important decisions about their health care treatment has been established in federal and state policy.

Apart from these statutes, which give minors the right to consent to specific kinds of health care treatment, moreover, the usual requirement of parental consent may be trumped either by the unique circumstances giving rise to the need for treatment or by the fact that the patient, although technically a minor, is entitled to be treated as an adult. For example, just as an adult's consent need not be elicited before one renders emergency treatment, it is unnecessary to wait and obtain parental consent to treat a child in the event of a medical emergency.

Additionally, a minor who is "emancipated" or who lives as an adult does not require parental consent for health care treatment. Generally, the treatment of an emancipated minor is permitted so long as the minor is able to give an informed consent.

Depending on state law, a minor may be considered emancipated if one of the following applies:

• Lives separately and is independent of parental support
• Married (is or was legally married)
• A member of the Armed Forces (is or was)
• Emancipated by Court Order

Balancing the rights of parents and the rights of minors remains an area of controversy. There is an acknowledgment on the part of lawmakers that while parental involvement is desirable, many minors will not seek services if they have to inform their parents. Most youth-serving agencies and medical professionals believe that access to confidential services is essential because many sexually active adolescents will not seek care if they have to inform a parent or have their parent's consent. Minors' consent laws become extremely important for these situations. The laws encourage young people to seek the health care services they need and allow them to speak candidly and confidentially with their health care providers.

Ensuring Confidentiality When Minors Consent to Health Care Treatment

As provided by law, a minor who may consent to healthcare services is entitled to the same confidentiality afforded to adults. When a minor who has the right to consent to their own treatment presents for care, a provider should assure they are asked how they wish to pay for their treatment. Minors should always be informed that if their insurance is billed for the visit, their parents will receive notification from the insurer that the visit occurred. Offer the minor the option to make other payment arrangements to maintain the confidentiality of their treatment. (If a minor comes to an Emergency Department for care, assure no payment questions are asked until the minor has received a Medical Screening Exam (MSE) to avoid an EMTALA violation.)

Additionally, information recorded in a minor's record that is protected by statute should only be released on consent of the minor.

When Persons Other Than Parents May Give Permission to Treat a Minor

At times, a parent may choose to give another person the power to consent to medical and/or emergency treatment for their child on their behalf. Documents presented to health care professionals, such as "consent to treat, "authorize," or "authority," must be examined carefully. The document and the presenting adult should be reviewed for authenticity:

• Is this person able to give permission for the treatment?
• Is this a parent, a legal guardian, or an adult with a statement from the parent?
• Does the document delegate to this person authority to consent to the treatment of a minor?
• Do state regulations require the document to be notarized?

Imminent Harm

Assure that in circumstances where there is imminent harm to the minor patient or others, confidentiality may be forsaken to obtain help for the patient. The patient should be informed of what information needs to be disclosed and to whom. The patient should also be given the opportunity to make the disclosure to their parents or others on their own. Specific instances include:

• Suicidal ideation
• Homicidal ideation
• Physical abuse
• Sexual abuse
• Behaviors that put one at risk for physical harm

MAINE LAW

In Maine, there is a law that provides for the delegation of powers by a parent or guardian in Title 18-C Section 5-126: "A parent or guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding 12 months, any of that parent's or guardian's powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward. A delegation by court appointed guardian shall become effective only when the power of attorney is filed with the court." This statute is designed to facilitate medical care and treatment in cases where the parent or guardian is unavailable.

Maine law does not explicitly require that this document be formally witnessed or notarized, although an attorney would caution the parent to have the document witnessed.

In review, a minor may consent to the following care by Maine law:

• When the minor meets the definition of Emancipated Minor
• Blood donation at age 17
• Sexual assault forensic exam
• Treatment for sexually transmitted diseases (STDs)
• Treatment for abuse of drugs or alcohol
• Certain psychological services associated with the abuse of drugs or alcohol
• Treatment of STDs or drug or alcohol abuse in the hospital setting, but parental consent is required if the hospitalization continues for more than 16 hours
• Family planning services, including contraception, pregnancy testing, and emergency contraception
• A minor may consent to an abortion if they accomplish one of the following:
  • Provide the physician performing the abortion with their informed written consent and the written consent of a parent or another adult family member such as an aunt or grandmother.
  • Provide the physician performing the abortion with their informed written consent and receive abortion counseling from a physician or an approved counselor who may be a psychiatrist, psychologist, social worker, ordained clergy member, PA, NP, guidance counselor, RN, or LPN. Provide the physician performing the abortion with their informed written consent and a court order.

NEW HAMPSHIRE LAW

For general medical care of a minor, the New Hampshire Medical Society states, "Any minor of sound mind is legally capable of consenting to medical treatment provided that such minor is of sufficient maturity to understand the nature of such treatment and the consequences thereof."

New Hampshire does not provide a statute or code addressing the specific delegation of powers by a parent or a guardian to another person to consent or to withhold treatment for their child in the parent’s/guardian's absence. Parents commonly write authorizations for a friend or relative to have permission to secure care for a child in the parent's absence. In review, a minor may consent for the following care by NH Law:

• Blood donation at age 17
• Sexual assault forensic exam
• At age 14 and older for treatment of STDs
• At age 12 and older for drug and alcohol abuse treatment

A minor's ability to consent to other services, including contraceptive services or mental health services is dependent upon the provider's determination that the minor is competent to make an informed consent.

VERMONT LAW

Vermont also does not provide a statute or code addressing the specific delegation of powers by a parent or a guardian in their absence to another person to consent for medical or emergency treatment of a minor.

In summary, by executing a power of attorney, a parent or guardian may delegate to another person the right to consent or withhold the medical care of a minor. This document reduces problems relating to consent for urgent and emergency treatment. It would be advised to have the document witnessed by an attorney. In review, although Vermont law is vague, minors have historically consented to their own treatment in the following:

• Minors of any age will be cared for in emergency situations which necessitate immediate treatment.
• Recognized as an Emancipated Minor by order of the Probate Court.
• Minors who are married or have ever been married; minors on active U.S military duty.
• 18 VSA 4226 (a) and (b): Physician determines it is not in the best interest to inform parents, two physicians sign the treatment decision that the minor fully understands. Dated documentation that the minor understands all inherent risks and signs validating consent and understanding of the recommended treatment is essential.
  • 12yo may seek drug/alcohol abuse care and sexually transmitted disease care. Exception, if a minor requires immediate hospitalization for treatment of these conditions, the parents must be notified of the hospitalization.
• 17yo can donate blood.
• 14yo or older may voluntarily admit themselves to a hospital for mental health related treatment if they give informed consent in writing.
• Minors under 14 may admit themselves to a hospital for mental health related treatment by providing their own written informed consent and a written application from a parent or guardian. 18VSA 7503
• Minors of any age may give informed consent to medical treatment associated with rape, incest, or sexual abuse. 33VSA 4911 Health care providers are required to report such incidents to the Department of Children and Families within 24 hours.
• Minor of any age may provide their own informed consent for the termination of pregnancy, or to receive medical treatment necessary to obtain contraceptive devices and medications.

MASSACHUSETTS LAW

Under Massachusetts law, minors (persons under the age of 18) are generally considered to lack the legal capacity to consent to medical treatment.

Massachusetts law provides that a minor may give consent to medical or dental care if he or she is:

• Married, widowed or divorced
• A parent of a child
• A member of the armed forces
• Pregnant or believes herself to be pregnant
• Living separate and apart from their parents or legal guardian and is managing their own financial affairs
• A minor may consent to family planning services
• Is twelve years of age or older who is found to be drug dependent by two or more physicians may give consent to treatment related to this diagnosis. Chapter 112- Section 12E
• Is sixteen years of age or older may commit themselves to a mental health facility
• Children who believe they have contracted a dangerous, contagious disease, diseases dangerous to public health, and STDs

Abortion requires the consent of the patient (minor) as well as both parents. Chapter 112- Section 12S

• If under state law a minor can consent to their own medical treatment, then the minor alone has the right to consent to release of information concerning that treatment. 45 C.F.R. §164.502(g)(3). Under Massachusetts law, a minor can consent to their own medical treatment and therefore holds the authority to consent to release of information regarding medical treatment.

Additionally, most confidentiality laws contain a so-called “safety” or similar exception, which allows (and in some instances, requires) a mental health provider to disclose confidential information to protect the patient or another person from serious harm.