ERIC EJ1062948: Children's Health in a Legal Framework

2015·0.3 MB·English

by  ERIC

Children’s Health in a Legal Framework
Children’s Health in a Legal Framework
Clare Huntington and Elizabeth Scott
Summary
The U.S. legal system gives parents the authority and responsibility to make decisions about
their children’s health care, and favors parental rights over society’s collective responsibility to
provide for children’s welfare. Neither the federal government nor state governments have an
affirmative obligation to protect and promote children’s health, nor do children have a right to
such protection. In this sense, write Clare Huntington and Elizabeth Scott, policies to promote
child health in this country, such as those discussed elsewhere in this issue, are optional.
Our libertarian legal framework grants parents broad authority to raise their children as they
see fit. Parents can refuse recommended medical treatment for their children, and when
they do so, courts respond with deference, particularly when parents’ objections are based on
religious beliefs. Parental authority has its limits, however. For example, the government can
intervene to protect children’s welfare in cases of medical neglect or when the child’s life is
in danger. Additionally, the law sometimes limits parental authority over older children. For
example, teenagers may be able to refuse some treatments, such as psychiatric hospitalization,
over their parents’ objections. Older minors may also have access to treatments such as family
planning services without their parents’ consent.
Because the government has no positive obligation to promote children’s health, write
Huntington and Scott, children’s health programs are often underfunded and vulnerable to
political pressure. Programs are also more likely to focus on responding to family crises than
on helping parents raise healthy children. In this environment, policy makers, researchers, and
advocates must build political support by showing that investments in children’s health not
only benefit children but also promote social welfare.
www.futureofchildren.org
Clare Huntington is a professor at the Fordham University School of Law. Elizabeth Scott is a professor at Columbia Law School.
Mark Courtney of the University of Chicago reviewed and critiqued a draft of this article.
VOL. 25 / NO. 1 / SPRING 2015 177
Clare Huntington and Elizabeth Scott
In the United States, parents have wellbeing is that efforts to improve children’s
primary responsibility for their health must be undertaken within the reality
children’s health and have a corre- of this libertarian framework. The U.S. legal
sponding right to make health-care framework is germane to the other articles
decisions for their children. This in this issue because it demonstrates that
parental power, however, is not absolute. any policy proposal should be understood as
Under its police power, the state can some- optional from the state’s perspective. It also
times override parental rights to promote underscores the need to develop political
social welfare: thus, for example, the state support for any initiative to improve health
can require that children be vaccinated
services for children. Often, as this article
against disease.1 The state can also pro-
shows, the state intervenes to promote
tect the welfare of individual children, if,
children’s health only in response to com-
for example, their parents act in ways that
pelling social welfare needs such as reduc-
threaten their health. Parental rights are
ing teenage pregnancy, juvenile crime, and
qualified in another way as well. Lawmakers
communicable diseases, or to crises in which
have authorized adolescents to make some
parents abuse their children or fail to provide
health-care decisions without involving their
adequate care.
parents. Pregnant minors have a limited right
to obtain abortions and, in many states, birth
In this article, we flesh out the legal frame-
control treatment is available to teenag-
work that shapes and constrains children’s
ers.2 Finally, although not a legal exception,
health policy under American law. We focus
in practice the government tends to defer
first on parental rights doctrine under con-
less to the parental rights of low-income
stitutional and statutory law, its justification,
parents and to condition public assistance
and the limits of parental rights. We exam-
on considerable intrusion into the family.
ine an important conflict between parental
The legal system deals very differently with
rights and the state’s interest in children’s
most families, whose parental rights are
health involving cases where parents’ reli-
strongly protected, and low-income fami-
gious beliefs deter them from seeking medi-
lies, whose parental rights may receive little
cal treatment for their children. We then
consideration.
explore the policy implications of the liber-
tarian framework, explaining that because no
In this legal regime based on parental rights,
support for families is legally mandated, the
the state has the power to limit parental
libertarian framework encourages a reactive
authority, but it has no affirmative obliga-
approach to child wellbeing based on crisis
tion to help parents care for their children’s
health needs unless it undertakes to do so, intervention rather than prevention. Finally,
as with Medicaid and the Children’s Health we examine adolescent health policy, an area
Insurance Program (CHIP). Moreover, the where the law has sometimes departed from
government’s deference to parents may deter the parental rights approach, first by giving
the state from providing useful services and adolescents authority to make some treat-
support. ment decisions and, second, by intervening
through juvenile justice policies that man-
An important implication of the United date rehabilitation programs for delinquent
States’ approach to children’s health and youth and their families.
178 THE FUTURE OF CHILDREN
Children’s Health in a Legal Framework
Legal Framework: Parental Rights be found in violation of the state’s compul-
and State Authority sory school attendance law for withdrawing
their children from public school after the
The U.S. legal system is based on strong
eighth grade to train them for their religious
principles of individual liberty and autonomy
roles in the Amish community.5
and relatively weak commitment to collective
responsibility for the welfare of individual
The Supreme Court has also made clear that
members of society. This libertarian strain in
parental rights are not absolute.6 A statute
our political and legal history is embodied in
that limits parental authority may be justified
constitutional parental rights doctrine elabo-
because it promotes child welfare (or social
rated by the Supreme Court in the twentieth
welfare in general) under the government’s
century. But the court has also recognized
police power. This was the justification for
that parents’ authority has limits when the
Progressive Era laws in the early twentieth
health and welfare of their children are at
century requiring school attendance and
stake and, in a series of important opinions,
prohibiting child labor. The state also has the
it has sought to strike a balance between
authority to protect the welfare of individual
parental rights and the state’s authority to
children and other vulnerable members of
intervene to protect children.
society who are unable to look out for their
own interests. This authority is the basis for
Beginning with two landmark opinions in
policies that allow the state to intervene in
the 1920s, the court has held that parents
families in child maltreatment cases.
have a liberty interest, protected under the
14th Amendment of the U.S. Constitution,
The upshot is that parents have broad con-
to raise their children as they see fit, free
stitutional authority to guide their children’s
from undue interference from the state.
upbringing, subject to some constraints
The early Supreme Court opinions, Meyer
embodied in the state’s legitimate interest
v. Nebraska and Pierce v. Society of Sisters,
in protecting children. But the state has no
both dealt with state statutes seeking to limit
obligation to protect children or promote
parents’ freedom to guide their children’s
their welfare, nor do children have a right
education, by requiring that instruction be
to state protection. Indeed, in a famous case
in English and that children attend pub-
that arose in the 1980s, the Supreme Court
lic school, respectively.3 In each case, the held that the state had no liability when an
Supreme Court struck down the statute as abusive father grievously injured and dis-
unreasonable interference with the parents’ abled his child, even when the Department
liberty to direct their children’s education of Social Services had been notified several
and upbringing, a role that parents have times of the father’s abuse and failed to inter-
“the right, together with the high duty” to vene.7 Unless the state has actually taken
perform.4 The court has been particularly a child into custody or otherwise assumed
deferential when the claim of parental rights responsibility for her, the government has no
is combined with a First Amendment claim duty to provide for her welfare.
that a state law interferes with the parents’
right to teach their religious faith to their Furthermore, the United States has not
children. In Wisconsin v. Yoder, for example, undertaken any obligation to promote
the court held that Amish parents could not children’s health and wellbeing under
VOL. 25 / NO. 1 / SPRING 2015 179
Clare Huntington and Elizabeth Scott
international law. The United Nations their upbringing.11 Giving parents respon-
Convention on the Rights of the Child sibility also reduces the direct financial
(CRC), for example, states that “the fam- burden on and cost to society.
ily, as the fundamental group of society and
the natural environment for the growth and In health care, parents’ authority includes
wellbeing of all its members and particularly the right to consent to medical treatment
children, should be afforded the necessary for their children, and also the right to
protection and assistance so that it can fully reject recommended treatment, discussed
assume its responsibilities within the com- below. Medical decisions require informed
munity.”8 Signatory countries have several consent by the patient—the ability to
obligations, including a duty to ensure that understand treatment information, com-
children have health care, adequate food, pare the risks and benefits of treatment
and education.9 Additionally, countries must options, and make a decision.12 Children
address “all forms of physical or mental vio- are assumed to be incompetent to make
lence, injury or abuse, neglect or negligent their own treatment decisions because of
their immaturity, and thus, under the law,
treatment, maltreatment, or exploitation,
including sexual abuse.”10 Every member a competent adult must provide consent.
Because parents are presumed competent
of the United Nations has ratified the CRC
and know their children better than other
except the United States and Somalia. The
adults do, the law views them as best situ-
United States’ stance appears to express
ated to perform this function. Moreover,
the libertarian values that shape its policy
parents are financially responsible for their
toward children generally.
children’s health care. Parental control over
Justifications for Parental health-care decisions is challenged only
Authority when parents are deficient or negligent in
carrying out this role, or when they reveal a
The constitutional framework in which
conflict of interest with their children.
parental rights play such a prominent
role has shaped legal regulation of the
parent-child relationship in many domains,
The assumption that
including health care. But deference to
parental authority under American law children can’t make their
is entrenched, in part, because it is sup-
own treatment decisions
ported by pragmatic justifications as well as
is probably accurate for
by libertarian principles. The law assumes
that most parents love their children, are
younger children, but likely
motivated to make decisions that promote
not for teenagers.
their welfare, and are best positioned to
know their needs. In this view, a parental-
rights approach ultimately promotes chil-
dren’s interests more effectively than any The assumption that children can’t make
alternative. Parents’ legal authority comes their own treatment decisions is probably
in exchange for the responsibility that they accurate for younger children, but likely not
bear in caring for their children and guiding for teenagers. Indeed, research has found
180 THE FUTURE OF CHILDREN
Children’s Health in a Legal Framework
that by age 14, adolescents’ cognitive abil- child, or, if the state determines that the
ity to understand and reason is sufficiently parents will not provide necessary medi-
developed that most teenagers are capable of cal treatment, the child might be placed in
making informed medical decisions.13 But in foster care.15
a legal framework based on parental rights,
In striking contrast, the general legal
children have little autonomy, and even
response to parents who refuse to consent
adolescents have limited authority to make
to beneficial treatment for their children
health-care decisions. As we discuss below,
is quite deferential. For example, the state
the law has carved out some exceptions to
can require parents to have their children
this general principle, where constitutional
vaccinated against communicable diseases,
interests or public health concerns are
but many states are reluctant to challenge
implicated. For routine health-care deci-
parents who refuse to do so.16 This has some-
sions, however, all minors are subject to their
times led to outbreaks of measles and other
parents’ legal authority, and parents must
preventable diseases.
generally consent to treatment.
State deference is particularly strong when
Parents’ Failure to Provide
parents refuse to provide treatment for their
Medical Treatment
children on religious grounds. These cases
Parental control includes the right to
have been treated as a special category,
decline as well as consent to medical treat-
distinct from other medical neglect cases.
ment for their children. This authority is far
Some religious sects oppose medical treat-
from absolute, however, and legal regula-
ment, and members may either decline to
tion constrains parents’ authority to refuse
obtain treatment for their children or refuse
or fail to obtain treatment deemed impor-
treatment urged by physicians. For example,
tant for their children’s health. In general,
Christian Scientists believe that physical ail-
when parents fail in this regard, the child
ments should be treated by Christian Science
welfare system may intervene on the basis
practitioners rather than medical doctors.17
of child maltreatment. State statutes that
These parents assert that they can refuse
define parental abuse or neglect usually
medical treatment for their children on the
include a provision that in cases of “willful basis of their parental rights and their First
or negligent failure of the parent or guard- Amendment right to raise their children in
ian to provide the child with adequate … their religious faith.
medical treatment,” the state may order the
parents to obtain treatment or even remove In contrast to their response to medical
the child to state custody.14 As with other neglect cases, legislatures and courts have
forms of maltreatment, low-income families largely respected these parents’ claims.
are more likely than others to be subject For example, in response to lobbying by
to intervention on the basis of medical Christian Scientists and other groups,
neglect, which may be one component of many states have enacted civil and criminal
a determination that a parent has gener- religious accommodation statutes. These
ally failed to provide for the child’s needs. laws define child neglect to exclude parents’
In these cases, the family might be offered good-faith decisions to treat their children
help in obtaining medical treatment for the solely by spiritual means, according to the
VOL. 25 / NO. 1 / SPRING 2015 181
Clare Huntington and Elizabeth Scott
tenets of an organized religion.18 Thus, such the treatment.22 Several legal scholars have
parents face neither liability nor the stigma sharply criticized this respectful approach,
and intrusion associated with a finding of but parental rights continue to be robust in
child abuse or neglect. These statutes do this context.23
not preclude the state from intervening to
direct that a child receive medical treatment How the Framework Affects
if nontreatment poses a serious threat to her Policy Choices
life or health. But such intervention occurs The libertarian framework, which favors
only if the child’s condition is dire and
parental rights over collective responsibility,
becomes known to authorities. Most courts
influences policy making in two significant
have found that parents who seek spiritual
ways. First, without an affirmative legal
treatment bear no liability if their children
obligation to promote children’s health, gov-
die because the children did not receive
ernmental investment is optional. Although
medical assistance.19
many children’s health programs exist, they
are often underfunded and are vulnerable to
A great deal of litigation has revolved around
budgetary and political pressures. Moreover,
states’ efforts to override parental authority
in our federalist system, broad discretion
when parents refuse to allow their children
translates into considerable variability among
to receive necessary medical treatment for
states in children’s health programs. Second,
religious reasons. In general, the judicial
the libertarian framework encourages a
response has been to order treatment when
reactive rather than preventive approach to
the parents’ refusal seriously threatens the
children’s health and wellbeing. Deference
child’s life or is likely to have severe and
to parental authority has produced a sys-
lasting health consequences, and when the
tem that primarily responds to family crises
proposed treatment is likely to have benefi-
rather than helping parents generally to raise
cial effects.20 Sometimes, courts have been
healthy children.
criticized for intervening too aggressively: In
a famous case involving a 15-year-old with
As Maya Rossin-Slater and Lawrence Berger
disfiguring neurofibromatosis, the court
and Sarah Font write elsewhere in this issue,
ordered dangerous surgery requiring blood
when it comes to funding, the government
transfusions over the religious objections of
has chosen to promote children’s health and
both the mother and the child, even though
family functioning through income supple-
the surgery would have been safer if post-
poned until the boy was an adult.21 But, in ments such as the Earned Income Tax
general, courts have been very deferential to Credit, food voucher programs such as the
parents’ religious objections to conventional Special Supplemental Program for Women,
medical treatment, occasionally even when Infants, and Children, parenting support
treatment represented the only hope for a initiatives such as the Triple P—Positive
child’s survival. A Delaware court upheld the Parenting Program and visiting nurse
right of Christian Scientist parents to refuse programs, and child development efforts
painful chemotherapy that offered their such as Head Start. These authors show that
young child, who suffered from Birkhett’s many such programs effectively promote
Lymphoma, a 40 percent chance of survival, children’s health and wellbeing as well as
even though he faced certain death without society’s interests.
182 THE FUTURE OF CHILDREN
Children’s Health in a Legal Framework
The authors show that many of these programs Additionally, the combination of optional
are also highly cost-effective. The programs government funding and the federal-
that Rossin-Slater categorizes as intensive ist system of government in the United
center-based early childhood care, for exam- States means that efforts to promote chil-
ple, improve both cognitive and noncognitive dren’s health vary greatly among the states.
outcomes for children and have a benefit-cost Eligibility for CHIP, for example, differs
ratio larger than one. And for every $1.00 from one state to the next. For example,
invested in visiting nurse programs, which cost Alabama and Oklahoma have a similar
$7,300 per child, society saves $5.70 in the percentage of low-income children. But
long run for high-risk populations and $1.26 Alabama caps CHIP eligibility for young
for lower-risk populations.24 children at 300 percent of the federal pov-
erty level and Oklahoma caps eligibility at
185 percent of the federal poverty level.27
Indirect investments in
Indirect investments in children’s health
children’s health and family
and family wellbeing also differ from state
wellbeing differ from state to state. As Berger and Font explain in this
issue, the federal Earned Income Tax Credit
to state.
is one of the most important antipoverty pro-
grams, and it is associated with better health
among children. Twenty-five states, the
Despite the social and economic benefits District of Columbia, and two localities have
of broad-based preventive programs, the chosen to supplement the federal program
absence of any affirmative legal obligation to by offering a similar tax credit, providing
promote children’s health means that these additional support for family incomes.28 But
programs are vulnerable to shifting budget- this means that 25 states don’t offer a state
ary and political priorities. Moreover, the tax credit to low-income families. Moreover,
government often declines to respond to the existing state programs vary in generos-
pressing family needs, for example, by failing ity. Maryland’s Earned Income Tax Credit,
to ensure paid parental leave or to provide for example, provides up to 50 percent of
adequate subsidies for quality child care. As the federal credit and is fully refundable;
Rossin-Slater writes in this issue, the United thus, families receive a payment from the
States is one of the only countries that does state government for the amount of the
not guarantee new mothers some form of credit rather than simply an offset against
paid leave.25 The federal Family and Medical taxes owed (a nonrefundable tax credit).29 By
Leave Act requires employers to allow work- contrast, Ohio’s Earned Income Tax Credit
ers to take up to 12 weeks to care for a new is only 5 percent of the federal credit and is
child or an ailing family member, but not all nonrefundable.30
employers and employees are covered. More
important, the leave is unpaid, which does The federalist system certainly has advan-
not help parents who must work to support tages. It allows states to experiment with
the family.26 Similarly, government subsidies different approaches to child health and
for child care do not come close to satisfying wellbeing, and states can thus learn from
the demand. one another. But the federalist system also
VOL. 25 / NO. 1 / SPRING 2015 183
Clare Huntington and Elizabeth Scott
allows states to offer greatly varying levels strengthen the family and keep the child
of support for families, and services depend out of foster care. But when officials deter-
on a state’s political values and financial mine that the child cannot remain safely in
resources, underscoring the point that the home or that preventive services have
government investment in children’s health not been effective, they follow the second
is optional. approach: the child is placed in foster care
with a relative, an unrelated family, or an
The second major policy implication of the institution. The state typically has a duty
libertarian framework is that it encourages to reunite the children with their families,
the government to take a reactive, rather but when this is not possible, it can move to
than preventive, approach to children’s terminate parental rights and place the child
health and wellbeing. Because of the impor- with an adoptive family.
tance of family autonomy, the government
seldom intervenes in family life unless Both of these approaches to child wellbe-
parents have seriously defaulted on their ing follow a crisis-intervention model. The
responsibility to care for their children. Of preventive services—counseling, substance
course, sometimes the government preempts abuse treatment, etc.—are provided only
parental authority, for example, through after the family has come to the attention of
regulations mandating the use of car seats the authorities and the child is deemed to be
or requiring certain vaccinations, but even at risk. Too often at this point, an adversarial
these preventive measures can be controver- relationship develops between the state and
sial, at least initially. Moreover, they do not the family. Parents who face the threat of
target particular families and are justified on losing their children are understandably
public health grounds. suspicious of state involvement. And the state
is wary of the parents, because by the time
By contrast, when parents default on their intervention occurs, the functioning of at
responsibilities, the state intervenes directly, least one of the parents is likely at a nadir. As
and often intrusively, providing an array of Berger and Font show, preventive services
services to the family and child. As Berger offered at this stage are largely ineffective.
and Font write, the child welfare system
profoundly affects the lives of many fami- Most cases in the child welfare system
lies, particularly low-income and minority involve parental neglect rather than abuse,
families. The child welfare system uses two among families struggling with substance
approaches to pursue its goals of protecting abuse, inadequate housing, or inappropriate
children believed to be abused or neglected child-care arrangements.32 These problems
by their families and strengthening fami- may indeed threaten a child’s wellbeing, but
lies where children are at imminent risk for the child welfare system, with its late-stage
abuse and neglect.31 First, if child welfare intervention and extreme sanction of remov-
officials believe a child can remain safely at ing children and placing them in foster care,
home with additional support, the family often fails to adequately address the underly-
receives preventive services, such as family ing issues, which are grounded in poverty.
or individual counseling, substance-abuse
treatment, domestic-violence intervention, Although the crisis-intervention approach
or parenting classes. These services aim to stems partly from the law’s respect for family
184 THE FUTURE OF CHILDREN
Children’s Health in a Legal Framework
autonomy, in practice it offers little protec- Under the federalist system, states are free
tion for parents who become involved in the to adopt widely varying levels of support for
child welfare system. This fact raises serious children’s health and wellbeing. And libertar-
questions about socioeconomic discrimina- ian values discourage a preventive approach
tion. Children in the system overwhelm- to family welfare, despite evidence that
ingly come from low-income families.33 The preventive programs can enhance children’s
fact that parental rights are constitutionally health. Instead, the state often offers support
protected ensures that the state must meet only after a family hits a crisis. To be sure,
a high standard of harm before it removes a there is much to like about a regime that
child, but parental rights do not give parents values parental autonomy and encourages
a right to any state assistance before they
pluralism. But the libertarian legal frame-
face the risk of losing a child.
work together with our federalist system
can hinder efforts to provide comprehensive
Even outside the child welfare system, when
health services for children and families.
the government offers to help low-income
parents improve their children’s health, Adolescent Health and
the assistance often comes at a cost to Parental Authority
personal autonomy and privacy. New York,
Adolescents are more capable than are
for example, offers the Medicaid-funded
young children of making health-care deci-
Prenatal Care Assistance Program (PCAP),
sions, and once they reach the age of major-
which seeks to decrease infant mortality and
ity at 18, they become legal adults with the
increase birth weight among babies born
authority and presumed competence to do
to low-income mothers. But to participate
so. Until then, as we have seen, parental
in PCAP, low-income women must divulge
consent is required, and parents continue to
extensive personal information that women
bear responsibility for their children’s health
with private insurance would not be required
care. But there are exceptions to this gen-
to tell their doctors. Women are asked ques-
eral rule, and in some treatment contexts,
tions about their immigration status, sources
consent by adolescents to medical treatment
of income (including questions about crimi-
is legally valid with limited or no paren-
nal activity and working off the books), prior
tal involvement. Further, an adolescent’s
involvement with the child welfare system,
refusal of treatment is occasionally given
and many questions about their eating habits
some weight; for example, parents’ authority
and psychosocial history. Although the PCAP
to admit their children to inpatient psychi-
is well-intentioned, the state’s stance toward
the participants appears to be distrustful atric facilities is subject to restrictions. In
rather than collaborative.34 this section, we discuss four areas in which
the law treats adolescents differently from
In sum, the libertarian legal framework, with younger children: the mature minor doc-
its emphasis on parental rights and respon- trine; public health laws sometimes called
sibilities, deeply influences programs and minors’ consent statutes; minor’s refusal of
policies affecting children’s health. Because treatment; and the right of access to repro-
the government has no obligation to promote ductive health services, including abortion
children’s welfare, every program is optional and contraception. In each setting, for dif-
and vulnerable to the vagaries of politics. ferent reasons, parental involvement in their
VOL. 25 / NO. 1 / SPRING 2015 185
Clare Huntington and Elizabeth Scott
children’s health-care decisions is deemed necessary: 1) The treatment must be under-
unnecessary or is restricted. Sometimes, taken for the benefit of the minor; 2) the
mature minors’ consent is deemed legally minor must be mature enough to under-
adequate to shield physicians from liability. stand the procedure and its consequences;
Occasionally, parental authority is limited and 3) the procedure cannot be of a serious
because the parent and child may have a nature (except for emergency treatment).36
conflict of interest (as when parents seek In the case of a serious procedure, parents
to admit children to psychiatric facili- should be consulted or a guardian appointed.
ties); in other situations, a parental consent
requirement might deter adolescents from The mature minor doctrine indirectly
seeking needed services, and public health acknowledges that adolescents are competent
concerns favor letting them get treatment to make medical decisions, but it should not
without involving parents (minors’ consent be understood to confer “rights” on teenag-
laws). Finally, abortion decisions represent a ers on this basis. The doctrine’s purpose is
unique category of health-care decisions that to protect physicians from liability if parents
involve key constitutional values. later bring suit against them on the grounds
that informed consent was not obtained
The Mature Minor Doctrine
before the teen was treated. The mature
Under the long-recognized mature minor minor doctrine is also not a general rule
rule, parental consent to medical treatment authorizing adolescents’ consent, although
is sometimes deemed unnecessary for ado- a recent study found that physicians believe
lescents mature enough to make their own this is the case.37 Instead, the adolescent’s
decisions.35 Courts developed the mature consent constitutes a valid substitute for the
minor doctrine to protect physicians from absent parent only under limited conditions.
legal liability when they treat minors under
circumstances in which obtaining parental Minor Consent Statutes
consent is either impossible or difficult and Many states have enacted minor consent
waiting to provide treatment would be risky. statutes that allow minors to obtain particu-
A physician who fails to obtain informed lar health-care services without parental
consent before providing treatment can incur consent or involvement.38 These services
legal liability for committing a battery on the typically include outpatient treatment for
patient. Because minors are presumed to be substance abuse; outpatient mental health
incompetent to make informed treatment therapy; treatment for sexually transmitted
decisions, treating physicians could incur tort diseases; and contraceptive, pregnancy, and
liability for providing treatment without valid family planning services. Although such stat-
parental consent. Mature minor doctrine utes do not explicitly target adolescents, the
recognizes that the presumption of incom- nature of the designated treatments is such
petence as applied to older minors is based that application to younger children would
more on administrative convenience than on be unusual. Thus, presumably, most patients
scientific reality. who obtain treatment under such statutes are
likely competent to consent to treatment.
When is the mature minor doctrine applied?
Courts have focused on the following factors The primary purpose of these statutes is not
in concluding that parental consent is not to protect physicians from liability (although
186 THE FUTURE OF CHILDREN