Introduction

One of the areas in which homeless minors in Massachusetts may also benefit by statutory change is in the topic of minors' health care needs. While American parents and guardians have long held substantive constitutional rights to make decisions concerning their children's health care and welfare, American children, including Massachusetts children, traditionally had not been empowered with legal autonomy rights to consent to their physical and mental well-being.⁷² This is because American society has held steadfast to, and legislatures and courts have maintained and perpetuated, a presumption that minors lack the requisite maturity and wisdom to correctly determine their medical needs. As a result, minors have been deemed incapable of making many medical decisions for themselves.⁷³

The term ``capacity,'' a widespread legal concept, is generally utilized in a shielding posture when referring to minors. However, for homeless youth, this shield can act as a particularly dangerous sword. Minors on the streets who need medical items such as antibiotics for colds, inhalers for asthma, and stitches for cuts, may be unable to legally consent to and receive such services without parental consent in the state of Massachusetts due to the construction of Massachusetts' health care statute concerning minors.<sup>74</sup> The realistic result of the parental consent rule, then, may be that homeless and at-risk youth in need of medical attention are left untreated, which leaves them suffering.<sup>75</sup> Service providers attendant to homeless youth are often placed in a moral position of having to ``skirt the laws'' by not asking a homeless minor's age in order to properly address their health care needs.⁷⁶ This state of affairs commands legislative attention.

Footnotes

...⁷²

See Angela R. Holder, Children and Adolescents: Their Right To Decide About Their Own Health Care, in Children and Health Care: Moral and Social Issues, 161 (Loretta M. Kopelman & John C. Moskop eds. 1989); Eve W. Paul, Legal Rights of Minors to Sex-Related Medical Care, 6 Colum. Hum. Rts. L. Rev. 357, 359-60 (1974); and Tania E. Wright, A Minor's Right to Consent to Medical Care, 25 How. L.J. 525, 525-26 (1982). For a comprehensive discussion of the rivaling interests of parents, children, and the state implicated in medical decision-making for children, see Elizabeth J. Sher, Note, Choosing for Children: Adjudicating Medical Care Disputes Between Parents and the State, 58 N.Y.U. L. Rev. 157, 169 (1983).

...⁷³

Id.

...⁷⁴

Mass. Ann. Laws ch. 112, § 12F (2002).

...⁷⁵

See infra Appendix A: Interview with Genny Price, Clinical Dir., Bridge Over Troubled Water (Feb. 20, 2002). According to Ms. Price, the inability to consent to health care ``can be a barrier for kids that are on the run sometimes in getting treatment.''

...⁷⁶

See infra Appendix A: Interview with David Clark, Dir., Youth On Fire (Feb. 21, 2002).