Next: Questions Presented
Up: Expanded Health Care Consent
In examining expanded health care statutes for minors, the amorphous ``mature minor'' doctrine has been discussed by previous Law Offices. However, the mature minor doctrine, long an instrument in American law for allowing minors to consent to medical treatment, actually comes into play in the absence of a statutory scheme for the provision of health care services to minors. The term ``mature minor'' is not used in Massachusetts statutory law,77 and generally has no formal definition that is consistently applied.78 However, history reveals the development of the mature minor doctrine: at common law, a minor was presumed to acquire the capacity to consent when she had the ability of the average person to understand and weigh the risks and benefits of a proposed course of action.79 Early exemptions from this common law rule emerged in order to address emergency medical treatment needs of minors,80 as well as liability concerns for medical care providers for providing services to minors without parental consent (which constituted the tort of battery).81 Over time, modern exceptions to the common law rule, collectively termed the ``mature minor doctrine,'' became codified in minor treatment statutes.82 These statutes typically were designed to specify a particular age "at which a minor may be considered completely independent for health care purposes and treatment may be given as if he or she were an adult," as well as to provide other restrictions deemed warranted by state legislatures (e.g., notification of parents).83 Most of the statutes that were enacted were not designed to hinge on the maturity of the minor, or to otherwise expand any right of a minor except that specifically addressed within the statute,84 but rather, the focus was placed on treating and preventing specific diseases or conditions, or to allow for certain treatments.85
For example, in the 1960s many states enacted statutes that allowed minors access to communicable disease treatment in response to a mounting incidence of sexually transmitted diseases among minors.86 Balancing society's interest in halting the spread of sexually transmitted diseases with the rights of parents, and fearing that parental notification of, and consent to, treatment would encroach upon minors seeking out these services, several states enacted statutes by which minors could give their own consent to such treatment.87 Considering this background, we now turn to the LO #2 project goals with respect to analysis of the current MMR in Massachusetts.
- Nevertheless, for purposes of consistency with past Law Office projects, and uniformity within this discussion, this paper utilizes the same ``mature minor rule'' phraseology when referring to statutes that focus on the rights of minors to consent to their own health care. However, when working with this issue in the future, it will be important to apprehend the semantics of the ``mature minor'' common law doctrine, and to present the goals of JRI to the legislature utilizing the proper terminiology. That is to say, when discussing expansion of the Massachusetts statutory scheme for minors' health care, instead of phrasing the issue in terms of expanding the ``mature minor rule,'' better phrasing may be ``minor consent statutes'' or ``minor's health care consent statutes.''
- Walter Wadlington, Minors and Health Care: The Age of Consent, 11 Osgood Hall L.J. 115, (1973), however, elucidated upon cases in which the ``mature minor'' doctrine had been applied, and found it to have the following commonalities: (1) treatment was undertaken for the benefit of the minor, as opposed to a third party; (2) the minor was near the age of majority, or at least 15 years of age, and was deemed to have sufficient mental capacity to fully understand the nature and importance of the proposed medical procedures; and (3) the medical procedures could be described by a court as not ``major'' or ``serious.''
- To reflect minors' progressing reasoning abilities through various developmental stages, capacity is often determined by a so-called ``Rule of Sevens.'' Cardwell v. Bechtol, 724 S.W.2d 739, 745 (Tenn. 1987). The Rule of Sevens provides that under the age of seven, a child has no capacity; between the ages of seven and fourteen, there exists a rebuttable presumption that the minor has no capacity; and between the ages of fourteen and twenty-one, there exists a rebuttable presumption that the individual has capacity.
- Lisa Anne Hawkins, Note, Living Will Statutes: A Minor Oversight, 78 Va. L. Rev. 1581, 1586 (1992) ("Early common law, recognizing that physicians' fear of liability might discourage prompt treatment, implied consent in emergency situations. This type of exception is `situational,' because its applicability turns on the type of treatment decision involved.").
- See e.g., Baird v. Attorney General, 371 Mass. 741, 753, 360 N.E.2d 288, 296 (1977) ("We have never held or implied on common law grounds that a physician may operate on a minor, where there is no emergency, without the consent of at least one parent. We have indicated that such an unauthorized operation constitutes an intentional tort.")
- See infra ``Mature Minor Rule'' chart.
- 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).
- See Jessica A. Penkower, Comment: The Potential Right of Chronically Ill Adolescents to Refuse Life-Saving Medical Treatment - Fatal Misuse of the Mature Minor Doctrine, 45 DePaul L. Rev. 1165, at 1178 (1996).
- Tania E. Wright, A Minor's Right to Consent to Medical Care, 25 How. L.J. 525, 531 (1982).
- Angela R. Holder, Legal Issues in Pediatrics and Adolescent Medicine, 129, 130 (2d ed. 1985).
Next: Questions Presented
Up: Expanded Health Care Consent
LCD Law Office #2