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Health Service Treatment Currently Allowed Without Parental Consent Under the MMR

The MMR in Massachusetts allows minors to obtain limited health care without parental consent. The situations in which minors may consent to their own medical or dental health care without parental consent include if:

In addition, the abortion consent statute provides that:

Furthermore, Massachusetts statutes allow for a minor to specifically obtain alcohol abuse treatment without age restriction;91 drug abuse treatment if she is 12 years of age and two or more physicians make a drug dependency diagnosis;92 prenatal and contraceptive care without age restriction,93 and treatment for venereal diseases without age restriction.94 Although Massachusetts does not specifically allow minors to consent to either inpatient or outpatient mental health care by statute, in tandem with 104 Code of Mass. Regs. 25.04 (2002) of the Department of Mental Health, ``mature minors'' are viewed as being able to consent to such services. Thus, Massachusetts, by and large, statutorily provides minors with important health care services.

While the above circumstances, although limited in scope, appear fairly self-explanatory, it is important to consider what is missing and why it is missing, as well as analyze how this currently affects JRI's target population. For example, the most obvious clause that affects homeless and at-risk youth is clause (v), which deals with the requirements of a minor living separate and apart from her parent and managing personal financial affairs. If JRI is concerned about the homeless youth population, this language appears to remedy the situation. Although legislative intent is unknown, we could assume that the issue of homeless youth acted as the potential catalyst in writing the statute with these requirements. Since homeless youth live separately from their parents and manage their personal finances, this statute speaks directly to the homeless youth population that this project seeks to help without possessing language that directly identifies them. If health care providers knew about this clause, they might feel able provide services to minors who fit these requirements without needing parental consent. At the same time, if homeless youth learned about this clause, then they, too, might feel empowered to seek services, realizing that they would not need parental consent.

However, since being a homeless youth is currently a status crime in Massachusetts,95 this clause may conflict with a service provider's legal responsibility as a mandated reporter. For example, if a homeless youth identified herself as homeless in order to receive and consent to her own heatlh care, the provider would be legally required to report that youth to DSS. Therefore, a homeless youth would find herself in a awkward situation whereby she could legally consent to her care, but then be reported for being homeless.

On the other hand, the ambiguous language may work to the minor's advantage. By not clearly defining clause (v) in terms of homeless youth,96 the legislators left an opening in which a homeless or at-risk youth who is no longer living with her parent and is managing her own finances could consent to her own care. In this way, she would not necessarily have to self-identify as a homeless youth, since there could be other possibilities (such as living with a friend). Without identifying herself as homeless, she would still be legally permitted to consent under clause (v), while also not triggering the provider's duty to report. With such indeterminate requirements, the provider and minor could become creative in defining the circumstances and therefore a fairly liberal consent policy could exist in practice that is legally sanctioned as well. Since this language has not yet faced any legal challenges setting precedent, it is open to provider interpretation. Therefore, this clause would offer to JRI an important tool in assisting their target population in realizing their right to legally consent to health care, especially if publicized to health care providers and youth.

The other important area of analysis of this statute deals with the theme of inconsistency and public policy. Clause (vi) allows a minor to consent to health care for specific diseases ``defined as dangerous to the public health''97 but a minor may only consent to the diagnosis and treatment of those specific diseases. This leads to questioning the legitimacy of the statutory purpose. If a minor may consent to health care for ``dangerous'' diseases, then this suggests that the law recognizes any minor's capacity and judgment for self-consent, especially surrounding issues of extreme gravity and significance. Why, then, is a minor generally not allowed to consent to such matters as preventive care, mental health services, asthma, or ear infection treatment which fail to fall under the sanctioned clauses? Indeed, under this statute, if a minor presents herself to a healthcare provider with an STD concern, and at the same time has an unrelated cough, she would be barred from receiving any treatment for that cough, but could consent to the STD treatment. While this may seem illogical, it brings us back to the concept of children as property, and the need for parents to maintain control over their children, at least in some aspects. A general consent statute may also challenge the image that parents and legislators have that their own children would not need or want to get health care without parental consent. In addition, the concept of allowing minors the right to consent to all care may not sit well with legislators who may fear parental backlash in the voting booths.

While it is important to analyze the statute as it currently appears, it is also significant to look at the legislative history of the statute.



Footnotes

...89
Id.
...90
Mass. Gen. Laws ch. 112, 12S (2002).
...91
Mass. Gen. Laws ch. 111B, 7, 10 (2002).
...92
Mass. Gen. Laws ch. 112, 12E (2002).
...93
See Mass. Gen. Laws ch. 111, 24E. (2002), mandating the Department of Public Health to ``establish within its health promotion division a program for comprehensive family planning services for all persons without regard to religion, race, color, national origin, creed, handicap, sex, number of pregnancies, marital status, age, or contraceptive preference, who do not receive medical assistance under chapter one hundred and eighteen E,'' which states, in pertinent part, that ``For the purposes of this section, the term ``comprehensive family planning services'' shall mean those medical, educational, and social services that assist individuals of childbearing age, including sexually active minors.''
...94
Mass. Gen. Laws ch. 111, 117 (2002).
...95
Interview with Genny Price, supra n. 75.
...96
See State Research Section for Arizona as an example of specifically defining homeless minor within the statute. While having a clear definition is preferable, in Massachusetts it might provide fewer options where youth homelessness is a status crime.
...97
Mass. Gen. Laws ch. 112, 12f (2002).

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