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How Should the MMR be Broadened?

A range of possibilities exists for accomplishing the goal of providing greater health care access to homeless and at-risk youth in Massachusetts. Some of the avenues JRI may explore are: a completely new process-based statutory enactment; an expansion of the current consent statute by adding a broad new clause to cover minors' rights to consent to general health care or amending current clauses to acknowledge specific constraints; and active educational measures.

Statutory Enactment

In keeping with the current system of the Massachusetts judiciary's right to adjudicate a minor's request for an abortion, a similar process could encompass general health care requests, in which a judge would authorize a minor to be declared a ``mature minor'' for the purposes of consenting to general health care on a case by case basis. Within this scheme, a minor would be declared mature enough to consent to all of her own health care treatment, whether it be medical, dental, mental health, or surgical procedures (including or not including abortive procedures, depending upon how the scheme is structured) for the period of time she is living separate from her parents, but has not yet reached the age of majority. Legislators may support this option since it guarantees that most youth will not easily choose this process unless necessary. Therefore, it would allow most parents to retain control of their child's/children's health care decisions, while allowing for individual exceptions. However, this option could burden the court with extensive litigation, and is closely tied to minors' difficulties in accessing legal counsel. Legislator's fear of increased litigation, inherent costs, and developing a workable ``maturity'' standard must be kept in mind when considering expanding the process for affording youth the title of ``mature.'' In addition, future LO's should be cognizant of concerns surrounding the difficulty that at-risk youth would face if the process were expanded, as well as the inherent challenge in passing this type of in-depth statute.

Statutory Expansion

It is more likely that the legislature would embrace a statutory expansion of the MMR. It would be in the best interest of Massachusetts youth to amend the MMR to encompass general health care that could be used as preventative, and not only available for catastrophic illness and injury.110 Massachusetts could completely change their consent statute by employing a bright line age test, such as that found in Alabama.111 This would have the effect of ending the inconsistencies found within the statute, while acknowledging a minor's right to privacy and control of their own health care.

However, if legislators do not favor such a broad expansion, then an alternative would be to expand the current consent statute provisions so as to fix some of the specific constraints. For example, Massachusetts does not specifically allow minors to consent to either in-patient or outpatient mental health care. Under current provisions, mental health could arguably fall under ``general medical care'' - that is, with an expansive interpretation of, and reliance on, current regulations. However, as this is a risky and imprecise methodology of providing mental health care for those who require care, MMR should be broadened to specifically encompass and provide mental health benefits for homeless youth who have not yet reached the age of majority. This may be accomplished by adding the term ``mental health care'' to the statute, such as the general health care statutes in Alabama112 and Minnesota.113 Not only must the MMR specify the type of care, but also the age at which such care is available to minors.

In addition, Mass. Gen. Laws ch. 112, 12F (2002) provides that ``Any minor may give consent to his medical or dental care at the time such care is sought if ... (v) he is living separate and apart from his parent or legal guardian, and is managing his own financial affairs.'' This language contains ambiguity, as well as restriction. This text can be clarified so that homeless and at-risk youth are able to receive greater health care access.114 For example, removing the term ``and is managing his own financial affairs'' would leave the statute less restrictive. It would also remove the ambiguity of the procedures required to address this language, if any in fact exist, by which a health care provider must determine whether or not services may be provided to the minor. At the same time, removal of these words would allow a service provider to administer health care to a homeless or at-risk minor, so long as the minor lives apart from her parents. Given that the terminology ``he is living separate and apart from his parent or legal guardian'' would remain intact, all minors would not be reached by this change, alleviating concerns that parental rights with respect to health care decisions may be thwarted. This phrasing option, similar to Minnesota115 and California,116 does not define a time period for ``living apart.'' It may still leave health care providers in a position of having to ascertain the veracity of a minor's claim of living apart from her parent(s) or guardian. However, the vagueness of this proposed term expansion may actually benefit homeless and at-risk minors' ability to obtain services by creating ``wiggle room'' within the statute by which health care providers can utilize discretion to administer services to this population.

Implicit in our recommendation to broaden the MMR in Massachusetts is precise language that allows for clear and consistent application. If being a homeless minor were no longer considered a status crime, Massachusetts could take direction from Arizona, which specifically defines and provides for homeless youth. To provide for the best interests of Massachusetts youth, it would be prudent for the legislature to precisely define homeless youth so that providers could be clear on whom they may treat.117 However, as homelessness is still considered a status crime, legislators could look to Alabama and other states that have implimented a bright line age requirement for health care consent. Legislators could also look to Alabama as a model for its statutory inclusion of high school graduates among those that automatically obtain the right to consent to their health care.

Finally, the term ``medical,'' in Mass. Gen. Laws ch. 112, 12F (2002), is not defined as to which type of services are and are not covered. Specifically, it is unclear if all non-abortive surgeries are included as the statute is presently written.118 However, if definition is sought, then the benefit of ambiguity is lost. On the other hand, defining the term ``medical'' as it pertains to this statute may serve as a prophylactic to litigation during a minor's illness - litigation which may serve to delay treatment.

Active Educational Measures

MMR in Massachusetts should be broadened both in scope as well as in application. The statute(s) are only as good as they are applied. Therefore, irrespective of any substantive changes in the current provisions, education of youth workers and medical professionals is paramount to the health of Massachusetts youth. Currently many health care providers and homeless youth may not know about the consent statutes and mental health regulation. They may be unaware of care for which they are currently eligible as minors.119 Additionally, those youth who are aware of their access to medical care often have to skirt the law or blatently lie to medical professionals.120

If the MMR is expanded, then providers are likely to be a homeless youth's first source of knowledge and first advocate. Day programs for at-risk and homeless youth are an integral site at which providers can educate homeless youth on their right to access medical care. In addition to counseling youth who utilize these programs, written material, which may be picked up by youth, outlining their right to consent would be an effective means of reaching the target population. Effectively and efficiently disseminating current statutory information, as well as new statutory amendments, is crucial in educating providers and youth so that the statute benefits JRI's target population.



Footnotes

...110
See Interview with David Clark, supra n. 76.
...111
Ala. Code 22-8-4 (2002) (general consent to health care permitted at age 14).
... Alabama112
Ala. Code 22-8-4 (2002) provides that a minor ``...may give effective consent to any legally authorized medical, dental, health or mental health services for himself or herself, and the consent of no other person shall be necessary'' (emphasis added).
...113
Minn. Stat. 144.341 (2002) provides that a minor "may give effective consent to personal medical, dental, mental and other health services, and the consent of no other person is required'' (emphasis added).
...114
See Interview with David Clark, supra n. 76.
... Minnesota115
Minn. Stat. 144.341 (2002) which allows general health care ``Notwithstanding any other provision of law, any minor who is living separate and apart from parents or legal guardian, whether with or without the consent of a parent or guardian and regardless of the duration of such separate residence, and who is managing personal financial affairs, regardless of the source or extent of the minor's income, may give effective consent to personal medical, dental, mental and other health services, and the consent of no other person is required'' (emphasis added).
...116
Cal. Fam. Code 6922 (2002) provides that ``A minor may consent to the minor's medical care or dental care if all of the following conditions are satisfied: (1) The minor is 15 years of age or older ... (2) The minor is living separate and apart from the minor's parents or guardian, whether with or without the consent of a parent or guardian and regardless of the duration of the separate residence'' (emphasis added).
...117
Ariz. Rev. Stat. Ann. 44-132 (West 2002).
...118
It is clear that Massachusetts, in enacting Mass. Gen. Laws ch. 112, 12S (2002), wished to address the issue of abortion separately as it pertains to the consent of minors.
...119
See Interview with Genny Price, supra n. 75.
...120
See Interview with David Clark, supra, n. 79.

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