Michigan does not have a singular broad statute, or a statutory scheme, by which a minor may consent to her own general health care. However, statutes exist that authorize minors to consent to specific health care services, such as outpatient mental health care;308 substance abuse;309 communicable diseases;310 , contraceptive services;311 and prenatal and pregnancy related care.312 The state passed these statutes in 1978, except for the mental health statutes enacted earlier in 1975, and the contraceptive care statute.313 Since 1975, there have been minimal amendments, which have notes indicating the changes were not substantively significant,314 and minimal case law implicating the authority of the statutes.315 With no substantive statutory amendments and only one case discussing the substance abuse statute, this might indicate that the statutory scheme is working well for Michigan.
However, it is important to note that the scheme does not provide minors with the most empowering model. Not only are these Michigan consent statutes narrowly designed to authorize the minor to consent simply for specific health care needs, but most of the statutes in this category contain provisions permitting health care providers to inform the parent or guardian of services received by the minor, based on provider discretion.
Specifically, the mental health statute states that ``a minor 14 years of age or older may request and receive mental health services ... on an outpatient basis ... without the consent or knowledge of the minor's parent.''316 However, the parent or guardian could be informed of the services received by the minor if the mental health professional determined ``a compelling need for disclosure based on a substantial probability of harm to the minor or to another individual and if the minor is notified of the intent to inform''317 (emphasis added). Since notification based on probability of harm to self or another person is customary with respect to disclosure standards in the mental health field,318 this statute appears to grant minors similar confidentiality rights as are typically provided to adults with respect to mental health care needs. Requiring prior notification to the minor of intent to inform parents may demonstrate a general respect toward minors. It may also be a function of the general adherence to, and respect for the need for, strict confidentiality standards with regard to mental health matters.319
Unlike the mental health statute granting minors at least 14 years old the right to consent to services, a minor of any age may consent to treatment for substance abuse,320 communicable diseases,321 and pregnancy-related care.322 This age inconsistency may reflect the reality of urgency and/or importance that individuals and society face, from a health and policy perspective, when dealing with these sensitive issues.323 However, the sensitive nature of substance abuse, communicable diseases, and pregnancy-related care is not as restricted as mental health care needs are with respect to confidentiality and minors' privacy rights.
Unlike the mental health statute, the provider is allowed to inform the parent or guardian without any statutory restrictions of compelling need or notification of intent to inform parents, but rather based solely on the provider's own judgment: ``For medical reasons, [the health care provider] may, but is not obligated to inform the spouse, parent, guardian, or person in loco parentis as to the health care given or needed.''324 Although the statute points to ``medical reasons'' as the basis for informing others, in reality this allows the health care provider a large amount of discretion in deciding when to inform the parent. Indeed, even if the child requests confidentiality, the provider has the legal standing to inform the parent, despite the wishes of the minor. The statute states: ``the information may be given to or withheld from these persons without consent of the minor and notwithstanding the express refusal of the minor to the providing of the information''325 (emphasis added). In addition, with respect to pregnancy or prenatal care, the ``putative father of the child'' is added to the list of those potentially informed.326 This does not indicate that providers will actually inform the parent (or putative father) against the will of the minor. However, with privacy rights in doubt, due to providers' legal permission to inform, this may deter minors from seeking needed treatment, even though they statutorily can consent to it.
In fact, the one case that implicates the substance abuse statute proves this point: in Walling v. Allstate Ins. Co.,327 a hospital did not treat an intoxicated minor who came to the emergency room because she would not disclose her parent's phone number to the nurse.328 The claim against the hospital alleged a duty to examine and treat the minor as matter of law,329 and in part implicated the substance abuse statute, Michigan Compiled Laws § 333.6121. In interpreting the substance abuse statute, the court stated: ``The purpose of the statute is to permit a hospital to provide medical treatment or care for substance abuse to a consenting minor without the prior consent of the minor's parents.330 The statute does not require a hospital to provide treatment or care for substance abuse'' (emphasis added).331 The court reasoned that ``[t]he record clearly establishes that, although decedent walked into defendant's emergency room with some difficulty, she did not require medical assistance while there. Decedent was conscious and coherent.''332 Since the minor's condition did not constitute an emergency, summary judgment in favor of the defendant hospital was affirmed. ``Moreover, the trial court correctly ruled that defendant did not owe a statutory duty under MCL 333.6121, MSA 14.15(6121) to treat decedent.''333
This case shows that Michigan courts support the discretionary nature of the statute which gives providers the power to inform a parent, even against the wishes of the minor. In this case, the minor chose to leave the hospital rather than disclose her parent's phone number.334 This highlights the disempowered position of minors in Michigan's statutory scheme, supported by court interpretation, even where a sensitive issue like substance abuse is involved.
In summary, when focused on an analysis of constitutional privacy rights of minors, the current Michigan minor health and mental health care consent statutes, given their discretionary nature with respect to informing parents, guardians, and putative fathers by the health care provider, may be less supportive, in toto, of minors' rights than those currently in place in Massachusetts. Therefore, Michigan may not offer the best model for further expansion of Massachusetts minors' health and mental health consent statutes.