Adolescent Consent to Medical Treatment

Emma Cave

in Childhood Studies

ISBN: 9780199791231
Published online April 2013 | | DOI:
Adolescent Consent to Medical Treatment

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Subject to certain exceptions, (e.g., emergency treatment), clinicians need a valid consent before they can treat a patient. This operates both to protect clinicians from liability and to protect the autonomy interests of patients. Consent may be express or implied. More serious procedures generally require express consent, which is usually documented on a consent form. Special arrangements are put in place when patients are unable to provide a valid consent due to a lack of autonomy. This might occur when patients are children or young persons (collectively referred to as “minors” in this article). The starting position is that minors cannot provide a valid consent, but in most jurisdictions there are exceptions to this rule. Some rules are status-based (based on age, marital status, etc.); some depend on the treatment sought (e.g., there may be special rules regarding life-sustaining treatment); and others are functional (based on maturity, understanding, experience, etc.). In relation to the latter, the law might limit the minor’s authority to make medical treatment decisions on grounds other than his or her lack of competence. Minors have a special legal status based on their potential vulnerability, which flows from a lack of life experience. Laws balance their welfare interests and their interests in autonomous decision making. In some cases, minors can agree to some types of treatment even if they lack de facto competence. For example, in some jurisdictions there are provisions enabling some minors to consent to counseling for a mental health problem, treatment for a drug dependency, or sexual advice without parental consent or notification. Conversely, the law might prohibit certain treatments, such as female genital mutilation, even if a competent minor or parent is willing to consent to them, or it might require court authorization for certain treatments (sterilization of a minor, for example). Where minors lack competence or are otherwise deemed unable to provide a legal consent, an alternative source of consent must be found to justify what would, in the absence of a lawful defense such as necessity, constitute a breach of tort or contract law. The views of minors remain relevant to decisions made about them. In some cases, their assent (agreement) to treatment is required, in addition to the legal consent provided by someone with parental authority. This bibliography focuses on when, how, and why minors can provide the requisite consent to medical treatment. Beginning with sections on Informed Consent and Children’s Rights, it moves on to consider different definitions of competence and the difficult case of treatment refusal. Finally, it contrasts approaches in Europe, Australia, New Zealand, Canada, and the United States. The review does not incorporate the law on confidentiality or specialist legal issues relating to biomedical research, human tissue donation, or treatment for mental health disorders, each of which have an extensive literature of their own. The research for this bibliography was undertaken as part of a research project called Medical Practitioners, Adolescents, and Informed Consent, sponsored by the Nuffield Foundation in 2011–2012. The Nuffield Foundation is a charitable trust with the aim of advancing social well-being. It funds research and provides expertise, predominantly in social policy and education. It has supported this project, but the views expressed here are those of the author and not necessarily those of the foundation. More information is available online.

Article.  8713 words. 

Subjects: Development Studies

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