INTRODUCTION — The concepts of informed consent and confidentiality are complex when the patient is an adolescent. This is particularly true when the needs and wishes of the adolescent conflict with the opinions and preferences of the parents .
The laws governing consent and confidentiality in adolescent health care vary from country to country; within the United States, they vary from state to state. The specific provisions of consent laws and confidentiality laws also vary and are not identical to each other. The information in this topic focuses on consent in adolescent health care in the United States.
Clinicians who treat adolescents must be aware of the federal and state laws related to adolescent consent and confidentiality. The circumstances in which adolescents may consent for their own care and in which confidentiality is protected vary from state to state depending upon the adolescent's status as a minor or adult, the service involved, and the provider's level of concern regarding harm to the patient or others.
The basic laws governing consent for health care are state laws; clinicians who treat adolescents need to be aware of the laws in their state. Confidentiality provisions are found in both state and federal law. Clinicians who treat adolescents also must be aware of the guidelines governing federal and state funding sources for particular services, particularly when funding source guidelines contain specific requirements related to confidentiality. They should also be familiar with the consent and confidentiality policies of the facility in which they practice, and they must be aware of potential ways in which confidentiality can be compromised (eg, record keeping, billing statements, insurance claims).
After a review of important aspects of minor status and the definitions of consent, notification, and judicial bypass, this topic will discuss how minor status affects the ability to consent to medical services and the different types of medical services for which minors are able to give their own consent. Confidentiality, a closely related but separate concept, is discussed elsewhere. (See "Confidentiality in adolescent health care".)
MINOR STATUS — Whether an adolescent patient is able to provide consent for medical care and services often depends upon their status as a minor or adult. Various categories of minors – unemancipated, emancipated, medically emancipated, or mature minors – may be able to give their own consent depending upon the specific circumstances. The laws governing minor status vary from state to state . Information regarding the laws in individual states pertaining to emancipation is available through the Legal Information Institute at Cornell University Law School. Information about the laws governing minor status as it pertains to consent for health care is available through the Center for Adolescent Health & the Law (for purchase) and the Guttmacher Institute.
Minor — In most states of the United States, minor status is defined by age under 18 years; 18 years is the "age of majority," the age at which adolescents are legally considered to be adults .
Emancipated minor — Emancipation refers to the process by which minors can attain legal adulthood before reaching the age of majority. Most states have statutes or court cases that specify the circumstances under which a minor can be considered emancipated from their parents before the age of majority. This may or may not require obtaining a formal court declaration of emancipation. The most common means of attaining emancipation are marriage, military service, or living separately from parents and managing one's own financial affairs [4,5].
In most cases, legal emancipation enables the minor to establish a personal residence and enter into legally binding contracts. It relieves the emancipated minor's parents from legal liability for contracts entered into by the minor [4,6]. Emancipation also generally enables a minor to consent for medical care. Proof of emancipation is not generally required for an emancipated minor to give consent for medical treatment.
Medical emancipation — Medical emancipation is not a specific legal status. However, as a concept, and in practical terms, it is recognized to some degree in all states. If a minor is considered "medically emancipated," they would be allowed to consent for medical care, either generally for all care or for specific services as outlined below [7,8]. The medically emancipated minor maintains minority status in other domains (eg, they cannot enter into most legally binding contracts). Medically emancipated minors may be financially responsible for the medical care for which they give their own consent depending on state law. (See 'Consent for specific services' below.)
The following minors are often considered medically emancipated and allowed to consent for medical care generally based upon their status, but not every state has recognized all of these categories [4,9]:
●Minors who are married or were married at one time
●Minors who have a child (may consent for child, and sometimes for self)
●Minors who have reached a specific age (eg, 15 years)
●High school graduates
●Minors living away from home without parental permission/financial support
●Homeless minors and runaways
Mature minor — "Mature minor" is a category of minor status that is recognized in some states as an exception to the rules requiring parental consent for medical care [10,11]. The mature minor doctrine, which was originally created by courts and has been incorporated into statutes in a few states, allows mature minors to consent to routine, nonemergency care, especially when the risk of treatment is considered to be low [7,12].
Mature minor status varies by state but is typically defined by [11,13,14]:
●Being at least 14 years old; by the age of 14, most adolescents have cognitive skills and medical decision-making capacities similar to those of adults [4,15]. Individual states may require a different minimal age for mature minors in their statutes or court decisions.
●Ability to understand the risks and benefits of the proposed treatment (based on the clinician's judgment).
●Ability to provide the same level of informed consent as an adult (based on the clinician's judgment) and actually giving consent.
Several factors must be considered when a clinician is assessing an adolescent patient for maturity. These include chronologic age; the risk, necessity, and benefit of the proposed treatment; and the adolescent's emotional and cognitive capacity for understanding the treatment information .
Although the following factors may not be legally required to conclude that a minor is mature under the mature minor doctrine, when considering the adolescent's emotional and cognitive capacity for understanding the treatment information, it is important for the clinician to consider [17,18]:
●What kinds of decisions has the adolescent made in the past?
●Is the adolescent impulsive or developmentally delayed?
●Does the adolescent have significant emotional issues that might impair judgment?
●Does the adolescent have the ability to learn from past mistakes?
●How does the adolescent perceive the problem?
●Does the adolescent have the means (transportation, financial means, etc) or access to the means required to complete the management plan?
When a clinician makes the determination that a minor adolescent does not meet the criteria for "mature minor" status, the adolescent should be informed that their parents must be involved in the decision-making process  unless there is another clear legal basis on which the adolescent can provide their own consent. (See "Confidentiality in adolescent health care".)
Definition and implications — The clinician has a legal and an ethical duty to obtain informed consent when providing treatment [8,14]. Those who treat or perform procedures on a patient without consent may be liable for battery, negligence, or malpractice [4,8].
The provision of informed consent implies that the patient voluntarily agrees to medical care with a full understanding of their condition, the nature of the proposed treatment, the risks and benefits of the proposed treatment, available alternative treatments, and the risks of foregoing treatment [16,17,19,20].
Clinicians are often uncertain whether they can be held legally responsible if they provide care based on the consent of a minor. If a minor is authorized by law to provide consent, there is little likelihood that a clinician would be held liable based on a failure to obtain parental consent .
Relationship to confidentiality — Clinicians must be aware of the ways in which obtaining consent or providing parental notification, as required by federal or state law, federal or state funding sources, or an individual facility's policies, affect patient confidentiality in various circumstances. (See "Confidentiality in adolescent health care".)
Although it is important for clinicians to respect their adolescent patients' privacy, it is also important to encourage the adolescent to talk with their parents about issues that affect health [11,21-23]. Many adolescents willingly inform their parents regarding their health care decisions . Parental support can help to ensure that the adolescent's health care needs are met . However, mandatory parental consent or notification may have an adverse effect on some families, particularly those with a history of family violence (child abuse, sexual abuse, domestic violence) [22,25].
Who gives consent? — Consent for medical care of minors may be provided by a number of parties (including the minor themself), depending upon the status of the minor and the state laws regarding consent for specific services, as outlined below.
Minors — If the patient is an unemancipated minor, consent for medical treatment usually is provided by the parents or legal guardian. In varying circumstances, consent also may be provided by other family members, foster parents, probation officers, social workers, or family and juvenile courts.
Emancipated minors — Emancipated minors generally are able to provide their own consent for beneficial services. They may not provide their own consent for services that would benefit someone other than themselves (eg, blood or organ donation) .
Medically emancipated minors — Certain groups of minors are sometimes able to consent for care generally based on their status. They may be referred to as "medically emancipated" minors. (See 'Medical emancipation' above.)
Mature minors — In the states that permit mature minors to consent for medical care, several criteria should be met before treatment [8,26]:
●Age of minor as applies to that state's doctrine (usually at least 14 years).
●Minor is of sufficient maturity and intelligence to understand and appreciate the benefits and risks of the proposed treatment and to make a reasoned decision based on that knowledge.
●The treatment is for the minor's benefit and not someone else's (eg, blood or organ donation).
●The treatment is deemed necessary by a professional, and the treatment is not complex or high risk.
In states where policies regarding consent are ambiguous, the clinician's best assessment is usually upheld in court.
Minors as parents — Approximately 60 percent of states explicitly permit all minors to consent to medical care for their child [27,28], and even without a statute, a minor parent would almost certainly have a constitutional right to consent for medical care for their child. The remaining states have no relevant, explicit policy or case law. Interestingly, some states allow a minor to consent for their child's medical care but not for their own . For updated information, please see the Guttmacher Institute website.
Consent versus notification — Notification differs from consent in that a third party (eg, the parent or guardian of a mature or medically emancipated minor) is simply being told of the action rather than being asked to provide consent. However, an adolescent may view parental consent and parental notification as the same, since both can violate confidentiality . (See "Confidentiality in adolescent health care".)
CONSENT FOR SPECIFIC SERVICES — In addition to state laws determining minor status and the ability of the minor to consent for medical care and services based on their status, individual states have different laws regarding the specific health services to which minors may consent . It is critical that clinicians verify the laws regarding specific services in the state in which they practice.
Emergency care — In all states, a person in need of emergency medical treatment may be treated without consent if an attempt to secure such consent would delay treatment and risk the patient's life or health [6,8,16,30]. This applies to children of all ages, including adolescents. When emergency care is required, the patient should be treated and the parents or legal guardians notified as soon as possible.
In acute cases of rape, incest, and sexual abuse, the laws governing emergency care apply [7,31,32]. Clinicians may be required to notify parents or guardians except when there is suspicion that they may be one of the perpetrators .
Contraceptive services — In 1977, the United States Supreme Court ruled that the right to privacy protects a minor's access to nonprescriptive contraceptives. Although there has been no subsequent ruling to include prescriptive contraceptives, they are generally considered to be included [6,8]. Most states allow minors to consent to contraceptive services, although some restrict the ability to consent to minors of a certain age or status [9,33]. For updated information, please see the Guttmacher Institute website.
Federal statutes and regulations for the Title X Family Planning Program and the Medicaid program require that confidential family planning services be available to adolescents as well as adults when the services are paid for by Title X or Medicaid. This effectively precludes requiring parental consent for these services, as they would no longer be confidential. Two states (Texas and Utah) specifically prohibit the use of state funds for contraception without parental notification. A small number of other states allow for, but do not require, notification by the provider under certain circumstances (eg, if it is necessary to protect the health of the minor) [4,33]; such notification would not be permissible if the services are paid for by Title X or Medicaid.
Sexually transmitted infections — All states and the District of Columbia allow minors to consent for diagnosis and treatment of sexually transmitted infections (STI). However, some states require that a minor be at least 12 or 14 years old before being allowed to consent [27,34]. The majority of states include human immunodeficiency virus (HIV) testing and treatment as part of this service. Some states allow clinicians to inform parents their minor is seeking STI services, but only one state (Iowa) requires notification (specifically in the case of a positive HIV test) [6,9,27,34,35]. For updated information, please see the Guttmacher Institute website.
Cervical dysplasia — The issues related to consent for biopsy or treatment of cervical dysplasia depend upon whether the biopsy or therapy is considered part of the evaluation and treatment for STI and on the specifics of state law . Even if the minor is allowed to consent, confidentiality may not be assured. (See "Confidentiality in adolescent health care", section on 'Parental notification' and "Confidentiality in adolescent health care", section on 'Potential threats to confidentiality'.)
Prenatal care — Nearly three-quarters of states explicitly allow minors to consent for prenatal care, but some require the minor to be a certain age or to be classified as mature minors . The remaining states have no relevant policy or case law. In such states, a pregnant minor may be able to consent for prenatal care under the mature minor doctrine unless they are unable to give informed consent. Among the states that explicitly permit minors to consent, less than one-third permit a clinician to inform the minor's parents under certain circumstances (eg, if it is necessary to protect the health of the minor) . For updated information, please see the Guttmacher Institute website.
Abortion — Since 1979, a series of decisions of the United States Supreme Court have allowed states to require consent or notification of at least one parent when a minor is seeking an abortion. However, under these decisions, when states do have such a requirement, an alternative must also be in place that allows minors to obtain an abortion without first going to their parents if they are mature enough to make their own decision or the abortion is in their best interest. This procedure is most commonly a "judicial bypass," discussed below [4,38].
State laws regulating abortion in the United States are in flux (eg, in May 2022, Oklahoma banned abortion) . Most states that permit abortion require some parental involvement in a minor's decision to have an abortion (27 require parental consent, and 10 require parental notification but not consent) . Most of these states permit a minor to obtain an abortion in a medical emergency and some in cases of abuse, assault, incest, or neglect. For updated information, please see the Guttmacher Institute website.
All of the states that require parental involvement (consent or notification) permit judicial bypass if requiring parental involvement may bring harm to the minor.
Adolescents also can refuse to consent for an abortion that is desired by their parents .
Judicial bypass — In cases where requiring parental/guardian involvement (consent or notification) may bring harm to the minor, it is possible for the minor to obtain consent without parental/guardian involvement through the process of judicial bypass . Judicial bypass is a process by which a minor petitions the court to allow for an abortion to take place without notifying the minor's parent(s), either because they are mature enough to give their own consent or because an abortion without parental involvement would be in their best interests. Each state has its own guidelines for this process. States may allow for a court-appointed lawyer for free, and a time limit is provided for the decision to be handed down by the court. Some organizations, such as Planned Parenthood, help minors through this process by providing either guidance or a lawyer.
Drug or alcohol care — Nearly all states allow minors to consent for services related to counseling or treatment for substance abuse, and many of these permit, but do not require, parental notification [17,40]. When minors and parents disagree about treatment for substance abuse, some states defer to the minor and some to the parent, but the majority do not specify whether the minor's or the parent's decision is controlling .
Parents may not be aware that adolescents can provide consent for the treatment of drug or alcohol dependency . In a survey of the parents of adolescents from one Midwestern state, only 13 percent of parents knew their state law permitted adolescents to consent for treatment of drug or alcohol dependency; 23 percent thought such a law was bad, 52 percent thought it was good, and 24 percent thought it was neither .
When considering whether to notify parents in the states where parental notification is permitted, clinicians must consider whether the adolescent is capable of providing informed consent and whether parental involvement would affect treatment positively or negatively . In most cases, effective treatment is difficult without family participation .
Parent-requested drug testing — Parents sometimes request that a drug test be performed on a minor child or adolescent without the knowledge of the minor. The decision of whether the clinician should obtain the consent of the minor before testing is often left to clinician discretion.
When a parent requests testing without the minor's consent, it is of utmost importance to spend time with the parent(s) to :
●Understand why they think the test is necessary.
●Help the parent(s) understand the limitations of drug testing and more appropriate methods of detecting substance use. A negative drug screen does not exclude substance use; many drugs that are cleared quickly from the body may not be detected on a spot test. A positive test may be falsely positive . Drug testing provides no information about the pattern of use, dependence, or mental or physical impairments that may result from drug use. Problem drug use is more likely to be detected through a careful history: changes in friends, grades, school attendance, social patterns, sleep, weight, and appetite.
●Help the parent(s) understand the potential harms of such testing (eg, erosion of trust between the minor and their parents or health care provider) . Because minors are legally able to consent for drug or alcohol treatment, it may be better to allow the health care provider to explore the possibility of substance use within the privacy of the provider-patient relationship.
The provider also should interview the adolescent alone, ideally after obtaining the parents' consent to share their concerns with the adolescent . Adolescents often consent to testing when their parents' concerns are shared with them. If testing is to occur, it is essential the provider develops a plan with the parents and adolescent before the test results are obtained.
The American Academy of Pediatrics advises that only in rare exceptions should such tests be performed without the consent of the older adolescent [41,42]. These include:
●The patient lacks the decision-making capacity to provide consent
●The information gained by either the history or examination is strongly suggestive of a substance abuse problem [4,7,42]
Mental health services — Over one-half of states allow minors to consent for outpatient mental health counseling or treatment, and nearly one-half of states allow them to consent for voluntary inpatient treatment [19,43]. Many states allow minors to consent for mental health care following sexual or physical abuse.
Most states allow parents to admit their minor child to an inpatient facility without the minor's consent [4,26].
Rape or sexual assault services — Several states explicitly allow minors to consent for services related to a rape or sexual assault, including collection of medical evidence. Some of these laws require notification of parents unless they were responsible for the assault .
Immunization — There are no federal requirements to obtain signed parental/guardian consent before administration of immunizations, but individual states may require it [16,44]. Health care providers should verify the laws governing immunization in the state in which they practice . By federal law, however, all vaccine providers must give patients, or their parents or legal representatives, the appropriate Vaccine Information Statement whenever a vaccination is given.
Even in states that require parental consent for immunizations, minors may be allowed to consent to the administration of hepatitis B vaccine and possibly the human papillomavirus vaccine because these vaccines prevent sexually transmitted infections [1,13]. This is most likely in states where the law explicitly allows minors to consent for services to prevent sexually transmitted infections or reportable communicable diseases.
Sterilization — Regulations regarding consent for sterilization vary from state to state . They also depend upon the funding source and clinical status of the patient.
●Most states allow females to undergo voluntary sterilization upon reaching the age of 18 years.
●If Medicaid is paying for the procedure, it cannot be performed until the patient is 21 years old and at least 30 days have elapsed since the consent was signed.
●The requirements for a court order and/or parental consent for sterilization of a person with developmental disabilities vary from state to state. Clinicians should be familiar with the laws in their state .
REFUSAL TO CONSENT — In some circumstances, the adolescent or the parent may refuse treatment [7,47]. The reasons for refusal are variable (eg, side effects of chemotherapy, religious beliefs). The approach to refusal to consent depends upon the nature and need of the medical intervention . In cases where treatment is necessary, all attempts should be made to identify and address the underlying cause of refusal. Legal intervention may be necessary when resolution cannot be achieved through consultation and negotiation .
LIABILITY FOR PAYMENT — Treatment for which an unemancipated minor consents often is the financial responsibility of the minor . The parents may not be financially liable unless they have agreed to pay for treatment, are involved in the treatment decision, or the minor lives at home and the treatment is considered necessary [4,8,26].
Emancipated minors are typically financially responsible for the care to which they consent (whether or not it is an emergency) . The parents are unlikely to be liable unless they have agreed to pay.
RESOURCES — Resources related to consent and confidentiality in adolescent health care are provided below:
●The Guttmacher Institute provides updated information regarding state policies for specific services
●The Legal Information Institute at Cornell University Law School provides information regarding the emancipation laws in individual states
●The National Conference of State Legislatures provides information on a number of related topics, including:
•Pharmacist conscience clauses (updated 2018)
•Immunization legislation (updated 2021)
•Human papillomavirus legislation (updated 2020)
●Whether an adolescent patient is able to provide consent for medical care and service depends upon their status as a minor and what services are sought; the laws governing minor status and consent for specific services vary from state to state. Information about the laws governing minor status as it pertains to consent for health care is available through the Center for Adolescent Health & the Law (for purchase) and the Guttmacher Institute. (See 'Minor status' above and 'Consent for specific services' above.)
●The provision of informed consent implies the patient voluntarily agrees to medical care with a full understanding of their condition, the nature of the proposed treatment, the risks and benefits of the proposed treatment, available alternative treatments, and the risks of foregoing treatment. (See 'Definition and implications' above.)
●Consent for medical care of minors may be provided by a number of parties (including the minor themself), depending upon the status of the minor and the state laws regarding consent for specific services. (See 'Who gives consent?' above.)
●Notification differs from consent in that a third party is simply being told of the action rather than being asked to provide consent; it may result in violation of confidentiality. (See 'Consent versus notification' above and "Confidentiality in adolescent health care".)
●Individual states have different laws regarding the specific health services for which minors may consent. Clinicians should verify the laws regarding specific services in the state in which they practice. (See 'Consent for specific services' above.)
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