7 Clearinghouse Rev. 1 (1973-1974)

handle is hein.journals/clear7 and id is 1 raw text is: Medical Treatment and the Teenager: The Need for Parental Consent
by Joanne B. Stern,* National Health Law Program, Los Angeles, California

In order to encourage teenagers to seek treatment for
drug related ailments, there is a need for extensive
legislative reform in the area of parental consent. State laws
need to be changed to omit the parental consent require-
ment for teenagers who seek medical treatment for drug
related conditions and to give immunity to physicians who
treat such teenagers without parental consent.
While the prevalence of drug related problems among
teenagers has increased,' the incentive to seek medical help
for such problems has not. One of the primary reasons for
this is the existence of parental consent laws which
effectively prevent or deter the hospital or physician from
treating the teenage drug user without first notifying his
parents and obtaining their consent.2 Since most teenagers
are particularly concerned about preventing parental knowl-
edge of their drug related conditions, such laws tend to
inhibit young drug users from seeking medical treatment
for such problems.
The problem of parental consent involves two major
issues: first, the restrictive state laws which implicitly or
explicitly provide that parental consent is necessary before
medically treating virtually all minors under the age of 21 ;3
*The author acknowledges the assistance of John Merrill on the
researching of this paper.
1.   See, e.g., BRENNER, COLES & MEAGHER, PREFACE TO
DRUGS AND YOUTH: MEDICAL PSYCHIATRIC AND LEGAL
FACTS (1970).
2.    Generally the statutory mechanism creating the requirement
of parental consent is that of statutes defining the age of majority.
See, e.g., WIS. STAT. 990.01 (20) (1958), amended ch. 213, Laws
1971 which says both men and women attain majority at 18. WYO.
STAT. ANN 14-1.1 (Supp. 1971) to same effect. In most states
there are special provisions which lower the age of consent for
certain medical procedures such as the diagnosis and treatment of
venereal diseases and blood donation. See, e.g., IOWA CODE
140.9 (1972) which states that minors who are 16 years or older
may consent to medical care related to venereal disease and IOWA
CODE 500.6 (Supp. 1973) allowing minors at least 18 years of age
to donate blood to any voluntary and noncompensatory blood
program. Such a statute by negative implication may indicate that
other procedures require consent if the patient is a minor. For the
possibility of criminal prosecution as well, see Pilpel & Wechsler,
Birth Control, Teenagers and the Law, 1 FAMILY PLANNING
PERSPECTIVES 30 (Spring 1969).
3.   Id. and Zoski v. Gaines, 271 Mich. 1, 260 N.W. 99 (1935);
Zaman v. Schultz, 19 Pa. D7C 309 (1933); Moss v. Rishworth, 222

and second, the apprehensive attitude of physicians and
hospitals (reflected in hospital guidelines and professional
manuals) regarding the potential liability of providers if
they treat minors without their parents' approval.4
Insofar as state rules are concerned, there is a wide
variety of legal approaches to the problem of parental
consent.5 In most states, the general rule is that a physician
must obtain the consent of the parents or the person
standing in loco parentis before examining or treating a
minor except in cases of emergency or where the minor
is emancipated.''6 In many other states, exceptions are
also made for mature minors,7 and for minors who have
S.W. 225 (Tex. Comm. App. 1920); In re Hudson, 13 Wash. 2d 673,
266 P.2d 765 (1942); Bonner v. Moran, 126 F.2d 121 (D.C. Cir.
1941); Bishop v. Shurley, 237 Mich. 76, 211 N.W. 75 (1926);
Sullivan v. Montgomery, 155 Misc. 448, 279 N.Y.S. 575 (1935);
Lacey v. Laird, 166 Ohio St. 12, 139 N.E.2d 25 (1956);all holding
that physician must obtain parental consent before treating a minor.
4.    THE HOSPITAL LAW MANUAL for example states:
The courts have held that, as a general proposition, the
consent of a minor to treatment is ineffective, and that the
physician must secure the consent of the minor's parent or
someone standing in Isicl loco parentis, or risk liability to
the minor of the parent.
II HOSPITAL LAW MANUAL 4-1, at 32a. The Manual also points
out another problem aside from liability for battery. Without the
consent of the parent, the doctor may not be able to obtain an
enforceable obligation for his services.
5.    For a general compilation of such laws see Pilpel & Wechsler,
Birth Control, Teenagers and the Law, 1 FAMILY PLANNING
PERSPECTIVES 29 (Spring 1969).
6.    The exceptions made for treatment given in emergencies have
been created both by case law and by statutes. See, e.g., Luka v.
Lowrie, 171 Mich. 122, 136 N.W. 1106 (1912) and Ala. Pub. Act
No. 2281 (Laws 1971 )-Where delay would increase the risk to the
minor's life. health or mental health. Fla. Sess. Law. ch. 72-131
(1972); ILL. STAT. ANN. ch. 91 18.3 (Supp. 1972). Some cases
hold that an emancipated minor may effectively consent to all
forms of medical treatment. A similar result is reached by statute in
some jurisdictions. See, e.g., ARIZ. REV. STAT. ANN. 44-132
(1967); CAL. CIV. CODE ANN.  25.6 and 34.6 emancipated
minors over 15; COLO. REV. STAT. ANN. 41-2--13 (Laws
1971) over 15; IND. ANN. STAT.  34--4409.
7.    MISS. CODE     ANN. 7129-1 (h) (Supp. 1971), an
unemancipated minor of sufficient intelligence to understand the
proposed medical or surgical treatment may give effective consent.
HOSPITAL LAW MANUAL, supra note 4, at 39. When a minor is
over the age of fifteen years, his consent alone may be sufficient, if

VOLUME 7, MAY 1973

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NUMBER 1

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