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Legal issues in adolescent care
Providing care for adolescents presents healthcare professionals with several special challenges, including consent, confidentiality, and legal issues. Legal and ethical issues are clear for children and individuals age 18 and older. However, the healthcare professional’s legal responsibilities to adolescents and their families differ from state to state. Every state in the United States has laws that regulate some of the circumstances where an adolescent may consent to his or her healthcare and also when this care is confidential. Some states allow physicians to notify an adolescent’s parent about care, but do not require the physician to do so, creating an ethical dilemma for some healthcare professionals. The legal language usually specifies physician.
Some states provide a legal definition of emancipation, while other states do not. The legal definition of emancipation may differ from state to state and can be confusing. The age at which an adolescent may consent to medical testing and treatment may be defined by state law, and the exact age may differ within a state for specific healthcare needs. For example, in Oregon, adolescents of any age may give consent for contraceptive services and STI treatment but must be at least 15 to give consent for prenatal care.
Adolescents may be considered emancipated in some states if they are married, are parents, have served in the military, or otherwise show evidence of independence such as supporting themselves or living apart from their parents.1 The language defining emancipation and “mature” minors may be confusing. For example, in Wisconsin, an adolescent is considered capable of making decisions about her own treatment while she is pregnant but not after she has given birth. She is considered capable of making medical decisions for her child but not for herself.
Federal law may also limit or expand the scenarios in which an adolescent may consent to medical care. Title X of the Public Health Service Act requires state recipients of this funding to provide confidential family planning services for adolescents.2 The Health Insurance Portability and Accountability Act (HIPAA) creates three special situations unique to adolescents in which the adolescent maintains the right to control his or her medical information. These circumstances include the treatment that is allowed under state or federal law, treatment an adolescent legally receives without parental consent, and times when a parent has agreed to allow confidentiality for the adolescent. However, HIPAA doesn’t designate that the bill for treatment is confidential and this bill may be sent to the parent if the parent is the insured party. This disparity may create circumstances where a parent may discover a visit to a healthcare professional that the adolescent had thought was confidential. The parent may demand to know the details and the healthcare professional will not wish, nor be allowed by law, to discuss these details with the parent without the adolescent’s consent.
Because the laws pertaining to medical treatment and confidentiality vary from state to state, healthcare professionals should be aware their own state laws. If the healthcare professional practices in two or more states, he or she must be aware that the laws may be different.
Medical concerns not involving reproductive care or STI care are rarely addressed in state or federal law. About half of the states allow adolescents to seek treatment for mental health issues without parental consent. The situations that catch media attention are usually extreme cases involving adolescents who refuse treatment for life-threatening illness or blood transfusions.
Beyond the question of immediate treatment, the healthcare professional may screen the adolescent for high-risk behaviors such as alcohol or drug use, sexual behavior, violence, and mental health issues. The adolescent is more likely to disclose risky behaviors if he or she believes that the disclosure is confidential.3 If the adolescent discloses behaviors that may put him or her at risk, the healthcare professional must decide whether parental notification is justified. If the adolescent is not judged competent by the healthcare professional, the practitioner is obligated to inform the parent of treatment options. The judgment of competence outside of emancipation is subjective. If the healthcare professional thinks that the teen is competent and capable of informed consent, the implications are also murky. Legal precedent has not been clear or definitive.4
When the law is not explicit, the healthcare professional must consider his or her ethical perspective. This perspective should be made clear to the adolescent before care is provided. The development of an office policy about parental involvement and confidentiality will provide clarity to adolescents and their families.1 This policy should be disclosed to adolescents and their parents. If the adolescent chooses to establish care with another practitioner, this decision should be treated with respect. If the healthcare professional cannot ethically abide by the wishes of the adolescent or disagrees with state law governing treatment of the adolescent, the healthcare professional is obliged to be honest with the adolescent about the inability to provide care and be willing to refer him or her to a practitioner who is willing and able to provide the care sought by the teen.
Parents often believe that they are legally privileged to all care and conversation between their adolescent child and the healthcare professional. Hutchinson and Stafford7 found that providing written and verbal education to parents about adolescent risk behaviors and clearly communicating the healthcare professional’s confidentiality policy were effective in allaying parental fears regarding treatment of their adolescent children and increasing understanding of adolescent confidentiality rights.
Bruce et al.1 provide an ethical framework for providing confidential care for adolescents. This framework includes an awareness of state law, developing a general policy regarding parental involvement and making this policy transparent to adolescents and their families, and maintenance of honesty regarding all interactions with the adolescent. This honesty extends to situations in which the healthcare professional feels that confidentiality must be breached for the adolescent’s safety. The authors also believe that ethically, if the healthcare professional feels that abuse or harm to the adolescent may result from disclosure to parents about treatment, the professional may find it necessary to violate state law.1
Caring for adolescents may be difficult and uncertain. The healthcare professional who is aware of his or her own ethical biases and framework will find it easier to engage adolescents in self-care behaviors and work with families. The development of policies will enable families and healthcare professionals to provide care uniformly and consistent with state law.
Bruce CR, Berg SL, McGuire AL. Please don't call my mom: pediatric consent and confidentiality. Clin Pediatr. 2009;48(3):243–246.
English A. Sexual and reproductive healthcare for adolescents: legal rights and policy challenges. Adolesc Med State Art Rev. 2007;18(3):571–581.
Roberson AJ. Adolescent informed consent: ethics, law, and theory to guide policy and nursing research. Journal of Nursing Law. 2007;11(4):191–196.
Newman A. Adolescent consent to routine medical and surgical treatment. J Leg Med. 2001;22(4):501–532.