Minor Consent to Treatment

California law authorizes the parent(s) or guardian of a minor child (i.e., anyone under the age of eighteen years) to give informed consent for most medical decisions on behalf of a child. However, there are exceptions, and there are certain types of medical care for which minors may themselves consent. For more information on the confidentiality of a minor’s medical records, both under California law and under the federal privacy rules (HIPAA), see CMA ON-CALL document #1150, "Patient Access to Medical Records."

STATUTES AUTHORIZING MINORS TO CONSENT TO TREATMENT

Minors Authorized to Consent Because of Their Status
There are generally two types of statutes which authorize minors to consent to medical treatment. First, there are statutes which authorize minors who have attained a certain status to consent to virtually all types of health care except certain irreversible and highly invasive procedures such as psychosurgery. Minors authorized to give legal consent to medical treatment under these statutes include:

• a) Married (or divorced) minors (Family Code §§7002 and 7050(e)(1);
• b) Minors on active duty with the U.S. Armed Forces (Family Code §§7002 and 7050(e)(1);
• c) Minors emancipated by a court order (Family Code §7120); and
• d) Self sufficient minors (minors fifteen years or older living away from home and managing their own financial affairs (Family Code §6922).
  

However, the physician may, with or without the consent of "self-sufficient" minor, advise the minor’s parent or guardian of the treatment given or needed if the physician has reason to know, on the basis of information given by the minor, the whereabouts of the parent or guardian. Despite this qualification, a physician should be cautious in contacting the minor’s parent or guardian, since a disclosure of a minor’s medical information may constitute an unlawful invasion of the minor’s right of privacy under the state constitution or under the privacy regulations enacted pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA Privacy Rules). Again, see CMA ON-CALL document #1150, "Patient Access to Medical Records," for more information.

Such a minor should be asked to complete a form which provides information demonstrating that the minor falls within the statute. An example of such a form is attached. The form should be placed in the minor’s medical record.

• a) Pregnancy, Contraception, and Abortion. Care for the prevention or treatment of pregnancy (including contraception and abortion, but not sterilization) for minors of any age (Family Code §6925). (A law which would have established a parental or court approval requirement for abortion is NOT IN EFFECT, since the California Supreme Court has decided that the law violated minors’ right of privacy, American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 66 Cal.Rptr.2d 210, and California voters have rejected two (2) subsequent state propositions that would have required parental notification related to abortion.) The right of a minor to consent to pregnancy related services includes genetic counseling and testing services which, under the law, must be offered to all pregnant women. (Health & Safety Code §125000.) Most recently, in 2005, Californians defeated Proposition 73, which would have required parental notification related to performance of abortion services for minors over the age of (12) twelve;
• b) Contagious Diseases. Care of any infectious, contagious, or communicable disease of the type which must be reported to the local health officer if the minor is twelve (12) or older (Family Code §6926);
• c) Sexually Transmitted Diseases. Care of a sexually transmitted disease if the minor is 12 or older (Family Code §6926);

Note: It is unclear whether a minor can consent to the new human papillomavirus vaccine (HPV), which can prevent most genital warts and most cases of cervical cancer. In that it is a preventative measure, the vaccine arguably does not fall into the category of procedures for which minors can consent because its purpose is not to diagnose or treat a sexually transmitted disease. Thus, until this controversial current issue is resolved, (although it is important for 11-12 year old girls to get the vaccine), physicians should be cautious in giving it without parental consent. For a discussion of the vaccine and consent issue, go to the National Center for Youth Law at: www.youthlaw.org or download the PDF below

Youth Law News, Journal of the National Center for Youth Law
Targeting Adolescents for an STD Vaccine: Parent Interest and Strategies to Encourage Vaccination.
Vol. XXVII No. 3. July-September 2006

	Click to Download
	207kb pdf