She Was Not 18. Could She Give Informed Consent?

Jane, aged 17 years and a very mature adolescent, presents to “Dr Derm” for removal of a facial nevus. Dr Derm discusses the risk/benefit ratio of such an excision. During the discussion, he determines that she is working a full-time job and lives with her boyfriend in her parents’ home. She signs a standard consent form. Dr Derm does not realize that she is 17; he did not ask. Ultimately, she is not happy with the scar and wishes to sue her dermatologist. The basis of her lawsuit is that at age 17 years she was not able to provide informed consent. Dr Derm is aware that, generally, a patient must be 18 years or older to provide informed consent. However, he contends that Jane was highly intelligent, articulate, and had a better understanding of the procedure than some patients aged 19 years might have had. Can Jane, as an adolescent, give informed consent?

David J. Goldberg, MD, JD, is medical director of Skin Laser and Surgery Specialists of New York and New Jersey.

From a purely practical point of view, most would agree that today’s adolescents are maturing more quickly than ever. A girl aged 17 years during the 1940s or 1950s is not a girl aged 16 years in 2023. Many criminal courts are convinced that a juvenile can be tried as an adult. This being the case, can we say that Jane had the right to be treated as an adult and to make her own medical decisions? Was she legally able to sign an informed consent form?

The general rule has been that until one reaches the age of majority (generally 18 years), one cannot lawfully make a final decision as to medical treatment. There are 2 exceptions that are generally recognized. They are the emergency exception and the “emancipated minor” exception.

An emancipated minor includes an adolescent younger than 18 years (in most jurisdictions) who is married and living away from home, as well as a teen living a totally independent life and for whom the parents have abrogated all responsibilities. Some courts, such as in the state of Washington, have considered age, intelligence, maturity, training, experience, economic independence, and freedom from parental control as determining factors. Other states, such as Vermont, have enacted an “emancipation minor law.” This law includes 3 general categories: valid marriage, active military duty, and court-ordered emancipation. The law further states that the child must be aged at least 16 years and have lived apart from the parent or guardian for at least 3 months. It is not clear that Jane can give legal consent in Washington. Because she was still living with her parents, she could not do so in Vermont.¹

There is another way that courts and legislatures have avoided the strict chronologic aged 18 years rule in some cases. This has been through adoption of the concept known as “the mature minor.”

The courts have not provided an exact definition of the mature minor. Regardless, mature minor statutes exist in most jurisdictions, permitting underage adolescents the right to consent to treatment of certain specified medical problems such as sexually transmitted diseases, use of contraception, pregnancy, substance abuse, and mental illness. Nevertheless, courts continue to struggle with the wishes of the adolescent and the need for her to show she fits into one of the exceptions to the general rule that one must be aged 18 years before being permitted to give consent to one’s own medical treatment.

There has been a common theme among the court cases. How can a minor who is not aged 18 years demonstrate sufficient maturity to the court? A 1955 New York case was among the first to examine this issue. In the case involving Martin Seiferth Jr, the state tried to take custody of a boy aged 14 years from his parents. Custody was sought so that the teen, who had a severe cleft palate condition, could obtain the necessary plastic surgery. The father believed that “mental healing” could take the place of surgery and had convinced his son of such. The judge found that the child was mature and intelligent, stating: “Schooled as he has been for all of his young years in the existence of forces of nature and his fear of surgery upon the human body, I have come to the conclusion that no order should be made at this time compelling the child to submit to surgery. His condition is not emergent and there is no serious threat to his life or health.” The boy was therefore allowed to consent to not having the surgery.²

Dr Derm will have difficulty showing that Jane is either emancipated or of appropriate maturity. It is unlikely that a court would rule that she could give informed consent.

David J. Goldberg, MD, JD, is medical director of Skin Laser and Surgery Specialists of New York and New Jersey; director of cosmetic dermatology and clinical research at Schweiger Dermatology Group in New York, New York; and clinical professor of dermatology and past director of Mohs Surgery and Laser Research at the Icahn School of Medicine at Mount Sinai in New York, New York.

References

1. Davis M, Fang A. Emancipated minor. In: StatPearls[Internet]. StatPearls Publishing; 2023. Updated May 1, 2023. https://www.ncbi.nlm.nih.gov/books/NBK554594/
2. Matter of Seiferth. 309 N.Y. 80, 127 N.E.2d 820 (1955)