HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Monday, April 4, 2011

Adolescent Consent to Abortion, Mental Health Care, and Health Care Services in General

 The following appeared last week in a Minnesota newspaper:

Senate Republicans have included a provision in a health and human services omnibus bill that would repeal Minnesota’s minors’ consent laws.  Those laws, first enacted in 1971, allow Minnesotans under the age of 18 to access mental and physical health care, as well as substance use care.  The bill would strip those laws from the books and only allow a minor to seek those services in the case of incest. 

Andy Birkey, Senate Republicans Seek Repeal of Minors’ Consent for Health Care, The Minn. Indep., Mar. 28, 2011.

The debate on this bill, of course, focuses on whether adolescents should be able to access abortions without the permission of their parents.  As this article points out: “Anti-abortion rights groups have been attacking [minors’ consent] laws through legislation and lawsuits over much of the past decade . . . [although i]f the proposed bill became law, it would be one of the most restrictive in the country.”

But what often gets overlooked in these debates is whether adolescents should be able to access other forms of health care services, particularly mental health care, without the permission or knowledge of their parents or other legal guardians, as well as whether revisions such as the ones being considered in Minnesota may inadvertently impact this access as well.    

The trend in recent years has been to expand the ability of adolescents to access mental health care.  California, for example, enacted a law on September 29, 2010, that allows “children ages 12 and older to consent to their own mental health care if a mental health professional deems them mature enough to intelligently participate in treatment.” National Center for Youth Law, New CA Minor Consent Law Increases Teens’ Access to Mental Health Care, 29(3) Youth L. News (July-Sept. 2010).

The impetus for such laws is often the suicide of a youth, the implication being that these youth were unable or unwilling to discuss their underlying mental health problems—often attributed to bullying or harassment—with their parents and that if they had been able to independently access mental health services these tragedies would have been averted.  Notably, the Centers for Disease Control and Prevention reports: “For youth between the ages of 10 and 24, suicide is the third leading cause of death. It results in approximately 4400 lives lost each year.”  See Centers for Disease Control and Prevention, Suicide Prevention: Youth Suicide (2009). At the same time, it is generally estimated that roughly 20% of U.S. children ages nine to seventeen have a diagnosable mental or addictive disorder associated with at least minimum impairment.  See U.S. Dep’t Health & Human Servs., Mental Health: A Report of the Surgeon General, Ch. 3: Children and Mental Health (1999).

However, frequently left unaddressed by this legislation are a number of other important issues, including how adolescents are to identify, access, and pay for such services; which services are effective in this context; whether youth fully understand the implications of obtaining mental health services (including that a mental health professional may be subject to reporting requirements or be obligated to take other steps to protect the adolescent without the adolescent’s permission); and whether they should be able to independently obtain psychotropic medications and other forms of mental health treatment (the recently enacted California law generally requires parental consent).  

There are also a series of important issues associated with adolescents being able to access health care services in general, including whether distinctions should be made between different types of services such as abortions and mental health treatment.  Although a continuing legislative concern and at one time a focus of considerable academic interest, little scholarly attention has been given to adolescent decision making in the health care sphere of late.  For one relatively recent effort to provide a basic thematic framework based on empirical findings for these decisions, see Baruch Fischoff, Assessing Adolescent Decision-making Competence, 28 Developmental Rev. 12 (2008).

-- Guest Blogger Thomas L. Hafemeister

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