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LEGAL ISSUES: Consent by Mature or Emancipated Minors

Mature or "emancipated" minors are able to consent for some care. Public Health Law ~ 2504 codifies and expands the common law emancipation rules:

  • Any person who is 18 or older, or who is the parent of a child, or who has married, may give effective consent for medical, dental, health, and hospital services for him/herself.

  • Any person who has been married or who has borne a child may give effective consent for medical, dental, health, and hospital services relating to prenatal care.

  • Any person who is pregnant may give effective consent to medical, dental, health, and hospital services relating to prenatal care.

  • When in a physician's judgment an emergency exists and a person is in immediate need of medical attention and an attempt to secure consent would result in a delay of treatment which would increase the risk to the person's life or health, medical, dental, health, and hospital services may be rendered without parent or guardian consent.

  • Anyone who acts in good faith based on the representation by a person that he or she is eligible to consent shall be deemed to have received effective consent.

In addition, a minor who has the ability to understand the nature and consequences of being tested, may consent to an HIV test (Public Health Law ~ 2780). Other services for which a minor can consent include testing and treatment of sexually transmitted diseases, contraception, termination of a pregnancy (Public Health Law ~ 2305), outpatient mental health services (Mental Health Law ~ 33.21), and alcohol abuse treatment (Mental Health Law ~ 21.11). The Center for Adolescent Health & the Law has produced a monograph that summarizes the minor consent laws for all 50 states and the District of Columbia. Information about how to obtain a copy can be found at www.cahl.org .

In some cases there is a question of whether the parent can be or must be informed. New York law is not clear on this aspect of minor's consent for treatment. When a crime does not involve intra-familial child abuse and an adolescent requests that his/her parent not be notified, the case needs to be assessed individually. In these circumstances consult your attorney or risk management specialist. This ethical issue raises the conflict between the parent's constitutional right to raise a child without undue interference and the adolescent's constitutional right to privacy.

Factors that may affect whether a parent is notified of an adolescent's medical needs after an assault include:

  • The treatment constitutes an emergency and no notification is required

  • Determination that the adolescent is able to understand the nature and consequences of treatment decisions

  • Determination that the adolescent is able to follow through with necessary medical recommendations if parents are not notified

  • The physician has an ethical responsibility to allow the adolescent to refuse treatment

  • Possibility of imminent danger to the adolescent if the parents are notified

  • The assault was the result of intra-familial abuse and protection of the adolescent requires that no information be given to the parents until law enforcement can investigate

  • Notification may prevent the adolescent's suicide or other harmful acts

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Legal Issues: Overview  Legal Issues: Consent by Mature or Emancipated Minors  Legal Issues: Protective Custody  Legal Issues: Medical Records  Legal Issues: Confidential and Privileged Communication  Legal Issues: Subpoenas  Legal Issues: Judicial System  Legal Issues: Testifying as a Fact Witness   Legal Issues: Testifying as an Expert  Legal Issues: Testifying in Court  Legal Issues: Additional Resources 

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