One potential allegation that may be a basis for a claim of medical malpractice is that the medical provider failed to properly obtain informed consent. Informed consent is a concept that pertains to ethics. The fundamental belief is that a patient should comprehend and willingly agree to undergo medical treatment. In addition, the patient should understand the potential risks involved in procedures or treatments and the risks of inaction. How do these obligations apply when the patient is a minor?
Challenges for Lawmakers
State laws vary regarding whether minors should be able to consent to medical care. Many believe that parents have an inherent right and a responsibility to be involved in their child's health care. Many young people may lack the ability and experience to reach a truly informed decision. Some people believe that a minor should be afforded privacy and confidentiality in medical matters.
There have been some long-standing exceptions to minor consent laws. In cases of a medical emergency generally, the laws of informed consent are deemed as inapplicable regardless of age. In an emergency, it is typically assumed that the treating physician will act according to what they believe is in the best interest of the patient. Another exception exists when the minor has been emancipated, such as if they are married.
Minor Consent Laws in Maryland
- Pregnancy: A health care provider may provide information regarding the treatment of a minor to a parent or guardian, but there is no requirement to do so. In regards to pregnancy issues, the minor is deemed as capable of consenting to treatment. It is important to note that minors are not able to consent to undergo an abortion procedure without a parent or guardian notification.
- Birth control: Minors are capable of giving consent for treatment that involves contraception. It is important to note that minors are not able to consent to treatment for sterilization.
- Venereal disease: A minor is able to consent to treatment that relates to sexually transmitted diseases. Prior to administering a test for HIV, a provider must obtain informed consent in writing unless the process is done anonymously. There is no requirement that students reveal their HIV status to schools.
- Treatment for alcohol or drugs: Minors generally may consent to drug and alcohol treatment. A minor may not refuse treatment for alcohol or drug abuse if a parent has given prior consent.
- Mental health care: Minors who are 16-years-of-age may consent to “consultation, diagnosis, and treatment of a mental or emotional disorder.” A minor may not refuse treatment for emotional or mental disorders if a parent has given prior consent.
- Sexual assault: A minor is considered to have the capacity to provide consent to an examination and treatment of injuries. They also may consent to an exam for purposes of gathering evidence for a possible rape to assist law enforcement.
The “Mature” Minor Rule
In some states, the law will potentially allow the minor to consent to some forms of treatment based on an assessment of the minor's maturity and intellect. This is often referred to as the “mature minor rule.”