A middle school student approaches a school-based Brook Lane mental health therapist. “I need counseling, and I don’t want my parents to know.” The therapist agrees.
The therapist’s agreement to this student’s request represents an evolution over many years of the legal right to consent to treatment. Initially, the legal right was established for adults to consent to treatment and for adults to consent to treatment for their children. As a next step, laws limited the right of parents in certain situations. Finally, and recently, this legal progression has resulted in the right of children themselves to consent to their own treatment.
The legal right of the middle school student to seek treatment on his own is the result of a recently enacted Maryland law that aims to encourage and empower children and adolescents to act responsibly and make healthcare decisions for themselves. For many reasons, this is a work in progress that, although well-intentioned, is nevertheless controversial and far from resolved.
The parent-child relationship is complex on many levels. Any discussion about the legal right of children to consent to treatment inevitably involves the legal rights of parents and parental authority. Bringing government and the law into an already complex parent-child relationship further complicates the situation.
Historically, government regulation has supported the authority of parents in raising children. For example, parents have the legal right to homeschool their children. However, in certain situations, state regulation has limited and restricted parental decisions about their children. A parent can decide to homeschool a child, but the education of children in some state-approved manner is mandatory. Furthermore, teachers and healthcare professionals, among others, are mandated reporters. This means they must report to authorities any suspicion of abuse or neglect of a child by a parent.
With this history, the legal right to consent to the treatment of children by parents—and eventually the right of children themselves to consent—begins with the right of adults to consent to their own treatment. Justice Benjamin Cardozo in Schloendorff v. Society of New York Hospitals (1914) wrote, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” This case established the principle of informed consent, which has become central to modern medical ethics.
In a subsequent case, the court ruled that the right to consent included the right of a Jehovah’s Witness to refuse treatment on religious grounds, even life-saving blood transfusions. But in a further development of the right to treatment, the court in Prince v. Massachusetts ruled that parental authority is not absolute in similar situations: “Parents may be free to become martyrs themselves. But it does not follow they are free… to make martyrs of their children…”
Over time, most states began to recognize the right of children and adolescents to consent to treatment in certain limited situations. Maryland law, as is the case in other states, has for many years mandated that minors have the same decision-making authority as adults when it comes to decisions about reproduction and substance abuse. For example, a minor in Maryland may seek treatment regarding contraception or abortion without parental consent. Attempting to balance the rights of parents and children, “parental notification” is required or allowed in some states. Maryland law leaves it to the discretion of the medical provider to contact the parent of a child seeking medical treatment in these situations on their own authority.
Returning to our twelve-year-old middle school student seeking counseling: Over the past few years, many states have sought to expand this previously limited right of children to consent to treatment to include mental health treatment. The rationale is that some children and adolescents are living in abusive family situations, and the requirement of parental consent might put the child at further risk.
The first step in Maryland to include a minor’s consent to mental health treatment was legislation some years ago allowing a sixteen-year-old to seek mental health treatment without parental consent. In a further development of this right, Governor Hogan in 2021 signed legislation allowing twelve-year-olds to consent to mental health treatment. It was controversial at the time, as legislators in both chambers staunchly opposed this legislation, arguing it undermines parental authority and is unrealistic, given that twelve-year-olds may not be cognitively able to give informed consent.
Proponents argue that there are situations of possible parental abuse or neglect and that “there are some kids that just have a harder time than others and don’t have parents who can provide the type of support they need.” They cited statistics that 24% of adults surveyed had experienced three or more traumatic events as teenagers.
The 2021 legislation signed by Governor Hogan does recognize that expanding the rights of children limits parental authority. As a result, it included guardrails in the legislation. If treatment is initiated without parental consent or involvement, a parent is not obligated to pay for the treatment. A therapist must also assess the maturity level and cognitive ability of the twelve-year-old seeking treatment. Additionally, a minor must be at least sixteen years old to consent to medication.
Time will tell if the 2021 Maryland legislation does, in fact, support children being more responsible for themselves and provides an opportunity for a child or adolescent to receive treatment that otherwise would not be available in certain family situations. Others believe that this is an unfortunate balancing of parental authority and children’s rights that goes too far, weakens parental authority and is unrealistic. They believe that most likely, such legislation will result in twelve-year-olds having a right to mental health treatment without, in fact, the likelihood of treatment ever being provided. Time will tell.
J. Emmet Burke, PHD, JD is an admitting psychologist working in Brook Lane’s inpatient unit. He holds a Doctorate degree in clinical psychology from the Catholic University of American in Washington, DC and a Juris Doctorate from the University of Maryland School of Law. He has been on staff since 1980. Dr. Burke also has clinical privileges at Western Maryland Health System in Cumberland, MD.
