Scholar’s Corner: Recent Scholarly Works in Global Health Law

Whose Body is it Anyway? An Updated Model of Health Care Decision-Making Rights for Adolescents

 

Kimberly Mutcherson
Rutgers School of Law-Camden

June 1, 2005

 

Abstract:     

This article queries whether the law inappropriately deprives adolescents of the right to participate in and potentially direct their own healthcare. I argue that the broad withholding of healthcare decision-making rights from adolescents is morally unfounded and practically unnecessary and that the age marker dividing childhood from adulthood for purposes of healthcare decision-making has been set too high. Evidence of adolescent cognitive abilities requires a re-imagining of the appropriate balance between over and under protection of young people in the law. In choosing the chronological age marker of eighteen, the law denies rights to fourteen to seventeen year old adolescents who are capable of exercising such rights in a thoughtful fashion.

Part I provides an overview of the existing healthcare-related legal landscape for young people including state statutes providing limited rights to healthcare decision-making in a small universe of cases. This part describes the ways in which the law reinforces outdated notions of broad adolescent incompetence while also carving out limited spaces in which adolescents may engage in autonomous decision-making.

Part II discusses the limitations of the current system of state laws and suggests what might be gained from more comprehensive thinking about and legislating for adolescents. This part details the ways in which the lack of a legally enforceable right to consent to healthcare ignores the realities of family life, leads to a lack of family communication in some circumstances, and discourages the creation of optimal healthcare provider/patient relationships thus compromising the quality of care provided to adolescent patients. Though there are certainly benefits conferred on young people by the current system, the system’s flaws outweigh its strengths.

Part III proposes a shift in the existing hodgepodge of laws providing limited healthcare decision-making power for adolescents. I articulate explicit and implicit goals of healthcare emancipation statutes and offer a proposal for better achieving both types of goals that rests upon a model of shared healthcare decision-making powers for parents and adolescents. I suggest that an appropriate response to the shifting parameters of adolescence and adulthood and the increasing scientific evidence of the fluidity of these categories is a reduction in the age of consent for healthcare decision-making to fourteen from the usual eighteen, thus allowing young people to share decision-making power with their parents or other adult caretakers in most circumstances. I envision a regime in which the baseline assumption is that parents and adolescent children between the ages of fourteen and seventeen share decision-making responsibility for most healthcare decisions. This regime is premised upon the idea that adolescents have the right to know about their own healthcare status and have the capacity to meaningfully participate in decisions about their own healthcare even in the face of parental conflicts.

Part IV provides justification for imposing the shared decision-making model and details why making this change through a rights bearing framework is appropriate as well as why such a change will accrue to the benefit of adolescents and their families.