Question: C, age 17 years, was diagnosed with Hodgkin’s lymphoma. According to her oncologists, chemotherapy would offer an 80% chance of cure, whereas death within 2 years was almost a certainty without treatment. C refused treatment, a decision supported by her mother. Under these facts, which of the following is best?
A. C has a constitutional right to forgo medical treatment.
B. C is a minor and needs parental consent regarding all medical intervention.
C. The mother’s refusal to give consent means the doctors have no recourse but to accept the joint decision of mother and daughter.
D. If C can show she is a mature minor or an emancipated minor, she can then decide for herself.
E. In life-and-death matters, the state has the authority to compel lifesaving beneficial treatment without prior judicial approval.
Answer: D. The above scenario raises the issue of doing what’s best when a minor refuses clearly beneficial medical treatment. It is taken from a very recent case wherein the Connecticut Supreme Court held that the state could force treatment in a minor with Hodgkin’s lymphoma. The patient, a 17-year-old teenager, knowingly and with full information, objected to receiving treatment, a decision supported by her mother. There was no finding of mental incompetence or deficiency in either mother or daughter. Can the daughter, against her will, be forced to receive treatment?
The teenager, known as Cassandra, was diagnosed with Hodgkin’s lymphoma, which her oncologists believed had an 80% chance of remission if treated with chemotherapy. Cassandra refused, a decision supported by her mother with whom she lives. Placed under the jurisdiction of Connecticut’s Department of Children and Families (DCF), she initially agreed to a trial of medication if the state allowed her to stay at home with her mother, but she ran away. The case is reminiscent of Billy Best , a 16-year-old diagnosed with Hodgkin’s disease in August 1994, who ran away from his Massachusetts home after 2½ months of chemotherapy because he felt the medicine was killing him instead of helping him.1
In order to compel treatment, DCF had to obtain judicial approval, which the lower court granted notwithstanding arguments that forcing Cassandra to undergo unwanted medical treatment against her will violated her constitutional substantive due process rights. Also, as there was no competency hearing, so the litigants asserted that this was also a violation of her procedural due process rights. On appeal, the Supreme Court of Connecticut found that Cassandra was not a mature minor, and thus had no constitutional claim to the right of medical decision-making autonomy.2 The Court unanimously ruled that the state could compel treatment. Its final opinion is yet to be published, but in its preliminary order, the Court wrote: “… Cassandra is suffering from Hodgkin’s lymphoma, a cancer that has a high rate of cure if treated and that will certainly kill Cassandra if not treated … Cassandra represented, under oath … that she would undergo treatment for her cancer if she were allowed to return home, and then was allowed to do so, she ran away from home and stopped treatment. Thus, … Cassandra either intentionally misrepresented her intentions to the trial court or she changed her mind on this issue of life and death. In either case, her conduct amply supports Judge Quinn’s finding that the respondents have failed to prove that Cassandra was a mature minor under any standard.”
Whereas all adults of sound mind are presumed to be competent to give informed consent, the doctor typically needs permission from the parents or guardian for a minor unless emancipated, i.e., conducting himself or herself as an adult and is no longer under the support or control of the parents. Another exception is the “mature minor,” a term used to describe the minor who is able to understand the nature and consequences of treatment. In 1987, the Tennessee Supreme Court was the first to recognize a mature minor exception to the common law rule that requires a physician to obtain parental consent.3 The issue there was whether Sandra, an alleged malpractice victim 5 months shy of her 18th birthday, was capable of giving consent for an osteopathic treatment. The court acknowledged that for well over a century, the common law recognized that minors achieved varying degrees of maturity and responsibility, and referenced the common law rule of capacity, known as “ The Rule of Sevens .” The Rule presumes differing levels of capacity depending on whether the individual is less than 7 years old, between the ages of 7 and 14, or older than 14 years. The youngest group lacks capacity, but a rebuttable presumption of lack of capacity exists for children between the ages of 7 and 14, and one presuming capacity exists for children between the ages of 14 and 21. In Commonwealth jurisdictions, the term “ Gillick competence ” is used to describe a minor under the age of 16 years who is deemed to have legal capacity to consent to medical treatment if there is sufficient intelligence and maturity to understand the nature, implications, and consequences of treatment.
Two years later in a landmark case,4 the Illinois Supreme Court specifically recognized the right of some minors to refuse medical treatment. The litigant was a 17-year-old girl with leukemia who needed life-sustaining blood transfusions. Both the minor and her mother were Jehovah’s Witnesses, and withheld consent to the blood transfusion because of their religious beliefs. The Court opined that the age of majority, “is not an impenetrable barrier that magically precludes a minor from possessing and exercising certain rights normally associated with adulthood,” and that if clear and convincing evidence was presented regarding maturity, then the “mature minor doctrine affords [the minor] the common law right to consent to or refuse medical treatment.” The following year, the Maine Supreme Judicial Court held that a minor’s clear and convincing decision not to be maintained by life-sustaining procedures must be respected.5 In that instance, Chad, a minor just under 18, had lapsed into a persistent vegetative state following an auto accident.
Other court decisions favoring the minor abound.6 For example, a court held that a 14-year-old boy could decide whether he wanted his cleft palate and harelip repaired, regardless of his father’s objections to the operation. In another case, the court ordered treatment for a 12-year-old arthritis victim whose parents relied on faith healing, where there was uncontested medical testimony in favor of treatment. In yet another, a 13-year-old boy was placed under state supervision for purposes of receiving chemotherapy and surgery that was estimated to have a 65% of curing his cancer. The court ruled that the information given by his father regarding the preference for and effectiveness of herbal therapy was wrong, and the minor’s refusal of consent was not an informed one. On the other hand, even a mature minor does not have an unfettered right to refuse treatment, especially where such refusal is against medical advice. For example, a 16-year-old was forced, against her will, to accept tube feedings to treat her condition of anorexia nervosa.
In addressing the right of mature minors to refuse life-sustaining treatment, the 1985 New York Task Force on Life and the Law acknowledged the need to balance “the developing rights of the minor and parental rights,” and society’s interest “in promoting the autonomy and well-being of minors.” The Task Force recognized that some minors have the maturity and capacity to participate in medical decisions, and recommended that the treating physician assess the minor’s maturity, conceptual ability and life’s experience in order for the minor to assume a substantial, though not exclusive, role in decisions to refuse life-sustaining treatment.
Notes
1. Joan-Margaret Kun, Rejecting the Adage Children Should Be Seen and Not Heard – The Mature Minor Doctrine , 16 Pace L. Rev. 423 (1996). Available at http://digitalcommons.pace.edu/plr/vol16/iss2/13.
2. In re Cassandra C. , Supreme Court, State of Connecticut, No. 19426, Jan. 8, 2015.
3. Cardwell v. Bechtol, 724 S.W. 2d 739 (Tenn. 1987)
4. In re E.G., 549 N.E. 2d 322 (Ill. 1990).
5. In re Swan, 569 A. 2d 1202 (Me. 1990).
6. Weir RF and Peters C. Affirming the Decisions Adolescents Make about Life and Death. Hastings Center Report 1997; 27:29-40.
Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu, and currently directs the St. Francis International Center for Healthcare Ethics, also in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at siang@hawaii.edu.
