Can a Minor Consent to Medical Treatment Term Paper

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Minor Consent to Medical Treatment

In order to understand the issue of minors and medical practice, it is necessary to understand the position of minors in general law, and why the minor has been accorded special status and is handicapped in so far as consent is concerned. The original dictum in this regard comes from the common laws of England, which were then adopted and modified in each of the dominions. Thus there are specific rulings regarding minors that stem, not from the medical practice but from other laws such as the contract laws. In all countries the minor is not a person entitled to enter into contracts on his own. Now what implications these can have for a medical necessity? Basically the medial personnel also enter into a contract with the patient where there is a quid pro-quo for the services rendered. Even free services have a contractual assumption.

Minors were prohibited from entering a contract because of the principle that minors are doli incapax or not mentally certain of their offers. The same still applies in contract laws but with some exceptions. The law is applicable universally for minors and insane persons. Both need guardians to execute a contract for them. By law the minor cannot be responsible personally for the contract even for contracts of essentials. We must therefore look into the details of a contract before the problems of the minor in the medical field are attended to. Still the basic laws of offer and acceptance are valid, even in the case of a minor. Anomalies in health care and the changes in the modern society have substantially altered the law. Modern society has various issues that were not observed earlier.

Basic Law:

A minor's acceptance is voidable but not void. There must be an action by the offerees on the contract. It is common law that there must be at least two persons involved in a contract and that the two parties must agree on the same thing in an identical manner. Thus one person makes an offer to do or abstain from doing a thing while the other accepts the offer. On the acceptance of the other party the contract becomes binding subject to other legalities involved. The offeror thus makes a very clear promise or offer. The offer is made to all the public who may chance to know that the medical services are available at a hospital for example. The law requires two or more parties in the contract.

It is not safe to argue that a minor who requires services was not offered the services, but was made to the parents. Offers can be universal as laid down in Carlill v. Carbolic Smoke Ball Company-- Carlill v. Carbolic Smoke Ball Company [1892] [1892] 2 QB 484 EWCA Civ 1. The case was that the Company advertised its Carbolic Smoke Ball as a preventive for influenza and made the statement "£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the influenza after having used the ball three times daily for two weeks according to the printed directions supplied with each ball." (Patha, 2008)

Lord Justice Lindley answered this with the reasoning that all those who perform the conditions of the advertisement have accepted the offer. His Lordship also relied on Williams v. Carwardine 4 B. Ad. 621 which relays the same importance that was set out in this case regarding advertisements offering rewards. The changing times however separated the 'minor and his necessities' to the minor being able to make a valid contract. Now the position is that minors can contract independently for their health needs subject to some restrictions. However the rule generally is that contracts entered into by a minor, say a person under 18 years old is voidable by the minor-even if he has misrepresented his age and on attaining majority he can accept the contract which then is binding on him. Taking the fact that treatment essentially is a contract, this law caused lots of anomalies with treatment of minors who had no guardians, this also was a problem for the minors not cared by any person or those who were 'emancipated' On account of this laws were modified.

Minors and Hospitals: Modern day issues

The laws regarding minors in medical care was modified and redefined both by the legislatures and courts over time. The problem of children who could not or would not allow their guardians or parents to be involved in their complications resulted in the courts and later the senate bringing out laws to help the minors. The 1960s and 1970s were the period when minors and adolescents found freedom to do what they wished and problems related to health care -- unwanted pregnancies, sexually transmitted diseases, and many other concerns developed in which the minor would not involve his or her parents. Added to that, addictions and vices also caused problems. Children who ran away from homes or were out of parental control often were the persons who were minors and who were handicapped on account of their inability to contract. States thus stepped in and legislated allowing the minors to contract in specific cases without a guardian and these included "venereal and contagious diseases, drug abuse, addiction and pregnancy." (Grodin; Glantz, 1994)

These are diseases and issues that have to be attended to in spite of the patient being a minor. The earliest cited case in this regard is Younts V St. Francis Hospital: 1970 where the court laid down what was called the "Mature Minor rule" stated that unless there is an emergency a "physician or surgeon before treating or operating must obtain the consent of the patient, or if the patient is incompetent the consent must be obtained from someone legally authorized to give it for him. A surgical operation on the body of a person is a technical battery or trespass, regardless of its result, unless the person or some authorized person consents to it." (Supreme Court of Kansas, 1970)

The importance of the consent was thus emphasized by the court thus: "The duty of a physician or surgeon to the extreme where he would have to apprise his patient not only of the known risks but also of each infinitesimal, imaginative, or speculative element that would go into making up such risks. This is another hurdle we simply cannot make.... Judging if a seventeen-year-old girl can give her consent to a minor surgical procedure without the knowledge or consent of her parents, in this case, the court relying on Lacey v. Laird, 166 Ohio St. 12, 139 N.E.2d 25, where it was stated that making of a contract obviously involves the consent of each of the contracting parties. Probably because of this and of the law with respect to the capacity of infants to contract, some authorities have indicated that the consent of a minor to performance of a surgical operation will ordinarily not be sufficient in itself to require the conclusion that performance of such operation cannot constitute an assault. Thus operating on a minor with or without his consent and the absence of the parents consent could make it an assault. There was a deviation to this rule when the same court stated that it is apparent however that the consent, which prevents what would otherwise be an assault from being an assault, does not depend upon the capacity of the consenting party to contract. It has nothing to do with contractual capacity." (Supreme Court of Kansas, 1970)

The ruling in Younts V St. Francis Hospital: thus confirmed that consent of a parent may not be necessary or required under circumstances where the child has knowingly consented. The court also stated that such consent is not necessary in an emergency, and where the child has been emancipated, or where it is impracticable to obtain consent. In Younts V St. Francis Hospital, thus the rule was laid that where the minor is of sufficient age and maturity to know and understand the nature and consequences of the consent is an exception and can knowingly consent to the beneficial surgical procedure made necessary by the accident. Following this decision many legislatures passed laws that allowed minors to enter into medical contracts for their treatment. On the contrary when it is necessary the parent may consent and the consent is sufficient where the minor may disagree. In Perkins V Lavin, a Jehova's witness who was a minor refused to consent to treatment which required blood infusion. In the case consent of the parent was found to be sufficient, and the consent of the minor was insignificant. (Pozgar, 2009)

Legislation:

Following a plethora of decisions by the Supreme Courts and the federal Supreme Court, many states have investigated and attempted to change the incapacity of minors to get medical help. For example the changes made to the Louisiana civil changes the definition of contractual capacity: "All persons have capacity to contract, except…

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