Children's Competence to Provide Informed Consent for Mental Health Treatment

Abstract

Controversy continues over whether to allow children unilaterally to consent to mental health treatment or, to refuse treatment and thus override parental wishes. The question involves diverse constitutional analysis of procedural and substantive due process, privacy, and equal protection, as well as societal values regarding the rights, roles, and responsibilities of parents in deciding about treatment for their children.

While society, as reflected through our laws, has generally viewed children as incapable of mature, adult-like decision-making, recent empirical research suggests that even children as young as eleven are able to provide informed consent for treatment and participate meaningfully in treatment decision-making. Allowing children to provide informed consent for mental health treatment is particularly important because of the potentially significant liberty and privacy interests involved, the potentially significant impact of treatment upon future life choices, and the treatment-enhancing effects of allowing children to participate in treatment decision-making. Giving children a voice in deciding treatment options is particularly important in the mental health context because parents do not always act in the child's best interests.

The purposes of this article are (1) to suggest a new view about the competence of children to provide consent for mental health treatment; (2) to propose needed legal reform by way of a statutory scheme; and (3) to suggest practical approaches for informing children and determining a child's capacity to provide informed consent. The paper presents proposals for new legal definitions of competence and standards for informed consent when minors are involved. A new statutory scheme is also proposed, based upon empirical research on children's competence, which presents different standards according to the type of mental health treatment at issue: civil commitment, outpatient psychopharmacological treatment, or outpatient psychotherapy. The framework is designed to help ensure children's due process rights by giving them a voice in their own treatment planning to the greatest extent possible. No statutory scheme has yet been developed or proposed that provides children an opportunity to consent to mental health treatment commensurate with their capacity.

Keywords: children, informed consent, mental health, treatment