'The Trouble is They're Growing, the Trouble is They're Grown': Therapeutic Jurisprudence and Adolescents' Participation in Mental Health Care Decisions, Symposium on the Law of Mental Health

Abstract

This article explores the individual and family interests and values involved in (1) identifying the need for mental health evaluation of an adolescent and (2) giving or withholding consent to mental health care for an adolescent. Both decisions involve individual and family beliefs about mental illness, personal and family privacy, and individual self-control and responsibility. What if the adolescent has a mental health problem which the family identifies but the adolescent denies? What if the adolescent identifies her problem as one of mental health, but the family sees it as a moral or character deficiency? Frequently, the adolescent's "conduct" triggers an initial mental health inquiry. But the adolescent and family members disagree as to whether mental illness causes or contributes to the conduct, or whether mental health treatment is necessary. When there is such a conflict, how can or should it be resolved?

Using two hypothetical cases, this article explores the strengths and weaknesses of existing law under which parents generally have power to give or withhold consent to mental health care for their children. This power has, in recent years, been limited by statutes and case law establishing due process rights for minors hospitalized against their will, "medical emancipation" laws enabling adolescents to consent to some types of mental health care, and state child abuse and neglect laws requiring parents to provide necessary mental health care. The article next draws on the emerging field of therapeutic jurisprudence, and concludes that existing law in some respects is counter-therapeutic. It does not assist the teen to accomplish these essential therapeutic tasks: (1) achieving an accurate understanding of his or her mental illness, learning disability or other problems; (2) understanding the range of available inpatient and outpatient treatment modalities and services and their risks and benefits; (3) learning how to maintain stability at home and in the community by using the appropriate treatment and services; and (4) maximizing his or her opportunities for the most constructive and satisfying life possible in the least restrictive available setting, during adolescence and adulthood. The article concludes with suggested changes in law that would assist an adolescent to better understand his or her mental disability, to choose among treatment approaches and service options, and to make the transition to adulthood.