Decision-Making Authority and Substance Abuse Treatment for Adolescents: A Survey of State Laws

Article Outline

• Abstract
• Methods
• Results
• Discussion
• Conclusion
• Acknowledgments
• References
• Copyright

Abstract 

Purpose

State laws concerning decision-making authority for voluntary inpatient substance abuse (SA) treatment of minors may be a potential barrier to appropriate treatment. We sought to identify and classify relevant laws related to the provision of voluntary inpatient SA treatment to adolescents 12 to 17 years (minors) as an exploratory assessment to improve understanding of how these laws might affect treatment decisions.

Methods

In summer 2006, we conducted a survey of statutes, regulations, and legal cases in the 50 states and the District of Columbia regarding the authority of parents (or guardians) and minors to make treatment decisions for voluntary inpatient SA treatment.

Results

All 50 states have laws applicable to voluntary inpatient SA treatment for adolescents, and the laws vary significantly throughout the nation. If a minor and parent disagree about SA treatment, some states defer to the decision-making authority of the minor, whereas other states defer to the parent. Most significantly, the majority of states fail to specify whether the minor's or the parent's decision will control in the event of a conflict.

Conclusions

The lack of clarity in state laws regarding decision-making authority for voluntary inpatient SA treatment of minors may create a potential barrier to treatment for adolescents, especially those with more serious SA problems. This lack of clarity could lead to confusion among parents, adolescents, healthcare professionals, and treatment facilities, and ultimately could result in a failure to treat adolescents in need of medical attention. Policymakers should ensure that state laws clearly specify procedures to enable treatment if a conflict arises between adolescents and parents, including procedures to ensure that the due process rights of adolescents are protected.

Keywords: Adolescent health, Substance abuse, Substance abuse treatment, Informed consent

State laws concerning decision-making authority and informed consent are poorly understood potential barriers for many types of medical treatment for adolescents, including substance abuse (SA) treatment. The legal term “informed consent” refers to the ability of an individual to fully understand and make an educated decision regarding medical treatment [1]. Typically, an individual must be 18 years of age to provide legal “informed consent.” Some states have carved out exceptions to allow minors (under 18 years) to participate in decision making or alternatively provide informed consent for certain types of treatment. For example, minor consent alone is typically sufficient for sexually transmitted diseases and prenatal care [2]. Laws allowing minors to provide informed consent and make medical decisions typically have been created to promote minors’ utilization of appropriate treatment. Nonetheless, for SA, the opposite outcome may have resulted in some cases. In 2000, 11.4% of adolescents admitted to inpatient treatment with a drug-dependence diagnosis left against medical advice [3]. It is possible that a portion of adolescents leaving against medical advice were enabled by state laws permitting minors to make treatment decisions regardless of physician judgment or parental wishes; or by state laws that do not clarify respective decision-making roles of parents, physicians, and minors for substance abuse treatment. Additionally, we do not know the extent to which minors may avoid treatment completely because of these laws.

At present, virtually no information regarding potential legal-related barriers to adolescent SA treatment exists in the peer-reviewed literature. Although some research exists regarding the minor's authority to make decisions in other health areas, in particular reproductive care [4] and mental health treatment [1], a comprehensive review of the laws specifically designed to address decision making for voluntary inpatient SA treatment of minors is lacking. The SA specific laws attempt to address minor consent issues while balancing parent and guardian rights and responsibilities, but often are complex and fail to adequately deal with privacy concerns, public policy, and public health goals [5]. Our study examined the laws of the 50 states and the District of Columbia concerning decision-making authority for voluntary inpatient SA treatment of adolescents to clarify the existing legal environment. State laws approach the issue in diverse ways, and in many cases, there is a surprising lack of clarity in situations where the parent and child do not share the same treatment goals. SA treatment laws for minors must be understood before the implementation and other effects of the laws can later be studied. Our intent in undertaking this exploratory study was to provide a foundation for future research on the extent and impact of family conflict and whether this conflict creates potential barriers to SA treatment.

National survey data document SA as an important health problem for adolescents and show disturbing gaps in and barriers to SA treatment. The annual National Survey on Drug Use and Health (NSDUH) provides the most reliable data on SA prevalence. The 2007 NSDUH showed 5.5% of youths aged 12 to 17 needed treatment for alcohol use and 4.5% for illicit drug use [6]. Of those youths classified as needing treatment for alcohol use, only 5.9% received specialty SA treatment [6]. Of the youths needing treatment for illicit drug use, only 9.9% received specialized SA treatment [6]. There is tremendous variation among treatment gaps in the states (the difference between percentage of a defined population group needing treatment and percentage receiving treatment in a given year), yet we do not know how state laws may affect the treatment gap [7].

The limited evaluation literature on adolescent SA treatment, consisting primarily of nonrandomized studies, has generally produced positive findings. Studies have found reductions in drug use [8], [9], [10], [11], [12], [13], decreased criminal activity [9], [10], [13], [14], [15], and improved school and psychological functioning [10], [11], [12], [13] associated with adolescent SA treatment. Drop out from treatment has proven to be a frequent problem for both adult and adolescent SA treatment [16], [17], [18]. At the same time, research has consistently shown length of stay or treatment completion to be associated with better treatment outcomes [10], [11], [19]. Thus, finding more effective approaches to encourage substance abusing adolescents to participate in SA treatment and remain in treatment becomes an important clinical and policy issue. Although outpatient SA treatment is the most common modality of treatment, inpatient SA treatment is important to study as it affects those with more severe SA problems.

The failure of adolescents to acknowledge they have an SA problem is a significant barrier to treatment, and we have yet to understand how laws may affect adolescent use or nonuse of treatment. According to recent (2003–2004) NSDUH data, over 85% of youths aged 12 to 17, who were classified as needing SA treatment, did not receive treatment and did not perceive a need for treatment [20]. Adolescents who abuse drugs or alcohol or who may be dependent on these substances often have poor judgment and have little awareness of the health and safety risks their behavior poses to themselves or others [21], [22], [23]. Early onset of substance use is associated with suicide ideation, and the association for suicide behaviors is especially strong for hard drug use among adolescent boys [21]. Substance use in adolescence is also associated with violent and physically risky behaviors [22] as well as risky sexual behaviors [23]. When adolescents fail to seek out SA treatment or refuse SA treatment initiated by a parent, despite clear and compelling need, informed consent and decision-making authority become important legal and medical issues. This paper seeks to provide treatment facilities, healthcare providers, parents, adolescents, and policy makers with an understanding of the legal landscape of state laws regarding voluntary inpatient SA treatment for minors.

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Methods 

In summer 2006, we used standard legal research methodology to conduct a survey of the statutes, regulations, and legal cases of the 50 states and the District of Columbia regarding decision-making authority for voluntary SA inpatient treatment of minors. State statutes, regulations, and legal cases were accessed using online legal databases, including LexisNexis and Westlaw. Searches were run on LexisNexis and Westlaw utilizing keywords that were likely to reveal relevant laws, regulations, and legal cases (minor, consent, substance abuse, treatment) LexisNexis and Westlaw were further utilized to systematically review all relevant sections of the legal codes and regulations dealing with substance abuse treatment, mental health treatment, commitment procedures, and medical treatment of minors. Accuracy of searches conducted in online legal databases was verified by checking results against annotated state statutory compilations.

Upon survey completion, we analyzed the laws for common themes and categorized the statutes as described in Table 1, Table 2, Table 3. We then grouped states according to criteria related to parental and minor decision making authority (see criteria in notes to Table 3). Our analysis provided the basis for the categorization used in Table 1, Table 2, Table 3, which revealed a common approach of states to enact laws describing how a parent may:

Table 1. Parental and minor decision making authority for voluntary inpatient substance abuse (SA) treatment

Table 2. Classification of state laws pertaining to parental and minor decision making authority regarding admission to, holding in, and discharge from substance abuse (SA) treatment

Table 3. States laws favoring parent versus minor substance abuse (SA) treatment decision making authority

State laws will also commonly describe the circumstances in which a minor may:

All statutes, regulations, and legal cases were included in the analysis if they addressed authority of the parent or minor to make treatment decisions for voluntary inpatient treatment specific to SA. “General minor consent” laws describe the circumstances in which a minor can consent to unspecified types of medical treatment. These laws serve as the default way a minor may obtain treatment for SA if no specific SA law exists. The survey thus only included general minor consent laws if no SA-specific law existed, that is, where no state law addressed parental authority to apply for or consent to SA treatment, and no state law addressed the minor's ability to apply for or consent to SA treatment. Our study focuses on laws specifically relating to voluntary inpatient SA treatment, not court-ordered treatment. Reviewing legal procedures for outpatient treatment, court ordered emergency commitments, civil commitments, involuntary commitments, treatment of children in juvenile detention facilities, emancipated minors, married minors, the mature minor doctrine, wards of the state, and emergency treatment was beyond the scope of this study. Other state laws may impact parental and minor decision making authority for SA, such as laws regarding inpatient mental health treatment, patient confidentiality, or states that allow “mature minors” to consent to medical treatment. Examination of those other laws was also beyond the scope of this study.

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Results 

Our survey found that 47 states and the District of Columbia have laws specifically addressing some aspect (admission procedures, holding a minor in treatment, or discharge procedures) of decision-making authority for voluntary inpatient SA treatment for minors (Table 1). Of the three states without a law specifically addressing voluntary inpatient SA treatment for minors, Alaska, Arkansas, and South Carolina have a “general minor consent” law that would apply to SA treatment. By age 18, everyone is legally considered an adult for purposes of medical decision making in all states except for Nebraska, which sets the age at 19. Our study also revealed one significant Supreme Court case, Parham v. J.R. et al, that affects decision-making authority in all states, as well as one case affecting the First District of Florida, which are discussed below.

States take diverse approaches to SA treatment decisions for minors. As indicated in Table 1, it is rare for states to address each procedural aspect of SA treatment decisions (admitting, holding, discharging) for both the parent and the minor, but many states address some combination of these procedures. The age at which a minor is granted decision-making authority for SA treatment varies widely. Some states do not specify a minor's age, whereas others grant decision-making authority to children as young as 12 years old.

There is great variability in state laws regarding parental applications for admission and consent to voluntary inpatient SA treatment of minor children. Table 2 indicates that seven states allow a parent to apply for or consent to voluntary inpatient SA treatment when the minor does not consent to treatment: California, Georgia, Michigan, Minnesota, Oklahoma, Washington, and Wisconsin. Twenty-three states permit a parent to apply for or consent to voluntary inpatient SA treatment for a minor child, but these laws do not specify the appropriate outcome when the minor does not consent to treatment. Twenty-one states and the District of Columbia do not have a law addressing procedures for the parent to apply for or consent to voluntary inpatient SA treatment for minors.

Our research further indicates that states differ in how minors can obtain treatment themselves (Table 2). Twenty states specify the procedures in which a minor may apply to and/or consent to voluntary inpatient SA treatment. Twenty-two states and the District of Columbia have laws permitting a minor to apply for and/or consent to SA treatment, but do not have provisions distinguishing between outpatient and inpatient treatment. Only five states have laws describing procedures for a parent to hold a minor in treatment where the minor revokes consent or requests discharge upon entering treatment.

Many states specify discharge procedures only in limited situations (Table 2). Only 16 states specifically describe procedures that allow a parent to discharge a minor child from inpatient SA treatment. Eight states permit a minor to discharge him- or herself if the minor was the original applicant to the inpatient treatment facility. Five states allow a minor to discharge him- or herself from inpatient SA treatment notwithstanding a parent's desire to keep the minor in treatment.

To aid in understanding the complex legal environment surrounding adolescent SA treatment and to further characterize the information provided in Table 1, Table 2, we constructed a summary classification scheme for parental and minor decision making authority. Table 3 indicates where the 50 states and the District of Columbia fall on the continuum of laws applicable to voluntary inpatient SA treatment of nonconsenting minors. On one end of the spectrum are state laws that support a parent's decision making authority regardless of the minor's wishes (column 1), and on the other end are state laws that support the minor's decision-making authority regardless of parental wishes (column 4). The states in the middle of the spectrum do not specify procedures where there is a conflict between a parent and nonconsenting child (columns 2 and 3). As further discussed below, the majority of states in Table 3 fall into the categories described in columns 2 and 3—meaning that legal ambiguity is likely a pervasive problem in decision-making authority when a conflict exists between the parent and child for SA treatment.

Nine states (Table 3, column 1) defer to a parent's decision to keep a child in treatment—meaning that the parent may admit to treatment, hold in treatment, and/or prevent a minor from being discharged from treatment if the minor withdraws consent or requests release from the facility. Ten states (Table 3, column 2) favor the parent's decision-making authority through a specific SA law or default to common law requiring parental decision making in the medical treatment of minors, but do not specify how to resolve conflicts between a parent and nonconsenting minor. Twenty-three states and the District of Columbia (Table 3, column 3) permit minors to make treatment decisions, but do not address what happens if the minor does not specifically consent to treatment. Seven states (Table 3, column 4), favor minors’ rights to make treatment decisions, meaning that the minor will not be admitted to treatment without the minor's consent, or the minor may discharge him- or herself from treatment without parental permission.

Even if states appear to favor parental authority to make treatment decisions for a nonconsenting minor in the area of inpatient SA treatment, the minor may still maintain some decision-making authority. For example, Minnesota has a law permitting a parent to admit a nonconsenting minor into inpatient SA treatment; yet the minor may still request discharge and will be released from treatment unless a court commitment process is initiated. States that clearly specify procedures for parents to admit and discharge their minor child from inpatient SA treatment often omit procedures dealing with nonconsenting minors. For example, in Rhode Island, the parent must consent for the minor to be admitted into treatment, but state law does not address what happens if the minor does not consent to treatment.

States that fail to address what happens when the minor seeks to leave or avoid admission to treatment present greater legal uncertainties. In Massachusetts, the law does not explicitly address the parental right to admit a minor into treatment or hold a minor in treatment. The Massachusetts law allows a parent to discharge a child from treatment for alcoholism, but does not specify that a parent may discharge a child in treatment for illicit drug use. At the same time, Massachusetts permits minors aged 12 or older to consent to SA treatment. It is unclear where the state's priorities lie regarding who can make treatment decisions for a minor—should the minor 12 or older who is permitted to consent to treatment without parental notification or intervention also be able to refuse treatment despite parental objection?

Some states make it clear that the child's decision regarding inpatient SA treatment will be honored even when it conflicts with the parent's preferences. For example, West Virginia requires the parent to apply for inpatient SA treatment on behalf of the child, but admission is conditioned on the consent of the minor if he or she is 12 years or older. A minor who is at least 12 years old may also be discharged from treatment upon his or her request, regardless of a parent's desire to keep the child in treatment. Release of the minor may only be prevented by involuntary commitment.

Our case law review revealed that all states and the District of Columbia are also required by a 1979 U.S. Supreme Court ruling, Parham v. J.R. et al, to follow legal due process provisions [24] regardless of whether such processes are described in state laws. Due process requirements prevent a parent from admitting or holding a nonconsenting minor in all types of inpatient treatment where the treatment is not medically required. The Parham decision arose when a parent sought to keep a child in mental health treatment, but the child did not want to be held in an inpatient facility, and such treatment was not medically necessary. Under Parham, if a child does not consent to treatment, a “neutral factfinder” must determine that the minor meets the medical standards for admission before the child will be admitted. Parham further requires that the child's continued treatment is periodically reviewed by a similar independent procedure. Despite the fact that most of the relevant SA laws included in our survey were enacted or revised after the Parham decision, few states incorporate the procedures required by Parham into their statutes.

Our survey also revealed a 1986 Florida district court case that addressed whether a state law permitting a minor to consent to substance abuse treatment would also preclude a parent from placing their minor child in an SA treatment program without the child's consent or judicial review. Department of Health and Rehabilitative Services v. Straight, Inc. held that allowing the minor to consent to SA treatment does not “prevent a parent from placing a minor child with a state licensed drug treatment facility or program without the consent of the child and without judicial review” [25]. Although this case is enlightening regarding parental decision-making authority when state law permits minors to consent to SA treatment, this decision only applies to the First District in Florida. Thus, for most of Florida and many other states, the legal issue of who has decision-making authority if a state law permits a minor to consent to treatment is not specified.

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Discussion 

The laws on decision-making authority for voluntary inpatient SA treatment of minors often fail to address potentially competing interests between children and parents. When this occurs, potential barriers to SA treatment may arise. On the one hand, providing minors with decision-making authority helps to ensure that a substance abusing adolescent will be receptive to treatment and empowered to obtain it if the need is perceived. Providing minors with decision-making authority also ensures that a parent is not overreacting or choosing a mode of treatment for the adolescent that is overly restrictive or clinically inappropriate for the problem. Conversely, laws that support parental decision making represent parental interests in ensuring that a drug or alcohol-abusing child receives treatment, even when the child may not perceive the risks of such behavior. What these laws often fail to reconcile, however, is how to proceed should a conflict over treatment decisions emerge between parent and child. The health and safety risks associated with adolescent substance abuse are compelling, and support the legal rationale to provide parents with decision making authority over their substance abusing child [22].

Laws that do not designate a decision maker in the event of conflict between a parent and a nonconsenting adolescent concerning admission to or discharge from treatment may potentially lead to confusion in medical practice (Table 3, columns 2 and 3). Future studies need to be conducted to determine what effect this confusion may have and whether it constitutes a barrier to SA treatment that policymakers need to address. Providers may rightly be confused about how to proceed when a parent and minor child have conflicting opinions regarding treatment. Facilities may defer to the child's treatment decision out of fear of legal liability for violating due process rights of the minor or other civil liabilities. With such confusion, treatment facilities may allow adolescents to be discharged despite the fact they still may need treatment. Given the consistent research findings showing therapeutic benefit from treatment retention [10], [12], [15], the decision by the client to leave treatment early could have important adverse effects on outcomes. As noted by Hser et al, “. . . strategies specific to adolescents are needed to improve retention and completion of drug treatment by adolescent patients in order to maximize therapeutic benefits” [10]. Untreated addictions put minors at risk for a variety of health, social and legal problems. Use of multiple substances by minors increases the risk of becoming adult drug users and increases the likelihood that the minor will have contact with police or juvenile authorities [26]. Without clear laws regarding parental decision-making authority, any conflict with the minor could reduce the odds the adolescent will obtain treatment in a timely manner or complete the full continuum of treatment.

Although these data might point to a need to strengthen parental authority to make treatment decisions for a child, such a decision could potentially be at odds with the authority the minor has to make their own treatment decisions. Significant legal protections, however, already exist to protect minors from inappropriate treatment. The landmark U.S. Supreme Court decision in Parham requires due process protections for a minor, thereby preventing parents from abusing their traditional medical decision making role for their children. Still, practical implementation of Parham's requirements requires attention at the policymaking level to avoid confusion. In fact, few states articulate in statute or regulation the review criteria required by the Supreme Court if a conflict regarding treatment decisions emerges between parent and child. Many state laws only address the parent's ability to obtain SA treatment for the minor, and the minor's legal ability to make SA treatment decisions. This leaves the interested parties—the parent, adolescent, healthcare professional, and the treatment facility—without a clear, legally specified understanding of the procedures that must be followed in the event there is a conflict regarding the most appropriate treatment decision. One state stands out as a notable exception to the legal ambiguity discussed in this paper. Utah's law spells out the respective rights of parents and minors in regard to decision making involving SA treatment and compliance with Parham's due process requirements.

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Conclusion 

Many adolescents with serious substance abuse problems or addiction need inpatient SA treatment. Substance-abusing children rarely perceive the need for treatment, making for a situation ripe for conflict to occur if the parent seeks help. This lack clarity in state laws of how to proceed in the event of a conflict may lead to confusion among parents, adolescents, healthcare professionals, and treatment facilities, and ultimately a failure to treat adolescents in need of medical attention. This exploratory study should provide a foundation for future studies that can examine whether and how state laws may serve as a barrier to adolescent SA treatment. More research is also needed to better understand family conflict in regard to SA treatment and how adolescents function within more or less permissive states granting them decision-making authority.

At a minimum we believe policymakers should ensure that state laws clearly specify procedures for resolving conflicts in treatment decisions between adolescents and parents, including procedures to ensure the due process rights of adolescents are protected. Given the obstacles faced by adolescents with SA problems in making appropriate treatment decisions, we also believe that SA laws should provide parents with the ability to obtain adequate treatment for a minor needing SA treatment, while affording the minor clear due process rights and protections in compliance with the Parham decision if a conflict exists.

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Acknowledgments 

This article was supported by Science and Management of Addictions Foundation, Seattle, WA.

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