WHT Law

Minor Consent Issues – Illinois only

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Minor Consent Issues

MEDICAL CONSENT PROVISIONS

I.  The parent generally has the right and duty to make decisions concerning medical care for his/her child.

A. However, the minor may consent:

1. When she is pregnant, she may consent to her own medical care and surgery, 410 ILCS 210/1;

2. When (s)he is married, the minor may consent to his/her own medical care and surgery, 410 ILCS 210/1;

3. When (s)he is a parent, the minor may consent to the medical care, surgery, or dental care for his/her child, 410 ILCS 210/2.

4. When (s)he is 12 years of age or older, the minor may consent to his/her treatment of venereal disease or for abuse of alcohol or narcotic drugs, 410 ILCS 210/4.

5. When (s)he is the victim of a criminal sexual assault or abuse, the minor may consent to his/her medical care  and/or counseling.  410 ILCS 210/3.

6. When she is pregnant, she may consent to an abortion if considered mature enough to make that decision or if she can show it is in her best interest.  Bellotti v. Baird, 443 U.S. 662, 99 S. Ct. 3035, 61 L. Ed. 2nd 797, (1979).

B. Physicians may consent to and render emergency medical care to a child when a parent is not available during the emergency and it is the judgment of the physician that there is not additional time to await the parent’s involvement.  Ill. Rev. Stat., Ch. 111, section 4503.

C. Dentists may consent to and render emergency dental care to a child when a parent is not available during the emergency and it is the judgment of the dentist that there is not additional time to wait the parent’s involvement.  Ill. Rev. Stat., Ch. 111, section 4503.

II.  The courts can and will intervene in a parent’s decision which places a child in danger or leaves a child in danger of death or permanent harm.  Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645, (1944) rehearing denied, 321 U.S. 804, 64 S. Ct. 784, (1944) [a case concerning child labor].

III. A parent’s denial of medical treatment necessary to save a child’s life is neglect pursuant to the Juvenile Court.  Intent to neglect is not a factor Wallace v. Labrenz, 411 Ill. 618, 104 N.E. 2d 769 (1952), cert. denied 344 U.S. 824, 73 S. Ct. 24, 97 L. Ed. 2nd 642 (1952).

IV.  CONSENT TO TREATMENT/RIGHT TO REFUSE

A.  GENERAL RULE

In Illinois the rights of a recipient of services to refuse generally accepted mental health or developmental disabilities services including, but not limited to, medication are set forth in sections 2-107 and 3-608 of the Illinois Mental Health Code.

The right to refuse electro-convulsive therapy and any “unusual, hazardous or experimental services or psychosurgery” is set forth in section 2-110 of the Code and requires written and informed consent.

Under section 2-107, a recipient’s guardian also has the right to refuse.  The guardian may only consent with the approval of the court for such services as he or she deems to be in the best interests of the ward.  ILL. REV. STAT. Chapter 91 1/2, section 2-110.

Informed consent requires the physician to describe the proposed  treatment, indicate alternatives, describe risks and possible complications.  It also requires knowing and voluntary consent on the part of the patient.

Both the notions of informed consent and the right to refuse treatment are based on the constitutionally recognized right to privacy.

B.  EXCEPTIONS

1. Qualified Right:  The patient’s right to refuse is not absolute but rather qualified, so that services may be given without consent when it is necessary to prevent that patient from causing serious harm to himself or others.

A 1976 report of the Governor’s Commission for Revision of the Mental Health Code of Illinois indicated that where a mentally disabled person poses a threat to himself or others, the interest of the state becomes more compelling than the patient’s right to refuse treatment.  Thus, medication and other treatment or habilitation which is necessary to arrest behavior may be administered over the recipient’s objection.

2. Minors:  Under the Illinois law, minors 12 and older may receive outpatient counseling without the consent of their parents, up to five visits of 45 minutes each.

In addition, there are a few notable exceptions to the general rule that parents are responsible for consenting to the medical treatment of their minor children.  In Illinois, minor girls of any age may obtain abortions, minors 12 or older may consent to treatment for venereal disease or drug abuse, and minors of any age may obtain birth control.

3. Emergencies:  Section 2-111 of the Illinois Mental Health Code provides for the administration of medical procedures without consent where the delay in obtaining consent would endanger the life or adversely and substantially affect the health of a recipient of services.

4. Incompetency:  The right to refuse treatment may be exercised by incompetent persons through their guardians.  ILL. REV. STAT. Chapter 91 1/2, sections 2-107 and 2-110.  Provisions for overriding the refusal or failure to consent in the case of an incompetent are not specifically spelled out in the statute; the guardianship procedure is an important means for obtaining treatment objected to on a basis reflecting incapacity to make a treatment decision.

The Code provides in sections 2-100 and 2-101 that questions of competency and commitment are separate and, following commitment, all rights are unaffected. Accordingly, the commitment procedure reflects only tangentially on a recipient’s capacity to make treatment decisions, with the strongest correlation being found in section 1-119(2) where admission is based on a person’s inability to care for himself.

V.  ILLINOIS PUBLIC ACT 87-460: CONSENT BY MINORS TO MEDICAL PROCEDURES ACT AMENDMENTS

Illinois Public Act 87-460 amends two sections of the Consent by Minors to Medical Procedures Act, 410 ILCS 210 et. seq. (1992) (formerly Ill. Rev. Stat., ch. 111, para. 4500 et. seq. (1991)).  The effect of this Act is to remove exceptions to the general provision that notice need not be provided to a parent when a minor who is 12 or older is receiving treatment for drug or alcohol abuse.

Section 4 of the amended Act now allows a minor who is 12 years old or older to consent to medical treatment for drug or alcohol abuse for himself or a member of the child’s family.  But more importantly, the amended Act no longer requires a person who furnishes such treatment to notify the parent or guardian upon the second occasion in which the minor is receiving such treatment.

Section 5 of the amended Act now sets forth explicit rules for counselors and physicians who give notice to the parent or guardian of the minor receiving treatment.  Under the new Act, a physician or counselor is explicitly barred from providing notice to a parent or guardian without the minor’s consent, unless the purpose is to protect the safety of the minor, another family member, or another individual.  This rule is enhanced by an amendment to the section which removes the requirement that a physician or counselor must notify the parent or guardian upon the second such treatment of the minor.

The overall effect of these amendments is to accord greater deference to the minor’s decision to receive treatment for drug and alcohol abuse.  Furthermore, it eliminates the possible interference of a parent or guardian who seeks to bar such treatment.