- Informed consent to medical treatment is a foundation of ethical medical practice today, giving adult patients and parents of minor children the right to make voluntary decisions based on full disclosure of the benefits and risks involved in a proposed medical intervention.
- Historically, medical intervention for children (usually defined as those under age 18) has been the province of their responsible parent or legal guardian.
- A new bill has been introduced in New York proposing that children as young as 14 years old be given the legal right to make vaccination decisions for themselves without parental consent.
Since the 1950s, the right to exercise informed consent to medical treatment has been a broadly supported legal right in the fields of medicine, nursing, ethics and law.1 “The doctrine is a simple one—an adult has the right to give informed consent for treatment after receiving all pertinent information about benefits and risks needed to make an informed choice.”2
Under the law, parents or legal guardians of minor children—most commonly defined as those under age 18—are given the legal authority to exercise informed consent to medical risk taking on behalf of a child. As explained on the website FindLaw, “Because children are still developing, both physically and mentally, they aren’t considered capable of handling the same rights as mature adults. For instance, children don’t have the right to vote, own property, consent to medical treatment [such as vaccination], sue or be sued, or enter into certain types of contracts.”3
Traditionally, exclusions to the rule were put in place to allow treatment of minors without parental consent in specific instances, as in the case of a seriously injured minor seen in an emergency room when a parent or legal guardian is not available and a delay would put the minor child at risk. While states have broad authority to interpret regulations, general U.S. regulatory guidelines include exceptions for obtaining parental informed consent for minor children for the following:4
- Married minor;
- Pregnant minor (for herself and the fetus; after the birth, the young mother retains the right to consent to treatment for the infant but only retains authority for her own medical consent if she falls into one of the other categories for exception);
- Minors over a specific age, by state, for sexually transmitted disease or HIV;
- Testing, AIDS treatment and substance use disorder treatment;
- Emancipated and mature minors, as defined by state law;
- Minors seeking birth control services, as provided by state law;
- Minors seeking outpatient mental health services or inpatient voluntary admissions to a psychiatric facility. Some states call for notification of the parent or legal guardian, but do not require consent;
- Any emergent medical condition where delaying treatment for the purposes of obtaining consent would result in injury or death of the minor.
Some states have expanded the rights of children to make informed consent for medical treatment if certain other conditions apply as well. According to the non-profit organization SchoolHouse Connection, informed consent by a minor may be applied if the child “is living separate and apart from his parent or legal guardian, and is managing his own financial affairs.”5
In some cases, the only requirement is that a physician deems the child mature enough to understand the benefits and risks of a proposed medical treatment. SchoolHouse Connection notes that Idaho’s code, for example, states that, “Any person of ordinary intelligence and awareness sufficient for him or her generally to comprehend the need for, the nature of and the significant risks ordinarily inherent in, any contemplated hospital, medical, dental or surgical care, treatment or procedure is competent to consent thereto on his or her own behalf.”6
According to a study published in the journal Pediatrics in 2013, this “mature minor doctrine,” can present a legal and ethical dilemma to the treating physician. Somewhat of a grey area, it outlines certain other “status-based and condition-based exceptions” aside from more long-standing minor rights (with federal guidelines) in fields such as abortion, access to contraceptives, and treatments for mental illness, sexually transmitted diseases or substance abuse.7
Informed Consent and Vaccination
As it applies to vaccination, several states already use the “mature minor” doctrine to give minors the right to make vaccines decisions and other decisions about medical interventions without parental knowledge or consent.
So far, the rights of minors to seek and receive vaccination varies from state to state.8 For example, the State of Washington has been using the recent outbreak of measles to invoke the mature minor policy. Similar laws are in place in Alaska, Arkansas, Alaska, Arkansas, Delaware, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Montana, Nevada, Oregon, Pennsylvania, South Carolina, Tennessee and West Virginia.9
Expanding that slippery slope, a new bill has been introduced in New York that would permit minors 14 years of age and older to be vaccinated without parental permission.10 Using the 215 cases of measles reported in New York this past winter as a justifiable cause, State Senator Liz Krueger and Assemblywoman Patricia Fahy have introduced bill S. 4244/A. 6564 proposing to allow children older than age 13 to ask for and receive any of the vaccines in the Public Health Law, which would include poliomyelitis, mumps, measles, diphtheria, rubella, varicella, Haemophilus influenzae type b (Hib), pertussis, tetanus, pneumococcal disease, meningococcal disease and hepatitis B.11
The bill’s supporters also argue that the bill would provide greater flexibility for minor children in high school or college, since so many schools do not admit unvaccinated students.
Risks Associated With Measles Vaccination
While acknowledging that measles is very rarely fatal, the bill rationalizes stripping parents of the right to make vaccination decisions for their minor children by citing an increased risk of complications from vaccines and infectious diseases for those with leukemia or otherwise compromised immune function. What is not discussed is the very real risk of a serious adverse reaction to the vaccine.
Measles vaccination is not available as a single vaccine but is only given in combination with mumps and rubella (MMR) and sometimes with varicella (chickenpox) as well (MMR-V). Although public health officials consider serious MMR vaccine reactions to be “rare,” reactions reported for both combination vaccines have included brain damage, coma, chronic seizure disorder, lowered level of consciousness and loss of hearing.12 As reported by Merck in the measles, mumps and rubella virus vaccine, live (MMRII) product insert, post-marketing surveillance data disclosed the potential for other serious complications13 14:
- brain inflammation (encephalitis) and encephalopathy (chronic brain dysfunction);
- panniculitis (inflammation of the fat layer under the skin);
- atypical measles;
- syncope (sudden loss of consciousness, fainting);
- vasculitis (inflammation of the blood vessels);
- pancreatitis (inflammation of the pancreas);
- diabetes mellitus;
- thrombocytopenia purpura (blood disorder);
- Henoch-Schönlein purpura (inflammation and bleeding in the small blood vessels);
- acute hemorrhagic edema of infancy (rare vasculitis of the skin’s small vessels occurring in infants);
- leukocytosis (high white blood cell count);
- anaphylaxis (shock);
- bronchial spasms;
- pneumonitis(inflammation of the lung tissues);
- arthritis and arthralgia (joint pain);
- myalgia (muscle pain);
- polyneuritis (inflammation of several nerves simultaneously);
- measles inclusion body encephalitis (disease affecting the brain of immunocompromised persons);
- subacute sclerosing panencephalitis (fatal progressive brain disorder caused by exposure to the measles virus);
- Guillain-Barre Syndrome (GBS)(disease where the body’s immune system attacks the nerves);
- acute disseminated encephalomyelitis (ADEM) (brief widespread inflammation of the nerve’s protective covering);
- transverse myelitis (inflammation of the spinal cord);
- aseptic meningitis;
- erythema multiforme (skin disorder from an allergic reaction or infection);
- urticarial rash (hives, itching from an allergic reaction);
- measles-like rash;
- Stevens-Johnson syndrome (severe reaction causing the skin and mucous membranes to blister, die, and shed);
- nerve deafness (hearing loss from damage to the inner ear);
- otitis media (ear infection);
- retinitis (inflammation of the retina of the eye);
- optic neuritis (inflammation of the optic nerve);
- conjunctivitis (pink eye);
- ocular palsies (dysfunction of the ocular nerve);
- epididymitis (inflammation of the epididymis);
- paresthesia (burning or prickling of the skin);
Right now, proponents of the New York bill to allow minors to get vaccinated without parental knowledge or consent are focusing on teenage children. What is not known is whether this precedent will set the stage for lowering the age of consent even further in the future.
1 Murray PM. The History Of Informed Consent. Iowa Orthop J 1990
2 Brent, MJ. Informed Consent for Minors Is a Big Issue in the ED. Nurse.com Sept. 6, 2018.
3 What are the Legal Rights of Children? FindLaw.com 2019.
4 See Footnote 2.
5 State Laws on Minor Consent for Routine Medical Care. SchoolHouseConnection.org Aug. 14, 2018.
7 Coleman DL, Rosoff PM. The Legal Authority of Mature Minors to Consent to General Medical Treatment. Pediatrics April 2003; 131(4).
9 Brister M. In Which States Can Minors Get Vaccinated Without Parental Consent? Quora: Medicine and Healthcare Feb. 12, 2019.
10 National Vaccine Information Center. Welcome to the NVIC Advocacy Portal. NVICAdvocacy.org.
11 Gormley J. With Measles Cases Surging, Bill Allows Minors To Get Vaccinated Without Parental Consent. The Legislative Gazette Mar. 19, 2019.
12 NVIC. Can Measles Vaccine Cause Injury & Death? NVIC.org.
13 Food and Drug Administration. Measles, Mumps and Rubella Virus Vaccine, Live FDA.gov Feb. 2, 2018.
14 See Footnote 12.