When Does A Minor's Legal Competence To Make Health Care Decisions Matter?

In this article, I examine the role of minors' competence for medical decision-making in modern American law. The doctrine of parental consent remains the default legal and bioethical framework for health care decisions on behalf of children, complemented by a complex array of exceptions. Some of those exceptions vest decisional authority in the minors themselves. Yet, in American law, judgments of minors' competence do not typically trigger shifts in decision-making authority from adults to minors. Rather, minors' decisional capacity becomes relevant only after legislatures or courts determine that the default of parental discretion does not achieve important policy goals or protect implicated constitutional rights in a particular health care context and that those goals can best be achieved or rights best protected by authorizing capable minors to choose for themselves. It is at that point that psychological and neuroscientific evidence plays an important role in informing the legal inquiry as to whether minors whose health is at issue are legally competent to decide.

Legal approaches to promoting parental compliance with childhood immunization recommendations.

Rates of vaccine-preventable diseases have increased in the United States in recent years, largely due to parental refusals of recommended childhood immunizations. Empirical studies have demonstrated a relationship between nonvaccination rates and permissive state vaccine exemption policies, indicating that legal reforms may promote higher immunization rates. This article reviews relevant data and considers the legal landscape. It analyzes federal and state Constitutional law, concluding that religious and personal belief exemptions to school-entry vaccine mandates are not constitutionally required. It identifies public health, bioethical, and policy considerations relevant to the choice among legal approaches employed by states to promote parental compliance. The article describes a range of legal tools that may help promote parental cooperation with immunization recommendations.

Lost in translation: the unintended consequences of advance directive law on clinical care.

BACKGROUND: Advance directive law may compromise the clinical effectiveness of advance directives. PURPOSE: To identify unintended legal consequences of advance directive law that may prevent patients from communicating end-of-life preferences. DATA SOURCES: Advance directive legal statutes for all 50 U.S. states and the District of Columbia and English-language searches of LexisNexis, Westlaw, and MEDLINE from 1966 to August 2010. STUDY SELECTION: Two independent reviewers selected 51 advance directive statutes and 20 articles. Three independent legal reviewers selected 105 legal proceedings. DATA EXTRACTION: Two reviewers independently assessed data sources and used critical content analysis to determine legal barriers to the clinical effectiveness of advance directives. Disagreements were resolved by consensus. DATA SYNTHESIS: Legal and content-related barriers included poor readability (that is, laws in all states were written above a 12th-grade reading level), health care agent or surrogate restrictions (for example, 40 states did not include same-sex or domestic partners as default surrogates), and execution requirements needed to make forms legally valid (for example, 35 states did not allow oral advance directives, and 48 states required witness signatures, a notary public, or both). Vulnerable populations most likely to be affected by these barriers included patients with limited literacy, limited English proficiency, or both who cannot read or execute advance directives; same-sex or domestic partners who may be without legally valid and trusted surrogates; and unbefriended, institutionalized, or homeless patients who may be without witnesses and suitable surrogates. LIMITATION: Only appellate-level legal cases were available, which may have excluded relevant cases. CONCLUSION: Unintended negative consequences of advance directive legal restrictions may prevent all patients, and particularly vulnerable patients, from making and communicating their end-of-life wishes and having them honored. These restrictions have rendered advance directives less clinically useful. Recommendations include improving readability, allowing oral advance directives, and eliminating witness or notary requirements. PRIMARY FUNDING SOURCE: U.S. Department of Veterans Affairs and the Pfizer Foundation.