12. Consent to Treatment

In order to facilitate treatment of youth with alcohol and other drug problems and to remove any barriers to such treatment:

(a)    States should enact statutes authorizing a minor to consent to any non-custodial, non-invasive treatment.

(b) States should enact statutes permitting a minor to obtain voluntarily custodial or invasive treatment at a state licensed facility, even if the parents, after being notified, fail to, or do not consent to such treatment programs, provided that in the absence of such consent, within 48 hours: qualified counsel is appointed for the juvenile; parents have the right to participate; an appropriate alcohol or other drug treatment professional promptly evaluates the juvenile and the proposed plan of treatment; and an appropriate judicial body reviews the treatment plan for the juvenile.

The Advisory Commission heard testimony at all three field hearings regarding the issue of parental consent to treatment and how it can be a legal barrier to treatment for a youth with alcohol and other drug problems.300 Parental consent may be required for those youth voluntarily seeking treatment, and yet due to a parent's own alcohol or drug problem, that consent may be denied due to the parent's inability to cope with their own addiction.30I In some cases, programs cannot provide treatment without consent due to legal or financial requirements. In addition, there is also the issue of confidentiality of youth records when parental consent is required. 302
As a means of encouraging juveniles to voluntarily enroll in alcohol and other drug treatment programs, this resolution urges that parental consent not be required for the purposes of any non-custodial, non-invasive303 treatment of juveniles.304 When a juvenile does seek custodial and/or invasive treatment, however, the parent should be notified. If the parent fails to consent, procedural safeguards will prevent the defeat of the juvenile's treatment goals, and will determine if the juvenile in fact needs treatment. This resolution, however, is not intended to interfere with any already established legal rights of parents to place children in treatment in accordance with appropriate due process safeguards.

The question of parental consent for juvenile alcohol and other drug abuse treatment is a matter of state law. At present, thirty-five states, as well as Washington, D.C., do not require parental consent for alcohol and/or drug treatment.3" Of those states, approximately ten have clauses which require parental consent unless the treatment program staff comes to the conclusion that parental involvement would not be in the best interest of the child. Typical situations may be those where the parent refuses to consent, or objects to treatment, but the physician or qualified treatment team believes the child should receive treatment.3" While those state laws with no consent requirement vary in degree, treatment is generally defined as any alcohol or other drug treatment, be it custodial or non-custodial, invasive or non-invasive. 307

It is necessary to strike a balance between parental involvement and support in a juvenile's treatment308 and situations where little would be accomplished by involving a parent.309 The Advisory Commission's concern was that requiring parental consent to treatment in all cases would not always serve the best interest of the child. The goal of this resolution is to encourage juveniles to obtain alcohol and drug abuse treatment. This goal could be accomplished if there were no legal barriers to the juvenile's ability to seek treatment.31° Juvenile alcohol and drug abuse is described as a "family disease" because it affects the entire family.311 In addition, many juveniles become abusers because their parents are in fact abusers.312 Since denial is such a strong factor within the addiction diseases, many abusing parents, in an effort to deny their own addictions, may find it personally threatening to permit their children to obtain treatment or to get appropriate help in coping with their parent's addiction.313 Moreover, some juveniles who are substance abusers come from broken homes -- or have no parent or guardian who could consent to treatment on their behalf.

For those juveniles who have parents who are not themselves substance abusers, the necessity of obtaining parental consent for treatment may not always be in their best interest. Many of these juveniles will not seek treatment for drug or alcohol abuse if parental consent is required simply because of the tension that would be created if the parents were to discover the juvenile's alcohol or drug problem. A good treatment program will recognize the importance of parental involvement and will involve the family in the juvenile's treatment at the earliest possible stage. However, since the standard treatment for alcohol and drug problems is to involve the family, it is important to get at least the child into treatment first as a means of getting the entire family into treatment.315 This familial involvement also serves to cushion the threatening nature of the juvenile's situation and also reinforces the traditional supportive structure of the family unit.

There are constitutional questions as well regarding the denial of treatment to a juvenile if he or she refuses to obtain parental consent, or when the parent is contacted but refuses to permit treatment. The U.S. Supreme Court has affirmed a Washington court decision allowing a blood transfusion to a minor over the objections of the minor's parents who were practicing Jehovah's Witnesses.515

While the Advisory Commission has not drafted a model consent statute for non-custodial, non-invasive treatment for juvenile alcohol and other drug treatment, several states have enacted statutes that carry out this intent. A much thornier problem is whether parental consent should be required when a juvenile seeks custodial or invasive treatment for alcohol or other drug abuse problems. This recommendation recognizes the right of the parent to be informed of the child's problem and treatment, yet also maintains an interest in protecting the child's interest in treatment should the parent refuse to consent. Therefore, this recommendation is a rejection of 3 concepts: 1) that parental consent must always be obtained prior to a minor's treatment; 2) that a minor at whatever age is always competent to decide whether in-patient, invasive treatment is appropriate; and 3) that a treatment facility staff is always an adequate substitute for parental guidance in treatment matters.

The procedural framework of this recommendation is best described by way of example. A juvenile recognizes that he or she has a substance abuse problem. Perhaps the juvenile has attempted counseling or other non-custodial and/or non-invasive treatment without success. For a variety of reasons, the juvenile is reluctant to seek help from a parent or guardian. In many cases, the parent or guardian may be unaware of the problem. For reasons discussed supra the involvement of the parent or guardian may not be in the best interests of the child. When the juvenile contacts a state licensed facility for treatment, the staff will inform him/her that the parents must be notified and their consent obtained before the juvenile can be admitted. The parents are contacted and they refuse to give their consent for treatment. This right of the parent to be informed and to give or withhold consent has been upheld by the U.S. Supreme Court.

Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children.... [P]arents generally 'have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations'.... The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More importantly, historically it has been recognized that natural bonds of affection lead parents to act in the best interest of their children.316

The Supreme Court did, however, recognize that a parent is not always acting in the best interests of the child and that a "state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized."317 Therefore, in order to assist the judicial decision-maker in determining whether treatment is within the best interests of the child, and should be given over the objection of the parent, it is imperative that a state licensed facility evaluate the child. (If this results in a proposed plan of treatment where all three parties, parent, minor and treatment personnel agree, in-patient and/or invasive treatment can occur without court involvement.) Invasive in-patient treatment may never occur without experts agreeing that it is necessary.318 However, a treatment staff should never be able to take a minor under the age of discretion into in-patient and/or invasive treatment, except in life-threatening situations, over the objections of parents, without court approval that such treatment is necessary in the minor's best interest. In the case of a child suffering from alcohol or other drug abuse problems, a parent is not always acting in the best interests of the child when they are contacted by the state licensed facility and an evaluation is provided and they refuse to give consent to treatment. At this stage an appropriate judicial body should review the treatment program within 48 hours, parents be given the opportunity, if they so desire, to make an appearance at the hearing, and counsel be appointed to represent the juvenile's interests. This "buffer" of court review has several beneficial results: 1) the parents ultimately may be assured that the treatment is in fact in the child's best interest; 2) if the parents are not convinced they will be be prevented from interfering with the child's treatment; 3) over-zealous treatment advocates will be curtailed should the judicial body find that treatment is unwarranted; and 4) on advice of counsel, the juvenile will retain the right to refuse treatment should it be found that the treatment is not in the child's best interest.

Although it is always preferable to include parents in a child's drug or alcohol treatment, there are occasions whereby a parent's refusal to cooperate or consent to treatment will allow a serious disease to continue to harm the child and perhaps others. When this situation arises, it is necessary for the child to act in his own behalf to seek appropriate treatment. When this treatment is custodial or invasive, treatment personnel are not an adequate substitute in guiding a young minor into treatment. Therefore, it is necessary for the court, which has traditionally filled the role of parental decision-maker, to invoke additional procedural safeguards to insure that constitutional rights and protections are not infringed.

300 See, g., testimony of Paul Samuels, Esq., Princeton.

301 1d.

302 1d.

303 Non-custodial, non-invasive treatment is any treatment where the juvenile is not detained overnight or in any way against his/her will and which consists only of counseling. This counseling can include help for personal problems and for coping with parental alcohol and drug problems.

304 For purposes of this resolution, state law governs the age of maturity.

305 A thorough analysis of state law regarding a minor's right to consent to treatment is compiled in a book written by James M. Morrissey, Esq., which is awaiting publication. See also, D. Evans, Kids, Drugs, and the Law (1985).

306 See testimony of Paul Samuels, Esq., Princeton.

307 see Morrissey, supra note 305.

3081d.

309 See testimony of by Robert D. Margolis, Ph.D., Atlanta.

310 An additional impediment to juveniles seeking treatment is the fear that their parents will learn of the juveniles drug/alcohol problem. Thus, the confidentiality of drug and alcohol abuse treatment records may be a critical aspect of the effective treatment of abusers. The issue of confidentiality of treatment records is currently under study by the Attorney General (See Attorney General's Task Force on Family Violence, Final Report, September 1984); the National Center on Child Abuse and Neglect (NCCAN) and th Alcohol Drug Abuse and Mental Health Administration (ADAM HA), which are both components of the Department of Health and Human Services. (See Joint Policy Statement on Confidentiality of Alcohol and Drug Abuse Patient Records and Child Abuse and Neglect Reporting, Appendix to Atty. Gen. Op. Supplementing 76-52, May 3, 1979). The Advisory Commission is also studying this issue further before setting forth a recommendation.

311 See testimony of Paul Samuels, Esq., Princeton.

312 Recent statistics on children of alcoholics reveal that: approximately 28 million Americans have at least one alcoholic parent; 7 million children under age 20 are children of alcoholics; some 500,000 children in New York State live in alcoholic families; more than 50% of all alcoholics have an alcoholic parent; and sons of alcoholic fathers are 4 times more likely to become alcoholics than sons without alcoholic fathers. THE MAGNITUDE OF SUBSTANCE ABUSE IN AMERICA, supra note 6, at 11.

313 Id. Mr. Samuels has found this is especially true when the child is not necessarily abusing alcohol or drugs but is seeking counseling to help cope with the addicted parent.

314 But see Youngberg v. Romeo, 457 U.S. 307 (1982).

315 Jehovah's Witness v. Kings County Hosp., 278 F. Supp. 488 (W.D. Wa. 1967), aff'd. per curiam, 390 U.S. 598 (1968)(without opinion, affirming in reliance on Prince v. Massachusetts, 321 U.S. 158 (1944)). See also Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).

316 Parham V. J.R., 442 U.S. 584, 602 (1979). Parham dealt with the constitutionality of involuntary commitment of minor children by their parents. Thus, while Parham is not relevant in some ways to this resolution, it contains the absolute minimal safeguards for procedural due process in commitment proceedings. This resolution, however, goes beyond the requirements of Parham.

317 Id.

318 Id.