Inconsistency Among American States on the Age at Which Minors Can Consent to Substance Abuse Treatment
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* Pedro Weisleder

## Abstract

In a recent publication, the lack of consensus among U.S. laws regarding the age at which minors may consent to confidential treatment for abuse of illegal substances was highlighted. This article reports the results of an investigation of the information used by legislators to determine the age at which minors may consent to treatment. Evidence indicates that in four states lawmakers considered the advice of mental health professionals before making age determinations. In six states “consistency with other state laws” or “precedence” was the lawmakers' major consideration. In five states, the main concern was removing legal barriers to treatment access. Lawmakers from several states had no independent recollection regarding the motives behind age selection. When deciding on the age at which minors would be allowed to consent to substance abuse treatment, some state legislators based their decisions on clinical data or legal facts. Some, however, appear to have made decisions without a clear foundation.

In a recent publication, the lack of consensus among U.S. laws as to the age at which a minor may consent to confidential treatment for alcohol and drug abuse was underscored.1 Several states' statutes indicate that confidential treatment should be available to “any minor” (e.g., Arkansas, Iowa, and Ohio), while other states have clear age specifications (e.g., Illinois: 12 years; Delaware: 14 years; and Maryland: 16 years). Federal regulations support the concept of treatment confidentiality and set restrictions on information disclosure based on each state's regulations.2 An examination of the differences among states' statutes prompts the question: What information was used by legislators to determine the age at which a minor may consent to confidential substance abuse treatment? One might theorize that lawmakers used Piagetian concepts of cognitive development,3 as well as more recent data4 that support the notion that 14-year-old minors demonstrate a level of competency equivalent to that of adults. Alternatively, lawmakers may have based their decisions on the English common law of colonial times.1,5 Under those laws, 14 years was the legal age when a girl could marry, and that age carried over to the colonies. It is possible that consent statutes were paired with marriage statutes. A third possibility is that lawmakers adopted a particular age to remain consistent with other legislation regarding minors. Finally, there is always the possibility that age selection was based on political principles.

This article reports on the effort to find answers to the aforementioned question. To achieve this goal, secretaries of state, state law librarians, and nonpartisan legislative staff (referred to variously in different states by titles such as legislative council, legislative counsel, or legislative commissioner, among other names) of the 50 U.S. states were asked to assist in identifying the lawmakers who crafted each state's bill that allows minors to consent to confidential treatment for abuse of illegal substances. The lawmakers were contacted, given an explanation of the purpose of the research, and invited to participate in it. Their responses are discussed in the description that follows.

## Methods

The statutes, codes, or regulations of each American state and the District of Columbia (D.C.) were searched on the World Wide Web for subjects such as substance abuse services, treatment for use of illegal drugs, alcohol or drug abuse, treatment of substance abusers, capacity of minors to consent to treatment, consent by minors to treatment or services, and drug-dependent minors. With specific information on these laws, the office of each secretary of state was contacted and asked for the legislative history of the particular law: the written and spoken public record that details the stages in the passage of a bill or resolution as it goes through the legislative process. The names of lawmakers involved in creating the bill and information on documents used to craft the bill were also included. When available, contact information for the legislators was obtained from the aforementioned sources. Otherwise, the World Wide Web was searched to attempt to locate the lawmakers.

Once identified, legislators were contacted via e-mail, telephone, or letter. As part of the interaction, the role that the legislator had in crafting a bill regarding the right of minors to consent to confidential substance abuse treatment in their states was reviewed. After they acknowledged that they were indeed involved in crafting the bill, their recollection of the information used to make age-specific decisions for the bill was requested. In those instances in which the person(s) who crafted the bill could not be contacted due to death or lack of contact information, secretaries of state, state law librarians, and members of states' legislative staff were asked for assistance. All e-mail and letter responses were stored for analysis at a later time, and they are part of the permanent record of this research. The information obtained from legislators was compared with that contained in the bills' legislative histories.

This work was deemed exempt from formal evaluation by Duke University Medical Center's Office of Human Subject Protections. Furthermore, the information used to document the work was obtained from the legislative history of each bill, which is a matter of public record.

## Results

The results of the investigation are displayed in Table 1, arranged alphabetically according to state. The columns contain the specific location in each state's statute or code where the laws that permit minors to consent to confidential treatment for abuse of illegal substances are found, the age at which minors may consent to treatment, and information as to whether the regulations specifically address treatment for substance abuse or if all mental health services are combined under the same heading.

View this table:
[Table 1](http://jaapl.org/content/35/3/317/T1)

**Table 1** 
State Laws that Permit Minors to Consent to Treatment for Abuse of Illegal Substances, and Age at Which Confidential Treatment Is Allowed

In the United States, 48 states and the District of Columbia (D.C.) have laws that authorize minors to obtain confidential medical treatment for abuse of illegal substances. In 44 states, the laws are specific to the treatment of drug addiction. In D.C., Alaska, Arkansas, New Mexico, and South Carolina, laws regarding treatment for abuse of illegal substances are bundled under the heading of mental health. Two states, Utah and Wyoming, do not have laws that allow minors to receive confidential treatment for mental illness, addiction included.

In 24 states and D.C., the age at which a minor may seek confidential treatment for abuse of illegal substances is not specified. In four states, the age for outpatient treatment is not specified but that for inpatient treatment is. Four states and D.C. stipulate that a parent or guardian must be notified if the treatment is to be rendered in an inpatient setting. Significant disparity exists among the 20 states that stipulate the age at which minors may seek treatment for drug abuse (e.g., Arizona: 12 years; Florida: 13 years; Delaware: 14 years; Colorado: 15 years; and Tennessee: 16 years); the modal age is 14 years.

The main goal of this investigation was to learn from state legislators the information that was used to determine the age at which minors can consent to confidential substance abuse treatment. Answers were received from legislators in 31 states. There was variability in the depth and relevance of the information. This inconsistency is likely a result of the inability to find the bill's complete legislative history, the time that has elapsed since the bill became law, whether the sponsors could be located, and the readiness of government agencies to assist in the quest. Table 2 contains highlights of the information that was compiled.

View this table:
[Table 2](http://jaapl.org/content/35/3/317/T2)

**Table 2** 
Highlights of Information Obtained Directly From the Legislators Who Crafted the Bills or From the Bills' Legislative Histories

## Discussion

U.S. state lawmakers were asked to recall the information used to determine the age at which minors in their states are capable of consenting to confidential treatment for abuse of illegal substances. At the outset, four theories were considered: Piagetian concepts of cognitive development, the English common law of colonial times, consistency with other state laws, and other practical matters.

Convincing evidence was found that, in four states (Maryland, New Mexico, North Dakota, and Washington), lawmakers considered the advice of mental health professionals before determining the age at which minors would be able to consent to confidential treatment for substance abuse. As previously mentioned, Piagetian concepts of cognitive development as well as more recent data support the notion that a 14-year-old minor can demonstrate a level of competency equivalent to that of an adult.3,4 For example, 14-year-old minors asked to select from a list of proposed treatments after evaluating four hypothetical treatment dilemmas demonstrated an ability equivalent to that of adults to make a reasonable choice and to understand the risks and benefits of their choices and of the treatment alternatives.3 Similarly, in evaluating hypothetical medical scenarios, 15-year-olds have been shown to possess the ability to make choices and comprehend risks and benefits at a level parallel to that of young adults.6 It remains unclear why legislators in both Maryland and Washington, after considering the advice of mental health professionals, set aside such evidence when making a final determination.

No evidence was found that legislators in any state utilized English common law to distinguish between minors and adults. Under those laws, individuals 14 to 21 years of age were presumed to be competent unless there was evidence to the contrary.4 In today's England, minors 16 years of age and older can consent to “…any medical treatment without the consent of a parent or guardian” as long as the child is deemed to be “Gillick competent.”7 Gillick competence is a term used to describe when a minor possesses the intelligence and understanding to consent to his or her own medical treatment despite young age. The standard is based on a decision of the House of Lords in the case *Gillick v. West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security*.7 This criterion is binding in England and has been approved in Australia, Canada, and New Zealand.

Evidence was found that legislators in six states (California, Florida, Kentucky, Tennessee, Virginia, and West Virginia) considered consistency with other state laws or precedence before deciding on the age at which minors could consent to substance abuse treatment. The concept of precedence establishes that an earlier opinion determines legal rules for future judgments on the same question. This notion is well entrenched in the legal system.

Lawmakers from several states had no recollection regarding the motives behind selection of a particular age for the bill that eventually became part of their states' statutes. Some indicated, for example, that the legislative history was unclear, that records were not kept, or that minutes of the sessions had no details. However, no one expressed his opinion more eloquently than the Colorado legislator who stated that “… we probably pulled the number out of thin air.”

Finally, a rationale not considered at the outset of this work was used by legislators in five states (Connecticut, Kansas, New Hampshire, Oregon, and Washington) to determine the age at which minors would be considered competent to consent to confidential treatment for substance abuse. In these states, the main concern of legislators was to remove legal barriers to access to treatment. Availability of confidential health care for minors is a guiding principle of adolescent medicine supported by many medical associations.1 Specifically, the Society for Adolescent Medicine has stated that private and confidential health services are essential for adolescents.8 Several studies have demonstrated that youngsters are more likely to seek medical treatment when privacy is assured.9 Conversely, fear of disclosure has been cited as a deterrent to seeking care for serious conditions.9–11 Thus, the decisions of the legislators in the five aforementioned states were in line with the recommendations of major medical organizations.

Information used by legislators in the United States to determine the age at which minors may consent to substance abuse treatment was sought. The answers revealed that in some instances decisions were based on clinically or legally sound foundations. Some decisions, however, appear to have been made based on last-minute political negotiations, or without clear scientific basis. The author recognizes that answers from every state of the Union were not available and that, as indicated by one legislator, in some cases “… the answer is probably lost in antiquity.”

## Acknowledgments

The author is indebted to Ms. Ashling Swift for her unwavering determination to collect the data for this project.

*   American Academy of Psychiatry and the Law

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