PrEP and our youth: implications in law and policy.

• Author: Burda, Jason Potter
• Position: II. Ensuring PrEP Accessibility Without Parental Involvement A. State Consent Laws 2. Minor Consent Pursuant to Emancipation Exceptions through Conclusion, with footnotes and appendices, p. 331-363

2. Minor Consent Pursuant to Emancipation Exceptions

   A minor who has reached the age of majority is automatically considered emancipated, but those under the age of majority who achieve legal emancipation, either by statutory mandate or judicial decree, have a greatly expanded range of rights and responsibilities. (175) All states have laws pertaining to the emancipation of minors who have not yet reached the age of majority. Emancipation may be de jure or de facto. De jure emancipation, or emancipation by law, occurs through court intervention, where a minor petitions a court to grant him or her the rights and responsibilities of adulthood. De jure emancipation, while an important tool, is of minimal significance for operationalizing PrEP for at-risk minors. Concerns about cost, privacy, and delay inherent in court intervention would likely be prohibitive for the majority of at-risk youth. Thus, operationalizing PrEP for minors without parental consent will require reviewing more economically feasible, confidential, and efficient solutions.

   De facto emancipation, or emancipation by right, is enabled by state statute and occurs when a minor has achieved a certain status or has certain "individual or social circumstances." (176) In these limited circumstances, the law presumes that the minor has the capacity to understand the risks and benefits of adult activities, and the minor may consent to general medical care (177) without court intervention. Thus, a minor who becomes a member of the armed forces, (178) enters into a marriage or receives a divorce, (179) graduates from high school, (180) is pregnant, (181) lives independently from his or her parents and is financially self-sufficient, (182) or is homeless (183) may, by virtue of this status, consent to a broad range of medical interventions. (184)

   No state law permits minors to consent to PrEP therapy or any other pharmacological HIV prevention modality. (185) However, some de facto emancipation exceptions that permit minors to consent to general medical care coincide with the personal, family, or social circumstances of certain at-risk minors. At-risk minors who are unaccompanied, have no contact with or live independently of caregivers, refuse to seek parental consent, or could endure mental or physical abuse should the provider seek parental consent likely comprise a great deal of PrEP candidates. Thus, it is critical to consider how state law treats minors in these circumstances. If a state permits a minor to consent to his or her own general medical care in these situations, advocates are presented with an excellent opportunity to operationalize PrEP for broad spectrum of high-risk youth who would likely eschew preventive HIV care in the event that parental consent is required.

   By statute, more than half of United States jurisdictions (186) permit certain minors to consent to general medical care, which by implication could include PrEP or other pharmacological HIV prevention modalities. (187) These statutory exceptions to the general rule that minors may not consent to their own medical care may be divided into six types: (1) separation and financial independence exceptions; (2) maturity exceptions; (3) mid-adolescence exceptions; (4) medical necessity exceptions; (5) parental unavailability or non-engagement exceptions; and (6) homeless youth exceptions. (188) Within this framework, I discuss each, and potential implications for operationalizing PrEP for self- consenting minors.

   1. Separation and Financial Independence Exceptions

      At least fifteen jurisdictions have statutes specifying that qualifying minors living separate and apart from their parents or guardians and "managing their own financial affairs" may consent on their own behalf to general medical care. (189) Some statutes do not specify the length of separation and financial independence. (190) In these jurisdictions, the exception may apply not just to those minors with sufficient financial means to live independently, but also to minors who are homeless, unstably housed, runaways, castaways, or living on the street, as long as those minors do not currently live with their parents or guardians and are not reliant upon them for financial assistance. On the other hand, it is unclear what the language "managing" one's own "financial affairs" means. Is it sufficient if the adolescent is currently not receiving financial assistance from a parent or guardian? What if the unaccompanied minor receives financial assistance from a friend? If the legislative purpose of these exceptions is to pinpoint a narrow category of minors who have demonstrated histories of financial responsibility and self-sufficiency, this may run counter to the argument that homeless, unstably housed, runaway, or castaway youth may self-consent pursuant to this exception. Advocates, particularly in states that do not have a dedicated consent law pertaining to homeless youth, should seek clarification about such laws as they relate to unstably housed youth and consider whether operationalizing PrEP for unaccompanied, self-consenting youth pursuant to this exception is consistent with its legislative purpose.

   2. Maturity Exceptions: Statutory and Common Law

      A minority of United States jurisdictions--including Arkansas, Idaho, Illinois, and Hawaii--permit minors with sufficient cognitive maturity to consent to general medical care without the consent of a third party via statute. (191) Arkansas, for example, permits "any unemancipated minor of sufficient intelligence to understand and appreciate the consequences of the proposed surgical or medical treatment or procedures, [to consent] for himself or herself." (192) Idaho declares that "[a]ny person who comprehends the need for, the nature of and the significant risks ordinarily inherent in any contemplated hospital, medical, dental, surgical or other health care, treatment or procedure is competent to consent thereto on his or her own behalf." (193) Illinois permits a minor to consent to general care if the primary care physician believes the minor understands the risks and benefits, and is identified as seeking care by a social services agency, attorney, or other adult decision maker. (194)

      A greater number of United States jurisdictions--including Connecticut, the District of Columbia, Illinois, Kansas, Maine, Massachusetts, Michigan, Mississippi, Tennessee, and West Virginia--permit minors with sufficient maturity to consent to general medical care without parental involvement via common law. (195) Under the mature minor doctrine at common law, the court determines, as a matter of fact, whether the minor has sufficient cognitive capacity to consent to medical treatment, taking into consideration factors such as the minor's age, apparent age, evidence of responsible behavior (outside and inside the provider setting), and evidence of reasoned decision making. (196) In determining whether a minor had sufficient maturity to consent to care and immunize a provider from liability, the Tennessee Supreme Court articulated the following test:

      [w]hether a minor has the capacity to consent to medical treatment depends upon the age, ability, experience, education, training, and degree of maturity or judgment obtained by the minor, as well as upon the conduct and demeanor of the minor at the time of the incident involved. Moreover, the totality of the circumstances, the nature of the treatment and its risks or probable consequences, and the minor's ability to appreciate the risks and consequences are to be considered. (197) In jurisdictions adopting the mature minor doctrine at common law, providers seeking to develop policies regarding PrEP for youth should first consider their liability dimensions in consultation with legal counsel. While common law maturity exceptions have been affirmed in connection with controversial treatments such as a minor's right to refuse lifesaving treatment (198) and other prophylaxes such as vaccination, (199) PrEP therapy is neither treatment refusal nor a one-time dosage. In fact, PrEP exposes the youth patient to enduring risks of side effects and tolerability issues. Moreover, it is unclear how courts would employ the maturity exception in off-label prescription of Truvada as PrEP for youth, especially since there is currently little clinical research confirming its safety and efficacy in the youth population. Thus, even in states with long-established common law mature minor doctrines, providers should proceed with caution.

      In jurisdictions adopting the mature minor doctrine via statute, youth of sufficient maturity may theoretically consent to their own healthcare, including PrEP, without first seeking the intervention of a court. (200) It is unclear, however, whether these statutes would require an adjudication that a particular minor is, in fact, sufficiently mature. A provider who relies on a minor's consent to PrEP pursuant to a mature minor statute that has not been the subject of judicial review may only know the statute's liability dimensions after a civil or criminal lawsuit is filed against them, or an adverse court ruling is issued.

      Notwithstanding these concerns, permitting the physician to assess the competence of a minor on an individual basis makes sense. It is consistent with recent trends to lower the age of consent in matters of sexual healthcare and with the highly individualistic nature of sexual healthcare. Additionally, these exceptions further the important legislative goal of ensuring adequate healthcare for youth. Furthermore, maturity exceptions that provide immunity for providers who rely on the self-consent of minors upon a finding of sufficient maturity incentivize medical professionals to foster substantive conversations with minors in matters where a minor would sooner forego care altogether than seek the permission of an adult caregiver.

      Thus, while not the surest means of ensuring minor access to PrEP...