Chapter 5 - Minors

Summary

This chapter develops for the case of minors the implications of the general analytical framework set out in earlier chapters. At the same time, this application will elucidate the framework itself and confirm its usefulness. The greater part of the investigation will focus on older minors, not on infants, for two reasons. First, and most importantly, some of the most difficult and complex issues arise in the case of minors who are sufficiently mature that it is implausible to exclude them from the decision-making process altogether, but whose competence to make certain important decisions is questionable. Second, in the scholarly literature and in the popular press there has been an extraordinary preoccupation with decisions concerning infants, in part as a result of much publicity concerning a very few sensational cases, and in part because of highly controversial administrative policies (the “Baby Does Regs”) of the Federal government. Without denigrating the ethical and political significance of decision making for disabled newborns, it is important to avoid a narrow preoccupation with this one (extremely limited) class of minors. Nevertheless, a fairly extensive discussion of problems concerning disabled newborns is included.

NONINFANT MINORS

The current legal presumption of incompetence

What role should children play in decision making about their health care? The doctrine of informed consent requires that medical treatment only be given to adults with their competent, informed and voluntary consent.