Hostname: page-component-cd9895bd7-hc48f Total loading time: 0 Render date: 2024-12-25T17:42:46.146Z Has data issue: false hasContentIssue false

Disclosure and Consent Problems in Pediatrics

Published online by Cambridge University Press:  28 April 2021

Extract

For a symposium in honor of Jay Katz, my teacher, advisor, friend, and ever-present source of help, it is an honor to be asked to write about disclosure and consent in pediatrics. From the time he began to think, write and teach about family law, Jay has advocated taking children and adolescents seriously. In our society such concern for their legal rights is unfortunately rare; the situation would be much worse were it not for Jay's writings and for his former students who have gone on to work for and with children. When he began to work in the areas of human subjects research and then informed consent, his concern for the rights of young people permeated this work as well.

Type
The Silent World
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

See, for examples of articles on this topic, Holder, Angela R., Medical Malpractice Law, 2nd ed., New York, John Wiley Press, 1978, Chapter 8; Holder, Angela R., “The Minor's Right to Consent: To Medical Treatment”, 41 Connecticut Medicine 579, 1977; Holder, Angela R., “Legal Issues Related to the Health Care of Minors”, 39 Clinical Proceedings, CHNMC 1, March/April, 1983; Pilpel, Harriet F., “Minor's Right to Medical Care”, 36 Albany Law Review 462, 1972; Wadlington, Walter J., “Minors and Health Care: The Age of Consent”, 11 Osgoode Hall Law Journal 115, 1973. Munson, Carol F., “Toward a Standard of Informed Consent by the Adolescent in Medical Treatment Decisions”, 8 Dickinson Law Review 431, 1981; Leikin, Sanford L., “Minors' Assent or Dissent to Medical Treatment”, 102 Journal of Pediatrics 169, 1983; and a particularly informative and well-written article, Linda Sorenson Ewald, “Medical Decisionmaking for Children: An Analysis of Competing Interests,” 25 St Louis Law Journal 689, 1982.Google Scholar
E.g., Zaman v. Schultz, 19 Pa D & C 309, 1933.Google Scholar
Bonner v. Moran, 126 F 2d 121, CA 1941.Google Scholar
Lowrie, Luka v., 136 NW 1106, Mich 1912; Sullivan v. Montgomery, 279 NYS 575, NY 1935.Google Scholar
E.g., Bach v. Long Island Jewish Hospital, 267 NYS 2d 289, NY 1966.Google Scholar
E.g., Swenson v. Swenson, 227 SW 2d 103, Mo 1950.Google Scholar
Full citations of all minor treatment statutes as of the dates of publication may be found in Ewald, supra at 1. See also Pilpel, Harriet S., “Minors' Rights to Medical Care”, 36 Albany Law Review, at 472487, 1972; Wilkins, Lawrence P., “Children's Rights: Removing the Parental Consent Barrier”, 1975 Arizona State Law Review 31.Google Scholar
Holder, Angela R., “Treating a Minor for Venereal Disease”, 214 JAMA 1949, December 7, 1970.Google Scholar
AMA News, April 17, 1967, page 4.Google Scholar
Pilpel, , supra at 1, page 466.Google Scholar
Carter v. Cangello, 164 Cal Rep 361, 1980; Younts v. St. Francis Hospital and School of Nursing, 469 P 2d 330, Kans 1970; Lacey v. Laird, 139 NE 2d 25, Ohio 1956.Google Scholar
Shartel, Burke and Plant, Marcus, The Law of Medical Practice, Springfield, Ill, Thomas, Charles C. Publisher, 1959, page 26. See also Wadlington, Walter, “Minors and Health Care: The Age of Consent”, 11 Osgood Hall Law Journal 115, 1973.Google Scholar
Memorial Hospital v. Maricopa County, 415 US 250, 1974.Google Scholar
E.g., In re Gault, 387 US 1, 1967.Google Scholar
Cidis v. White, 336 NYS 2d 362, NY 1972.Google Scholar
Accent Service Company v. Ebsen, 306 N.W. 2d 575, Neb 1981; Poudre Valley Hospital District v. Heckart, 491 P 2d 984, Colo 1971; Ison v. Florida Sanitarium and Benevolent Association, 302 So 2d 200, Fla 1974.Google Scholar
Yarborough v. Yarborough, 290 US 202, 1933.Google Scholar
E.g., Melville v. Sabbatino, 313 A 2d 886, Conn 1973.Google Scholar
In re Smith, 295 A 2d 238, Md 1972; In the Matter of Mary P., 444 NYS 2d 545, NY 1981.Google Scholar
For general discussion of this topic, see Bennett, Robert, “Allocation of Child Medical Care Decision-Making Authority: A Suggested Interest Analysis”, 62 University of Virginia Law Review 285, 1976; Ewald, Sorenson Linda, “Medical Decisionmaking for Children: An Analysis of Competing Interests”, 25 St Louis Law Journal 689, 1982; Sher, Elizabeth J., “Choosing for Children: Adjudicating Medical Care Disputes Between Parents and the State”, 58 NYU Law Review 157, 1983.Google Scholar
E.g., Craig v. State, 155 A 2d 684, Md 1959; People v. Pearson, 68 NE 243, NY 1903; State v. Clark, 261 A 2d 294, Conn 1969; Eaglen v. State, 231 NE 2d 147, Ind 1967; People v. Edwards, 249 NYS 2d 325, NY 1964.Google Scholar
E.g., Jehovah's Witnesses of Washington v. King County Hospital, 278 F Supp 488, aff'd 390 US 598, 1968; Hoener v. Bertinato, 171 A 2d 140, NJ 1961; Muhlenberg Hospital v. Patterson, 320 A 2d 518, NJ 1974; In re Clark, 185 NE 2d 128, Ohio, 1962; People ex rel Wallace v. Labrenz, 104 NE 2d 769, Ill, 1952; State v. Perricone, 181 A 2d 751, NJ 1962; Holder, Angela R., “Circumstances Warranting Court-Ordered Treatment of Minors”, 24 POF 2d 169; Holder, Angela R., “Parents, Courts and Refusal of Treatment”, 103 Journal of Pediatrics 515, 1983.Google Scholar
In the Interests of E.G., 161–91 Ill App Third Division, 765, 515 NE 2d 286, 1987; In re Green, 292 A 2d 387, 307 A 2d 279, Pa 1972.Google Scholar
In re Hamilton, 657 SW 2d 425, Tenn 1983.Google Scholar
In re D.L.E., 645 P 2d 271, Colo 1982.Google Scholar
In re Karwath, 199 NW 2d 147, Iowa 1972.Google Scholar
In re Sampson, 328 NYS 2d 686, NY 1972.Google Scholar
In re Welfare of Wachlin, 245 NW 2d 183, Minn 1976.Google Scholar
See, e.g., Jacobson v. Massachusetts, 197 US 11, 1905; Zurcht v. King, 260 US 174, 1922; Board of Education of Mountain Lakes v. Maas, 158 A 2d 330, NJ 1959; McCartney v. Austin, 293 NYS 2d 188, 1968; Dalli v. Board of Education, 267 NE 2d 219, Mass 1971; Itz v. Penick, 493 SW 2d 506, Tex, 1973.Google Scholar
E.g., Connecticut General Statutes 10–204a.Google Scholar
See, e.g., In re Eric B. v. Ted B., California Court of Appeals, First District, Ct. No JUV- 69430, February 8, 1987; In re Custody of a Minor, 379 N.E. 2d 1053, 393 N.E. 2d 836, 1979; In re D.P., No. 91590, Superior Court of the State of California, Santa Clara County, July 3, 1986; Ainsworth, Marilyn V. and Wall, Jerry, “Laetrile: May the State Intervene on Behalf of a Minor?” 30 Kansas Law Review 409, 1982; Horowitz, Eva T., “Of Love and Laetrile: Medical Decisions Made in a Child's Best Interest”, 5 American Journal of Law & Medicine 271, 1979.Google Scholar
In re Hofbauer, 47 NYS 2d 648, 419 NYS 2d 936, 393 NE 2d 1009, 1979.Google Scholar
E.g., Weber v. Stony Brook Hospital, 467 NYS 2d 685, NY Ct App No. 672, October 28, 1983; In re Seiforth, 127 NE 2d 820, NY 1955; In re Hudson, 126 P 2d 765, Wash 1942; In re C.F.B., 497 SW 2d 831, Mo 1973.Google Scholar
In re Hudson, 126 P 2d 765, Wash 1942; In re Seiforth, 127 NE 2d 820, NY 1955; In re Tuttdendario, 21 Pa Dist 561, Pa 1912.Google Scholar
For a somewhat similar case, see In re B., 92 Cal App 3d 796, Cert den445 US 949, 1980; In re Guardianship of Philip B., 188 Cal Rptr 781, 1983.Google Scholar
45 CFR Part 467, Subpart A, Section 46. 116.Google Scholar
Durfee v. Durfee, 87 NYS 2d 275, NY 1949.Google Scholar
Burge v. City and County of San Francisco, 262 P 2d 6, Cal 1953; Campbell v. Campbell, 441 SW 2d 658, Tex 1969; Leithold v. Plass, 413 SW 2d 698, Tex 1967.Google Scholar
E.g., Ramsey, Paul, The Patient as Person, New Haven, Yale University Press, 1974, at page 17 ff.; McCormick, Richard A., “Proxy Consent in the Experimental Situation”, 18 Perspectives in Biology and Medicine 2, Autumn, 1974.Google Scholar
Prince v. Massachusetts, 321 US 158 at 170, 1944.Google Scholar
Ramsey, Paul, The Patient as Person, supra at 42, at page 17.Google Scholar
Medical World News, June 8, 1973, at page 41.Google Scholar
Curran, William J. and Beecher, Henry K., “Experimentation in Children”, 210 JAMA 77, 1969.Google Scholar
See McCormick, supra at 42, page 4.Google Scholar
See, e.g., H.C. Shirkey, “Therapeutic Orphans”, 72 Journal of Pediatrics 119, 1968; Capron, Alexander M., “Legal Responsibilities Relating to the Use of Unapproved Drugs in Children”, in Mirkin, B.L., Editor, Clinical Pharmacology and Therapeutics: A Pediatric Perspective, at page 305, Chicago, Year Book Medical Publishers, 1978; Levine, Robert J., Ethics and Regulation of Clinical Research, 2nd edition, Baltimore, Urban and Schwarzenburg, 1986 at pages 239–241.Google Scholar
Carter v. Metropolitan Dade County, 253 So 2d 920, Fla 1971; Hirsch, Harold L., “The Medicolegal Implications of the Package Insert”, Case and Comment January 1977, page 14; Lhotka v. Larson, 238 NW 2d 870, Minn 1976; Koury v. Follo, 158 SE 2d 548, NC 1968; Pfizer, Inc. v. Jones, 272 SE 2d 43, Va 1980.Google Scholar
E.g., Mueller v. Mueller, 221 NW 2d 39, SD 1974; Dalke v. Upjohn Co., 555 F 2d 245, CCA 9, 1977.Google Scholar
National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, Report and Recommendations on Research on Children, Federal Register January 13, 1978.Google Scholar
E.g., Stephen Goldy, “Experiments in the Willowbrook School”, 1 Lancet 749, 1971; Katz, Jay, Experimentation With Human Beings, New York, Russell Sage Foundation 1972 at pages 10071010; Rothman, David J. and Rothman, Sheila M., The Willowbrook Wars, New York, Harper & Row, 1984; Student Council, New York University School of Medicine, Proceedings of the Symposium on Ethical Issues in Human Experimentation: The Case of Willowbrook State Hospital, New York, Urban Health Affairs Program, New York University Medical Center, 1973.Google Scholar
Krugman, Saul Giles, J.P. and Hammond, J., “Viral Hepatitis, Type B (MS-2 Strain): Studies on Active Immunization”, 217 JAMA 41, 1975.Google Scholar
PL 93–348, 93rd Cong. July 12, 1974.Google Scholar
45 CFR, Part 46, Section 404.Google Scholar
45 CFR, Pan 46, Section 405.Google Scholar
45 CFR, Part 46, Section 406.Google Scholar
45 CFR, Part 46, Section 408.Google Scholar
45 CFR, Part 46, 408 (c).Google Scholar
48 Fed Reg 9814, March 8, 1983; 45 CFR Part 46, Subpart D.Google Scholar
Mitchell, Ross G., “The Child and Experimental Medicine”, 1 British Medical Journal 721, 1964.Google Scholar
Holder, Angela R., “Mental Illness and Parental Rights”, 216 JAMA 575, 1971; e.g., Ericson v. Ericson, 195 Pac 234, Wash 1921; Stoll v. Stoll, 68 NW 2d 367, Minn 1955; Atkinson v. Atkinson, 231 P 2d 641, Wash 1951.Google Scholar
Baker v. Owen, 423 US 907, 1975.Google Scholar
See, for discussions of children's rights to make decisions in the research context Ferdinand Schoeman, “Children's Competence and Children's Rights”, 4 IRB: A Review of Human Subjects Research No. 6, page 1, June/July 1982; Weithorn, Lois, “Children's Capacities to Decide About Participation in Research”, 5 IRB: A Review of Human Subjects Research No. 2, page 1, March/April 1983; Ackerman, Terrence F., “Moral Duties of Investigators Toward Sick Children”, 3 IRB: A Review of Human Subjects Research No. 6, page 1, June/July 1981; Keith-Spiegel, Patricia, “Children and Consent to Participate in Research,” in Melton, G.B. Koocher, G.P. and Saks, M.J., eds, Children's Competence to Consent, New York, Plenum Press, 1983.Google Scholar
45 CFR Part 46, Section 46. 101 (b).Google Scholar
Merriken v. Cressman, 364 F Supp 913, DC Pa, 1973; Sheerer, Charles W. and Roston, Ronald A., “Some Legal and Psychological Concerns About Personality Testing in Public Schools”, 30 Federal Bar JournalIII, Spring 1971.Google Scholar
See for example, David L. Kirp, “Schools as Sorters”, 121 University of Pennsylvania Law Review 705, 1973; Lau v. Nichols, 412 US 938, 1973.Google Scholar
Holder, Angela R., “Can Teenagers Participate in Research Without Parental Consent?” 3 IRB: A Review of Human Subjects Research No. 2, page 5, February, 1981; Roberta Herceg-Baron, “Parental Consent and Family Planning Research Involving Minors”, 3 IRB:A Review of Human Subjects Research No. 9, page 5, November 1981; Levine, Carol, “Teenagers, Research and Family Involvement”, 3 IRB: A Review of Human Subjects Research No. 9, page 8, November 1981.Google Scholar