10.1 Legal Status and Rights of Minors

Adolescents are aged 12-19, which is a time marked by rapid biological, cognitive, emotional, and social development (English, 1990). Because of the rapid growth and wide range of development in teenagers, adolescenthood is more for legal purposes than developmental. Adolescent’s legal rights are limited, and they remain dependent on caregivers despite growing autonomy. Whatever the intentions of the legality are, it leaves adolescents in vulnerable situations with important implications for counselors when working with them. Adolescent work is inherently systems work, and counselors must consider problems in the context of the various systems they engage with. On a society-wide scale, there is a common belief that adults know what is best for young people. However, counselors hold space for this to be false (Koocher, 2003). Counselors must be aware of their own biases toward young people. Clinical treatment of adolescents is different from that of adults, and a variety of new ethical and legal considerations exist for this population, too.

Adolescent Legal Status

Adolescents have yet to reach the age of majority, as ultimately defined by state statutes. Because of their legal status as minors, they have limited legal rights. They are dependent on their parent(s)/ legal guardian(s) to meet physical, medical, emotional, social, financial, etc. needs (English, 1990). They cannot live independently from their caregivers (English, 1990). Another legal limitation they face is a lack of ability to enter into binding contracts without parent/ guardian permission; Thus, they are unable to consent to treatment, though some states offer stipulations for mental health and substance use treatment, as discussed later in this text (English, 1990; Kerwin, 2015).

Additionally, their legal status as minors impacts the counselor’s role in treating them, and parents/ guardians are involved to varying extents as determined by clinical judgment. Counselors consult relevant state statutes that guide consent to treatment and client privacy in treatment and apply them accordingly with clients. Some states defer to the parent/ guardian, others to the young person at certain ages for different kinds of care, and nearly all fail to address what happens when there is incongruence between the two parties (Kerwin, 2015).

Next, we will discuss different “groups” of adolescents and view each of their legal rights on a spectrum.

Young Minors

Young minors are usually defined in state laws as 14 or younger, though counselors should check laws in their jurisdiction. They have fewer rights and autonomy than older adolescents because of their cognitive and emotional development stages, and a parent/ guardian is the legal decision-maker (Ford-Sori, 2015). This goes along with the parent/guardian’s legal duty to protect the child, as discussed in section 10.2. Parents also have a legal right to their young minor’s records regarding diagnosis, prognosis, therapy, etc. (Ford-Sori, 2015). Professionals can treat young minors in emergencies or crises without consent, though the best practice is to involve parents and obtain consent as quickly as possible (Ford-Sori, 2015).

Mature Minors

State statutes determine the age at which adolescents are considered mature minors, though most are 16+ (Ford-Sori, 2015). Per Piaget’s stages of cognitive development, adolescents begin to engage in “formal operational reasoning,” or thought processes that are logical, abstract, and based on increasingly complex reasoning beginning at age 12 (Kerwin, 2015). Research groups have shown that adolescents can make informed decisions similarly to adults (Kerwin, 2015). Additionally, adolescents’ capacity to comprehend hypothetical medical information and to make judgments about risky behaviors was not significantly different from that of their adult counterparts (Beyth-Marom, 1993). Therefore, they operate with legal status between young minors and adults, as they are granted the ability to make certain decisions independently (English, 1990). The mature minor doctrine is a legal document that allows mature minors to have certain rights and expectations in a court setting and can be legally applied to other circumstances, including consent for health care (English, 1990).

Consequently, mature minors can consent to mental health care and substance use services. They can sign information releases under the mature minor doctrine, though counselors should consult state statutes for further legal guidance (English, 1990). They can also access care related to an emergency, diagnosis or treatment of a sexually transmitted infection, birth control, contraception, and pregnancy (Sigman, 1991).

Most state statutes also encourage adolescents to get the care they need lest it create a public health or social hazard (English, 1990). In the 1960s, the federal government realized the nuances of mandating parental consent to treatment and how it limited access to care (Kerwin, 2015). As a result, they began giving adolescents limited autonomy in making care-related decisions, though best practice may sometimes be to involve parent(s)/ guardian(s) (Kerwin, 2015). Counselors consider the young person’s developmental status and decisional capabilities in obtaining valid informed consent for treatment. To do so, they remain attuned to the capacities and circumstances of the person sitting with them.

Suppose the mature minor can comprehend the risks and benefits of treatment and engage in decision-making out of their best interest. In that case, they can proceed with the person’s consent as valid grounds for starting treatment (English, 1990). If they have concerns regarding the person’s capacity or mental state (i.e., intoxication, ongoing use, or eating disorder clients), they obtain parental permission for care (English, 1990). Young people are still developing healthy impulse control and the ability to comprehend the risks. Therefore, they may not understand the risks of refusing treatment or not participating in mandated treatment, as is the context for many adolescents entering substance use treatment (Kerwin, 2015). Counselors are aware that adolescents may not want to address their substance use, that substance use brings immediate positive rewards for them that offset consequences, and their current level of brain development (high impulsivity, high reliance on social factors and pressures, lack of executive functioning) impairs important care-related motivations and decisions (Kerwin, 2015). In these cases, counselors may have to work on integrating perspectives from the client, their family, and applicable legal people as part of informed consent for services—more on this in section 10.3.

Emancipated Minors

Adolescents (age 14 or 15, depending on the state and through age 18) can go through a formal legal to be officially deemed an emancipated minor (Koocher, 2003). In these cases, they are legally independent from their parents and live according to adults’ legal rights and obligations (Koocher, 2003). They can enter binding contracts on their own. Thus, they can consent to all care (Koocher, 2003). They have legal ownership over medical records, and counselors protect their confidentiality, privacy, and privileges like any adult client (Ford-Sori, 2015). Limitations to the rights of emancipated minors include the right to vote and to purchase alcohol (Koocher, 2003). Emancipated minor cases can come about in various ways depending on state law. However, some include parental permission and court orders if the minor marries, has a child, or enlists in the military (Ford-Sori, 2015). There are no court-ordered assessments regarding a minor’s capacities as part of these cases, as typically, laws do not account for a young person’s decision-making capacity (Koocher, 2003).

Rights of Minors

The Committee on the Rights of the Child (CRC) is an international force ordained in 1989 that defined the fundamental rights of all children (UNICEF, 2019). The Convention on the Rights of the Child document is an agreement created by the committee that reflects the internationally agreed-upon rights of minors under 18. It lists 54 total rights of children, and some overarching themes of child rights are included in box 10.1 below (UNICEF, 2019).

Box 10.1 Basic Rights of Children as outlined by the CRC (UNICEF, 2019).

Overall, children have a right to a “full and decent life” and to “conditions that ensure dignity, promote self-reliance, and facilitate the child’s active participation in the community” (Koelch, 2010, p.260). Given adolescent’s vulnerability, counselors remain sensitive to this and are active and transparent in promoting their welfare (Koelch, 2010). A young person’s well-being is dependent on their family life; Therefore, counselors have an ethical responsibility to work with parent(s)/ guardian(s)/ others to promote family functioning and advocate for the needs of their client (Koelch, 2010). In general, counselors balance ethical codes related to confidentiality and privacy with their legal duties of protecting the safety of young people and acknowledging the legal role of parent(s)/ guardian(s) (Koelch, 2010). This can get convoluted, and they always place their client’s welfare at the forefront, including decisions they may not like or agree with. When involving parents, the best practice is communicating with and including the child. We will offer further considerations and a proposed decision-making process in Section 10.3.