Consent for Treatment of Minors in Idaho (2023)

In Idaho, persons under the age of 18 ("minors") may consent to their own health care only in limited circumstances. Treating a minor without proper consent may expose the physician to tort liability for lack of informed consent or assault, as well as limit the physician's ability to receive payment for care. The following summarizes the current rules for minor consents in Idaho.

Rule of thumb: Obtain parental or surrogate decision maker consent.Idaho Code § 39-3503 sets forth the general standard for determining whether a person is competent to consent to their own health care:

Anyonewho understands the necessity, nature, and significant risks ordinarily inherent in any contemplated hospital, medical, dental, surgical, or other health care, treatment, or procedure, is competent to consent on his own behalf.

(Emphasis added). Although the reference to "any person" would suggest that sufficiently mature minors may consent to their own medical care, the next section of the code, § 39-4504(1), states:

Consent for the provision of... medical care... to any person...who is underagemay be granted or denied in the order of priority established below...
(a) The court-appointed guardian of such person;
…
(e) One of the parents of said person;
(f) The person named in a delegation of parental authority granted pursuant to [I.C. § 15-5-104];
(g) Any relative of such person who represents himself as an appropriate and responsible person to act under the circumstances;
(h) any other competent person representing himself or herself as responsible for such person's medical care; either
(i) If the individual has a medical emergency or there is a substantial likelihood that his or her life or health will be seriously endangered by withholding or delaying the provision of such…medical care…, the attending health care provider may , in his or her discretion, authorize and/or provide the medical care that it deems appropriate...

(Emphasis added). Given the specific reference to minors in § 39-3504, unless and until the statute is changed or an Idaho court provides a contrary interpretation, the most conservative approach is to assume that a minor cannoconsent for your own health care unless (i) the minor is emancipated, or (ii) another statute authorizes the minor to consent or allows treatment without consent, as explained below.

Exceptions.Minors can consent to their own care in the following situations:

1. If the minor is emancipated.Although there appear to be no cases in Idaho and few statutes on the matter, minors are likely to be considered emancipated and competent to consent to their own medical care if:

1. A court has entered an order declaring the minor emancipated. (IC § 16-2403(1)).
2. The minor is married or has been married. (VerCI §§ 16-2403(1), 18-604(3) and 66-402(6);see also id.in §§ 32-101(3) and 15-1-201(15)).
3. The minor is serving in the active military. (VerCI § 18-604(3)).
4. The minor has rejected the parent-child relationship, lives alone and is self-sufficient. (VerCI §§ 66-402(6) and 32-104;See also ireland vs ireland, 123 Idaho 955, 855 P.2d 40 (1993),and Embree against Embree, 85 Idaho 443, 380 P.2d 216 (1963)).

Contrary to common belief, pregnancy does not appear to be an emancipatory event under Idaho law. The Idaho legislature has stated that "[t]he ability to become pregnant and the ability to make mature judgment regarding the advisability of bearing a child or having an abortion are not necessarily related...". (IC § 18-602(d)). Consequently, Idaho's abortion statute generally requires parental consent before an abortion can be performed on a minor, unless certain emergency or court bypass conditions are met. (IC § 18-609A). Consent would not be necessary if the pregnancy were an emancipatory event. Idaho Code § 18-609A specifically refers to a "pregnant unemancipated minor" who would not exist if the pregnancy were an emancipatory event. Although these sections arise in the context of abortion, it is reasonable to assume that the same principle applies in other health care settings,that is to say., pregnancy itself is not an emancipatory event. However, various statutes may allow a pregnant minor to consent to certain types of care, as explained below.

2. Whether a law grants the minor authority to consent for their own care.Various statutes allow minors to consent to their own care or protect professionals who treat minors. For example:

1. Under Idaho law, physicians and certain other licensed professionals may provide tests, prescriptions, devices, and informational materials related to contraception if the physician believes that the patient is intelligent and mature enough to understand the nature and importance of the treatment. (IC § 18-604). Additionally, under federal law, minors may receive family planning services from Title X recipients. (42 USC § 300y ss.; 42 CFR § 59.5). Such services may include education and counseling for patients about family planning, contraception, basic infertility services, pregnancy diagnosis and counseling, cervical and breast cancer screening, and education, testing, and referrals for the prevention of diseases of the sexual transmission ("STD") and HIV, but not abortion. . (42 CFR § 59.5(a);See alsoProgram Requirements for Title X-Funded Family Planning Projects, available athttps://www.hhs.gov/opa/sites/default/files/ogc-cleared-final-april.pdf). According to the Federal Office of Population Affairs, Title X program staff may not notify parents or guardians before or after the minor has applied for and/or received Title X family planning services. (42 C.F.R § 59.11, OPA Program Policy Notice 2014-01, available athttps://www.hhs.gov/opa/sites/default/files/ppn2014-01-001.pdf).
2. Health care providers may provide necessary emergency care when the patient is unable or an authorized personal representative is not available to provide consent. (I.C. §§ 39-3801 and 56-1015;see also id.at § 16-2422(1)). In accordance with CMS Interpretive Guidelines, EMTALA allows minors to consent to their own emergency medical examination and, if an emergency condition is detected, to stabilize treatment in hospitals, at least until it can be Contact parents or guardians. (CMS State Operations Manual, Appendix V—Interpretive Guidelines—Emergency Responsibilities of Medicare Participating Hospitals (Rev. 60, 07-16-10)).
3. Minors under the age of 14 may consent to their own treatment for certain infectious, contagious, or communicable diseases that must be reported to the local health officer, including STDs. (IC § 39-3801;See alsoIDAPA 16.02.10.050). Parents are not responsible for the cost of such care. (IC § 39-3801).
4. Children under the age of 14 may consent to their own hospitalization or treatment in mental health facilities for mental illness. (IC § 66-318(b)). The facility must notify parents. (ID.) It is unclear to what extent this statute would apply to a minor's request for mental health care outside of a facility licensed by the state to house, assess, or provide care for the mentally ill.
5. Minors may consent to their own drug abuse treatment or rehabilitation. (IC § 37-3102). If the minor is 16 years of age or older, the fact that the minor sought treatment or that she is receiving such treatment may not be disclosed to the parent or guardian without the consent of the patient. (ID.). The physician should advise the patient on the benefits of involving his parents or legal guardians in his treatment or rehabilitation. (ID.).
6. Those under the age of 17 may consent to donate blood in a voluntary, non-compensatory blood program. (IC § 39-3701).

3. Perhaps if the minor is mature enough to understand and appreciate the consequences of their decision under I.C. §39-4503.In many states, minors can consent to their own care if they are mature and understanding enough to appreciate the consequences of their health care decisions. This "mature minor" doctrine is based on the fundamental right of mentally competent persons to make their own health care decisions and the recognition that a person's eighteenth birthday is a relatively arbitrary date on which competence is based. a person. The Supreme Court of the United States has recognized that, at some point, the constitutional right to privacy allows minors of sufficient maturity to make their own health decisions, especially in matters of reproductive rights. (See, for example, Carey v. Population Services Int'l, 431 U.S. 678 (1977) (law prohibiting anyone except a licensed pharmacist from distributing contraceptives without a prescription to persons age 16 and older was unconstitutional).

It is not clear if Idaho would adopt the mature minor doctrine or under what circumstances; however, there is a strong argument that the mature minor doctrine already exists in Idaho. As noted above, I.C. § 39-4503 states that "any person" who "understands the necessity, nature, and significant risks normally inherent" in any medical care is competent to consent thereto. In 2006 and 2007, the Idaho legislature rejected proposed amendments that would have limited the general consent statute to "any adult person." And as discussed above, various Idaho statutes recognize that sufficiently mature minors may consent to their care in certain contexts. (See e.g., IC §§ 18-603 and 18-609A(2)(a)). However, there are no reported cases in Idaho applying § 39-4503 to minors or adopting the "mature minor" doctrine, and § 39-4504 expressly identifies surrogates who may consent to minors. If a practitioner decides to rely on the "mature minor" doctrine, he does so at his own risk. At a minimum, the professional must carefully consider and document the appropriate factors relevant to her decision, including (i) the age of the minor (p.e., the decision is more easily justified if the minor is close to 18 years of age); (ii) the maturity and intelligence of the minor; and (iii) the nature of the processing (p.e., the courts have been more deferential in cases related to reproductive rights; and minors may consent to less serious care, but may lack the maturity to make important decisions).

Unintended consequences.The decision to allow minors to consent to their own health care may have unintended consequences. For example, minors generally lack the capacity to contract (I.C. §§ 29-101 and 32-101); accordingly, with limited exceptions, unemancipated minors can generally reject the contract, limiting the doctor's ability to receive payment for his or her medical services. (IC § 32-103;see also id.in secs. 32-104 and 32-105). Additionally, if a physician determines that the minor can consent to their own medical care, the parent or guardian is no longer the personal representative for HIPAA purposes (45 CFR §§ 164.504(g)); accordingly, HIPAA limits the ability of professionals to disclose information to parents or guardians without obtaining consent for disclosure from minors. (Ver45 CFR §§ 164.502(a) and 164.510(b)). Although HIPAA generally allows a physician to use or disclose protected health information for payment purposes without the patient's authorization, such uses or disclosures must be limited to the minimum necessary (45 CFR §§ 164.506 and 164.514(d)). Therefore, professionals must carefully limit how and what information they disclose to parents or guardians in such cases.

Conclusion.In most cases, doctors must seek parental consent before treating minors. In rare cases where they choose to rely on minor consent, practitioners must (i) ensure they have a legal or court-approved basis for doing so; (ii) document the facts that justify the exception; and (iii) consider the unintended effects of your decision, including increasing limits on your ability to communicate with or collect from the patient, parents and guardians.

If you have questions about this update, please contact:
kim c strange
Holland & Hart, 800 W Main Street, Suite 1750, Boise, ID 83702
email:kcstanger@hollandhart.com, phone: 208-383-3913

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