Abstract

The following paper examines the ethical implications in reference to a minor’s informed consent within the context of the therapeutic relationship. The onset of the paper provides a brief description of informed consent and the available ethical guidelines delineated by the American Psychological Association. Upon establishing the definition and ethical obligations of informed consent, the current legal obligations are addressed. Finally, a persistent debate among psychologists is also presented. Questions such as: "are minors competent"; "can children recognize rights"; and "can children participate in treatment planning" facilitate the search for a predetermined protocol to discern a minor’s ability to provide informed consent. Closing remarks focus on the implications of assent versus consent.

A review of the literature through PsychLit provided the research and theoretical articles used in this paper to describe the ethical and legal issues associated with informed consent and children. This paper provides no clear implications regarding this issue but instead provides the available theoretical views posed by those in the field of ethics, legality, and therapeutic intervention.

 

 

Ethical Implications Regarding Minors

and the Therapeutic Relationship:

The Appropriate Age of Consent

An individual must provide informed consent for psychological treatment if any of the following conditions exist: 1) if treatment may have positive or negative effects; 2) if one treatment is not superior to another; 3) if treatment may be hazardous; or 4) if full cooperation is required for success of therapy (Jensen, Josephson, & Frey, 1989). Therefore, prior to the onset of any therapeutic intervention, it is imperative that the client provides informed consent. This consent protects the client and the therapist legally and also provides a framework for the development of the therapeutic relationship. Informed consent is comprised of three factors: voluntariness, knowledge, and intelligence/competence (DeKraai & Sales, 1991; Grisso & Vierling, 1978; Levine, Anderson, Ferretti, & Steinberg, 1993). In other words, the client must willingly (without coercion) participate in treatment. Not only must the client agree to treatment, but the client must be knowledgeable of the parameters of the treatment that would include both possible benefits and hazards. Finally, the client must be capable of understanding all information presented to her and based upon this information make a logical decision regarding consent.

The concept of informed consent may initially appear simplistic and to the point, but it is not so when applied to the minor. According to Levine et al.(1993), even legal and ethical codes do not provide an easy to follow protocol when dealing with issues of a minor’s informed consent as there always exists "competing principles that can never be settled by unambiguous reference to some overriding principle." There often will exist a discrepancy between the ethics of psychology and the law of the land. For example, the Ethical Principles of Psychologists and Code of Conduct from the American Psychological Association (1992) list several ethical principles toward each psychologists should strive: respect for the client’s rights and autonomy, and the exhibition of beneficence toward that client. Each of these principles should be ascribed to despite the client’s various cultural, individual, and role differences (this would include age). It is here where the paths of ethics and legality diverge. A minor is legally prevented from obtaining complete autonomy thereby creating a dilemma for the clinician. The child may be required by parents, who provide the informed consent, to attend therapy sessions. Typically, a minor’s consent to treatment is acknowledged but dissent largely goes unrecognized by the clinician as a minor’s consent is often viewed merely as a "right to know" (Grisso & Vierling, 1978). Pearce (1994) would suggest consent is not possible unless the individual is also able to refuse as well. If this refusal is denied, the clinician is unable to respect the child’s autonomy. Concerning the issue of beneficence, the clinician is responsible for maintaining the client’s welfare as the goal of therapy. This responsibility may become diluted when dealing with children as clients as society’s and families’ interest may also be important (Levine et al., 1993). A breach of either of these principles may seriously hinder the therapeutic relationship.

Presently, state statutes vary according to treatment purpose regarding the legal age of consent (Grisso & Vierling, 1978). Generally speaking, the standard age of consent is 18 years. In addition, the individual must be both autonomous and competent (Broome & Stieglitz, 1992). The age of 16 years is also predominant in some states as 16 is the age of consent recommended by National Institute on Mental Health (as cited in Melton, 1981). The Commonwealth of Virginia is the only state which allows minors to consent to psychotherapeutic treatment in the absence of parental consent (Keith-Spiegel & Koocher, 1985).

The ages of consent stated above refer to a minor’s ability to provide consent without accompanying parental consent, but often a parent may insist upon treatment for an unwilling minor. Regarding such a dilemma, the Supreme Court ruled in the case of Kremens v. Bartley (1977, as cited in Hendrix, 1991) that informed forced consent was prohibited beyond the age of 14. This new law established the right of individuals 14 years and older to voluntarily commit to or withdraw from institutional treatment.

There exist certain exceptions to the rule of parental consent. Conditions which may endanger public health (i.e. sexually transmitted disease) supersede parental permission and only the consent of the minor is required for treatment. A second exception would be if the minor would likely not seek treatment if confidentiality was not maintained (i.e. pregnancy, birth control, drug treatment). Furthermore, if harm is likely to ensue in the absence of treatment, either to the minor or another party, parental consent is not required (i.e. suicidal/homicidal threats). A final exception is if the minor has been "emancipated," a minor who is independent from her or his parents (Keith-Spiegel & Koocher, 1985; Melton, 1981).

Although future trends in children’s legal rights are focusing on the expansion of rights to cover the following: adequate nutrition, healthy environment, continuous loving care, sympathetic community, intelligent and emotional stimulation (Rodham as cited in Glenn, 1980), and right to life, home, education, and liberty (Forer as cited in Glenn, 1980), many of these rights are often denied children, and the concept of a child’s right to provide consent is, for the most part, ignored. The courts have largely placed responsibility upon the mental health professionals to mediate between the best interest of the child and the intentions of the parents (Keith-Spiegel & Koocher, 1985). Of course, the concept of parental consent assumes the parent or guardian has the best interest of the child in mind. Unfortunately, the parent may not be competent to evaluate the best interest of the child. In such a case, the court can be petitioned to appoint a guardian ad litem that would stand as an advocate for the child. Typically, this action is not necessary (DeKraai & Sales, 1991).

Although minors are usually not granted the right of informed consent, several studies have demonstrated that minors may indeed be capable of providing it (Hall & Lin, 1995). It is here where the scope of legality ends and ethical implications evaluate a child’s capabilities for consent. Why even bother evaluating a child’s capability for consent? The importance of allowing any capable minor to provide consent is supported by many in the field of psychology. This support stems from the concept that a lack of consent or control in the therapeutic process debilitates the relationship and inhibits the individual growth of the child (Glenn, 1980; Levine et al., 1993). The law does not acknowledge the importance of the child’s development of self-determination.

Lee (as cited in Varhely & Cowles, 1991) concluded there is a significant difference between a parents evaluation of their child’s decision making capabilities and that child’s self-evaluation of her decision making capabilities. The child rated ability higher that did the parents. The question then is, "Can a minor actually possess decision making capabilities?" In other words, "At what age is a child competent to provide consent?" Competence is defined as when an "individual is able to understand sufficiently to make an autonomous decision" (Levine et al., 1993, p.110). In an attempt to provide a conclusive answer to the question of competence, many in the field have approached the single question through the evaluation of a child’s capabilities within the three areas of consent: knowing, intelligence, and voluntariness. This angle of determining competency eradicates the determinant of age as a proxy for competence and incorporates a more fluid and comprehensive approach.

"Knowing consent" constitutes one’s understanding of the semantic content. This understanding is tested by requesting that the client paraphrase in her or his own words the information the clinician has provided (Grisso & Vierling, 1978). Typically, children in grades 5-12 "have a vague knowledge at best about what psychologists do" (Keith-Spiegel & Koocher, 1985, p. 104). Keith-Spiegel and Koocher (1985) suggest children prepared for therapy are less likely to terminate treatment prematurely and are judged by the clinician to be less disturbed.

Not only must the child be capable of verbally understanding the information presented by the clinician, the child must also be able to make intelligent decisions based upon this information. "Intelligent consent" is not merely acquiescing; it is an active process composed of many steps. Based upon the role intelligence plays in an individuals capacity to provide informed consent, Glenn (1980) proposes the use of mental age rather than chronological age to determine competency. This suggestion may be just as narrow in its focus as the legal standpoint (that a given age unequivocally provides a standard for competence or incompetence). For an individual to competently provided "intelligent consent," the following must be present: 1) capability to attend to task; 2) capability to delay response in order to process information; 3) possess cognitively complex processing ability; 4) capability to weigh treatment benefits and risks; 5) capability to reason both inductively and deductively (Grisso, 1978; Hall & Lin, 1995).

Belter and Grisso (1984) conducted a study designed to examine whether informing minors of their rights (knowledge) would have an effect on their ability to recognize when their rights were violated and their ability to take the appropriate action to protect themselves (intelligence). The results indicate the children below the age of 10 should be assumed unable to protect their own rights. Children over the age of 15 proved to be competent in self-protecting their rights. Lastly, children between the ages of 10 and 15 are developing the capability to self-protect but should not be assumed competent in this area.

Adelman, Lusk, Alvarez, and Acosta (1985) conducted a study which also examined a minor’s capacity to provide "intelligent consent." This study evaluated minor’s (ages 10-19) capability to make treatment decisions. Adelman et al. (1985) conclude "both our research and clinical findings indicate that many minors not only have a willingness and basic competence to join in making treatment decisions, but they are interested in improving skills related to such participation as well" (p. 433).

The final component of competence is voluntariness. The concept of "voluntary consent" encompasses the degree to which an individual is autonomously provides consent. Autonomy is "personal self-governance: personal rule of the self by adequate understanding, while remaining free from controlling inferences by others and from personal limitations that prevent choice" (Faden & Beauchamp as cited in Levine et al., 1993, p. 83). Issues which often impede a child’s strive toward autonomy are parental and professional influences, desire for approval, compliance, conformity, and the child’s direct fight against conformity. Pre- and early adolescents tend to conform more to external influences than other age groups. It is important to note that many adults also succumb to the same external influences.

Pearce (1994) incorporates the previous concepts and developed suggestions for evaluating the competence of a minor to consent. First, the child must possess a clear concept of self in relation to others. The child must also provide a clear understanding of his or her disorder and treatment implications. Third, both risks and benefits must be understood. Finally, these risks and benefits must be understood in relation to the influence of time.

Grisso & Vierling (1978) base their suggestions upon chronological age and Piaget’s cognitive developmental stages. Typically, no child under the age of 11 is competent to provide informed consent. Once a child has reached 15 years of age, it is probable he or she is competent to provide consent. These age stipulations would indicate that between the ages of 11 and 15 occurs a transitional period during which a child may or may not comprehend the necessary elements required to provide informed consent. Melton (1981) agrees with the age of fifteen being the typical age at which minors are competent to provide consent.

According to Varhely and Cowles (1991), regardless of legal and ethical obligations, a child should always be provided with the most opportunity possible to exercise their decisional rights. That is, in any opportunity regardless of how small, the child should be provided with control over his or her own path. This opportunity will increase not only the therapeutic alliance but also the child’s capacity for self-determination (Levine et al., 1993).

This opportunity is often provided through informed assent. DeKraai and Sales (1991, p. 855) define assent as "affirmative agreement by a youth to participate even though the youth lacks the legal capacity to consent, and is generally required when youths are determined incapable of providing assent." Margolin (1982) suggests a child over the age of 7 provide assent. Despite the virtuous intentions of assent, none of the literature reviewed provided suggestions for placating a child who refuses to provide assent. In such a case, the clinician may be deemed untrustworthy by the client as she or he will be required to continue in therapy despite dissent. This dilemma in itself raises ethical questions.

When the time comes for a clinician to make the final decision regarding the ability of a minor to provide informed consent, Hall and Lin (1995) suggest approaching this decision from a metaethical approach. Each child should be evaluated per case therefore the clinician relies upon an intuitive level of moral reasoning. Although this proposal may sound philosophically upright, clinicians are still bound by distinct legal obligations both to the child and the child’s parents. These legal obligations must take precedence over the personal impressions of the clinician.

References

Adelman, H.S., Lusk, R., Alvarez, V., & Acosta, N.K. (1985). Competence of minors to understand, evaluate, and communicate about their psychoeducational problems. Professional Psychology: Research and Practice,16(3), 426-434.

American Psychological Association. (1992). Ethical principles of psychologists and code of conduct. American Psychologist, 47, 1597-1611.

Belter, R.W., & Grisso, T. (1984). Children’s recognition of rights violations in counseling. Professional Psychology: Research and Practice, 15(6), 899-910.

Broome, M.E., & Stieglitz, K.A. (1992). The consent process and children. Research in Nursing and Health, 15, 147-152.

DeKraai, M.B., & Sales, B.D. (1991). Liability in child therapy and research. Journal of Consulting and Clinical Psychology,59(6), 853-860.

Glenn, C.M. (1980). Ethical issues in the practice of child psychotherapy. Professional Psychology, 11(4), 613-619.

Grisso, T., & Vierling, L. (1978). Minors’ consent to treatment: A developmental perspective. Professional Psychology, 9, 412-426.

Hall, A.S., & Lin, M.-J. (1995). Theory and practice of children’s rights: Implications for mental health counselors. Journal of Mental Health Counseling, 17(1), 63-80.

Hendrix, D.H. (1991). Ethics and intrafamily confidentiality in counseling with children. Journal of Mental Health Counseling, 13(3), 323-333.

Jensen, P.S., Josephson, A.M., & Frey, J.,III. (1989). Informed consent as a framework for treatment: Ethical and therapeutic considerations. American Journal of Psychotherapy, 63(3), 378-387.

Keith-Spiegel, P., & Koocher, G.P. (1985). Ethics in Psychology: Professional Standards and Cases. Hillsdale, NJ: Lawrence Erlbaum Associates.

Levine, M., Anderson, E., Ferretti, L., & Steinberg, K. (1993). Legal and ethical issues affecting clinical child psychology. In T.H. Ollendick, & R.J. Prinz (Eds.), Advances in Clinical Child Psychology: Volume 15 (pp. 81-117). New York: Plenum Press.

Margolin, G. (1982). Ethical and legal considerations in marital and family therapy. American Psychologist, 37(7), 788-801.

Melton, G.B. (1981). Children’s participation in treatment planning: Psychological and legal issues. Professional Psychology, 12(2), 246-252.

Pearce, J. (1994). Consent to treatment during childhood: The assessment of competence and avoidance of conflict. British Journal of Psychiatry, 165, 713-716.

Varhely, S.C., & Cowles, J. (1991). Counselor self-awareness and client confidentiality: A relationship revisited. Elementary School and Guidance Counseling, 25, 269-276.

The top photograph was by Taylor Deas-Melesh on Unsplash. We are grateful.

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