Imagine a 12-year-old patient who has just been diagnosed with cancer. The patient’s parents, no doubt worried sick, take him to an oncologist for further evaluation. After examination, the physician determines that chemotherapy is the appropriate treatment and explains two chemotherapy options. The first option requires a blood transfusion and has a 40 percent success rate. The second option does not require a blood transfusion but has a 20 percent success rate. Based on the relative success rates, the physician recommends the first option.

The patient and his parents are devout Jehovah’s Witnesses, however, and believe that the Bible prohibits blood transfusions. The parents explain that Jehovah’s Witnesses who accept transfusions may be shunned within their religious community. As such, the patient’s parents refuse to consent to the blood transfusion.

What happens now? Can the parents withhold consent for what could be life-saving treatment for their son? Are there any consequences for the parents for withholding consent? Should the physician ask the 12-year-old patient what he wants? Will that opinion matter?

The answers to these questions lie in the intersection of law, medical science, and ethics that is medical decision-making for minors. In Wisconsin, the law treats minors as being incapable of making health care decisions, with a few limited exceptions. This fact sometimes leads to difficult situations in which other people, namely parents, health care providers, or lawyers, make medical decisions on behalf of the child.

The Wisconsin Supreme Court ventured into this intersection in two recent cases. In State v. Neumann,¹ the court upheld two parents’ homicide convictions for withholding necessary medical treatment for their ailing daughter. In Dane County v. Sheila W. (In the Interest of Sheila W.),² the court declined to decide whether to adopt the “mature minor” doctrine for medical decision-making in Wisconsin. The subject matter of these two cases differed, but both cases struggled with the same question: how should medical decisions be made for individuals who are not legally able to make those decisions themselves?

Parents Have the Right to Consent for Their Child’s Medical Care

Traditionally, minors were considered to be incapable of providing legal consent to medical treatment. This meant that parental consent for medical treatment of children was required in almost all cases. This also meant that parents had the authority to withhold consent for medical treatment for their children. The only traditional limit on parental authority to withhold consent for medical treatment for their children was in life-and-death situations in which a viable and medically accepted treatment was available.

This was true even when parents attempted to withhold consent for life-saving treatment for their children on religious grounds. The law allows individuals to make determinations for themselves based on their religious beliefs, but it does not allow parents to make life-and-death decisions for their child based on the parents’ personal beliefs. The U.S. Supreme Court aptly summarized this principle in a 1944 decision, Prince v. Massachusetts:

“Parents may be free to become martyrs themselves. But it does not follow [that] they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”³

The common-law understanding that minors are legally incapable of making medical decisions and that parents have the right to consent to treatment, short of life-saving or emergent treatment, endures today. This rule applies to any patient below the age of majority, which is 18 years in Wisconsin⁴ and most other states. The rationale is that parents typically are the best able to determine what medical treatment is in their child’s best interest and are more competent to make informed medical decisions than their child. Thus, the law vests parents with the right in the vast majority of cases to sort among alternative treatments and select the best medical treatment based on their subjective assessment of their child’s best interests.

Minors Can Sometimes Consent to Their Own Care and Treatment

There are, however, some exceptions to the general rule of parental consent for minor medical care. For instance, some states allow “emancipated” or “mature” minors to make their own medical decisions. An emancipated minor is one who has become legally independent from his or her parents because of marriage or other circumstances.⁵ A mature minor is one who is deemed to have sufficient ability to understand the medical treatment offered and provide true informed consent. The rationale for these exceptions is that certain minors, despite their age, possess the requisite social, mental, and psychological abilities to make their own medical decisions.

Other exceptions have been carved from the general rule based on the belief that requiring parental consent in certain sensitive situations may reduce the likelihood that the minor would seek medical treatment. There are statutory exceptions to the general parental-consent rule for screening for sensitive medical conditions such as sexually transmitted diseases,⁶ HIV,⁷ and pregnancy,⁸ as well as for services related to alcohol or other drug abuse.⁹ There is also a “judicial bypass” statute for a minor seeking an abortion, whereby the minor obtains “consent” for the abortion from the circuit court rather than her parents.¹⁰ These statutory exceptions address specific conditions and do not override the general rule of parental consent.

Parents Have a Duty to Provide Necessary Medical Care

While the law provides parents the right to consent to medical treatment for their child, it also imposes on parents the duty to provide necessary medical treatment for their child. In other words, the law has developed mechanisms to ensure that parents appropriately exercise their decision-making responsibilities on behalf of their children. For example, caregivers and other professionals are statutorily required to report to law enforcement authorities suspected child neglect, which may include a parent’s decision to withhold medical care.¹¹ In addition, a state statute allows a circuit court to take jurisdiction over a child if his or her parent neglects, refuses, or is unable to provide necessary medical care to the child.¹² And, as shown in greater detail below, there may be criminal liability for a parent who recklessly or intentionally withholds medical treatment from his or her child.

The Neumann and Sheila W. decisions fall within this legal framework. In Neumann, the Wisconsin Supreme Court affirmed the parents’ homicide convictions for withholding medical treatment necessary to treat their ailing daughter. In Sheila W., the court declined to consider whether to adopt the mature-minor exception to the general rule of parental consent to medical treatment. Each decision is outlined below.

Parent’s Duty to Provide Necessary Medical Treatment

In Neumann, the Wisconsin Supreme Court considered whether parents could be criminally liable for using prayer healing in lieu of providing medical treatment for their sick child. Eleven-year-old Kara died from diabetic ketoacidosis resulting from untreated juvenile diabetes.¹³ Kara died after her father and mother chose to treat Kara’s undiagnosed and deteriorating condition with prayer rather than medicine.¹⁴ Kara’s parents are Pentecostals and believe that there are spiritual causes to sickness. To the Neumanns, seeking out medical treatment would be “putting the doctor before God,” amounting to idolatry and sin.

The evidence at trial showed that for several weeks before her death, Kara had suffered gradually worsening symptoms of her diabetes, including frequent thirst, dehydration, and exhaustion. The day before she died, Kara’s mother discovered that Kara was pale and her legs were blue and skinny. Kara’s condition rapidly deteriorated to the point that she was unable to walk, talk, or hold herself up. Eventually she appeared as though she was in a coma.¹⁵ Paramedics were eventually alerted to Kara’s condition and arrived to find the Neumanns praying over Kara’s extremely skinny, lifeless body. After Kara died, each parent was charged with and convicted of second-degree reckless homicide.¹⁶

At trial, an emergency room physician testified that a child suffering from diabetic ketoacidosis can be treated and the possibility of survival is very high. A pediatric endocrinologist testified that patients with diabetic ketoacidosis who are treated have a 99.8 percent survival rate. He stated further that Kara’s condition was treatable and that her chances for survival were high until “well into the day of her death.”¹⁷

The Neumanns brought several challenges to their convictions, including a challenge to the trial court’s jury instruction that parents had a legal duty to provide medical care to their children. They argued that there was no such legal duty and that the instruction violated their constitutional right as parents to direct the care of their child. The court of appeals certified the Neumanns’ appeals to the supreme court, which accepted certification.

In its decision, the supreme court pointed to numerous statutes and previous decisions that establish a parent’s legal duty to support and protect his or her child, including providing medical care when necessary.¹⁸ The court then rejected the Neumanns’ constitutional argument and wrote that “[t]he parents’ fundamental right to make decisions for their children about religion and medical care does not prevent the State from imposing criminal liability on a parent who fails to protect the child when the parent has a legal duty to act.”¹⁹ The court affirmed the convictions and, in doing so, reaffirmed that parents have a legal duty to provide medical treatment for their children when necessary.

The Mature-Minor Exception

In Sheila W., the Wisconsin Supreme Court considered whether to adopt the mature-minor exception to the general rule of parental consent to medical treatment for minors. Fifteen-year-old Sheila was diagnosed with aplastic anemia, a life-threatening illness in which the immune system attacks the bone marrow, preventing the body from producing new blood cells. Sheila’s doctors determined that she needed blood transfusions and risked death without the treatment.²⁰

Sheila and her family are Jehovah’s Witnesses, who believe that God prohibits blood transfusions. For Jehovah’s Witnesses, the issue of blood transfusions is “a religious issue rather than a medical one.” Sheila’s parents deferred to Sheila and indicated that they believed her to be mature enough to make her own decision whether to accept or refuse the blood transfusion.²¹

Sheila refused to consent to the transfusions. She told her physician that she “would rather die not receiving the transfusions than survive, but have the stigma of having received a transfusion.” Sheila later said that a blood transfusion would be “devastating to me mentally and physically” because it is “my body, my belief, my wishes.”²²

Dane County filed a petition for child protective services, and the circuit court later appointed a guardian for Sheila. The guardian consented to the blood transfusions, which were ultimately performed. Sheila opposed the guardian appointment, but the order appointing the guardian expired while the case was pending before the court of appeals. The court of appeals dismissed the appeal as moot.²³ Sheila appealed the decision to the supreme court and urged the court to disregard mootness and recognize the mature-minor doctrine as part of Wisconsin law.²⁴ In a per curiam opinion, the supreme court affirmed the decision of the court of appeals and dismissed the appeal as moot.

Justice Prosser wrote a concurring opinion outlining Sheila’s argument that the court adopt the mature-minor doctrine. “Sheila describes the mature minor doctrine as an exception to the general rule requiring parents to give consent to medical treatment for their children. Under the doctrine, older minors can be permitted to independently make medical treatment decisions involving their own care if they demonstrate sufficient understanding and appreciation of the nature and consequences of treatment despite their chronological age.”²⁵ “The court’s recognition of the mature minor doctrine would presumably enable Sheila to refuse any future blood transfusions regardless of the consequences.”²⁶

Justice Prosser then recounted the reasons why, in his view, the court should not provide a decision with respect to the mature-minor doctrine in Sheila’s case. First, Justice Prosser noted the variation among the jurisdictions that had adopted some version of the mature-minor doctrine.²⁷ After recounting the approaches taken by other jurisdictions, Justice Prosser wrote that “[a]sking this court to enshrine Sheila’s view into our law is asking the court to make profoundly important policy determinations about the rights of minors as well as the role of parents and the role of the state without statutory guidance. It is asking this court to make up the law on its own initiative.”²⁸ He concluded that the decision to adopt the mature-minor doctrine, and the contours of that doctrine, is a decision best left to the Wisconsin Legislature.²⁹

Resolving Decision-Making Disagreements Outside the Legal System

The Neumann and Sheila W. decisions dramatically highlight some of the potential difficulties that may arise in the context of medical decision-making for minors. So will the Wisconsin Legislature answer Justice Prosser’s call to action and consider potential changes to the relevant laws? Perhaps, but does it need to? This remains unlikely unless the stakeholders – parents, health care providers, attorneys, and judges – identify recurring problems requiring a legislative solution.

The dramatic fact patterns set forth in Neumann and Sheila W. are extremely rare occurrences in health care today. Every year, health care providers across the state have hundreds of thousands, if not millions, of medical interactions with minors and their parents. These medical interactions almost uniformly pass without disagreement. This is in large part because health care providers have adopted policies and procedures designed to obtain parental consent when necessary and minor-patient assent as often as possible. As a result, significant collisions between the best interests of the minor, the expressed wishes of the parents, and the recommended course of treatment by the health care provider are exceedingly rare.

Moreover, the law already provides tools to address the rare impasse or problem. Medical-neglect statutes create a procedure by which the county can determine whether parents are providing necessary medical treatment and provide it for minors if the parents are unable or unwilling to do so. As shown in Sheila W., a circuit court can appoint a guardian to make medical decisions when parents are unable or unwilling to do so. And, as shown in Neumann, parents may face criminal liability for their failure to provide necessary medical treatment.

The vast majority of hard cases involving medical decision-making for minors can be resolved without resorting to these tools or the courts. Instead, they are best resolved by the parents, the child, and the health care provider deciding on the best course of action based on the facts presented.

Conclusion

Medical decision-making for minors is a process at the intersection of the law, medical sciences, and ethics. The law gives us obligations and defines what we may do. Medical science gives us treatment options and defines what we can do. Ethics, that balancing of legal obligations and medical options along with social, cultural, religious and moral considerations, informs us of what we should do. We attorneys best serve our clients by helping them navigate this intersection.

Endnotes

¹ 2013 WI 58, 348 Wis. 2d 455, 832 N.W.2d 560.

² Dane Cnty. v. Sheila W. (In the Interest of Sheila W.), 2013 WI 63, 348 Wis. 2d 674, 835 N.W.2d 148.

³ Prince v. Massachusetts, 321 U.S. 158, 170 (1944).

⁴ See Wis. Stat. § 48.02(1d)(2).

⁵ See Wis. Stat. § 48.375(2)(c). Wisconsin does not have a statute expressly allowing emancipated minors to consent to health care.

⁶ See Wis. Stat. § 252.11(1m).

⁷ See Wis. Stat. § 252.15(3m)(c).

⁸ Wisconsin law does not explicitly provide minors with the right to consent to contraceptives, pregnancy testing, or obstetrical care. Nonetheless, the U.S. Supreme Court has declared that the expectation of privacy in matters of reproductive health is a protected “liberty interest” of individuals regardless of age or marital status. See Carey v. Populations Servs. Int’l, 431 U.S. 678 (1977); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).

⁹ See Wis. Stat. § 51.47.

¹⁰ See Wis. Stat. § 48.375.

¹¹ See Wis. Stat. § 48.981.

¹² See Wis. Stat. § 48.13(10).

¹³ 2013 WI 58, ¶ 1, 348 Wis. 2d 455.

¹⁴ Id.

¹⁵ Id. ¶¶ 17-19.

¹⁶ Id. ¶ 1.

¹⁷ Id. ¶¶ 26-29.

¹⁸ Id. ¶¶ 104-111.

¹⁹ Id. ¶ 116.

²⁰ 2013 WI 63, ¶ 12, 348 Wis. 2d 674 (Prosser, J. concurring).

²¹ Id. ¶ 13.

²² Id. ¶ 14.

²³ Id. ¶ 15.

²⁴ Id. ¶ 16.

²⁵ Id.

²⁶ Id.

²⁷ Id. ¶¶ 18-23.

²⁸ Id. ¶ 24.

²⁹ Id. ¶ 39.

³⁰ Neumann, 2013 WI 58, ¶ 81, 348 Wis. 2d 455.