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2 COMPETENCY AND CONSEQUENCES: DISCUSSION OF FOREHAND AND CICCONE'S CHAPTER
Huffine, Charles
Forehand and Ciccone have clearly done a service to the field by giving us a thoughtful and scholarly essay on competency and consequences. They do an excellent job of summarizing the many studies that provide scientific support for adolescents' capacity to give informed consent. They present fascinating data from studies designed to test adolescents' abilities in relation to legal definitions of competency on the ability to make medical decisions. Although cognitive tests suggest that adolescents demonstrate maturity with regard to decision making, studies of brain physiology and anatomy in adolescence seem to point in the opposite direction, indicating that the adolescent brain is not fully developed.
What does this mean in terms of society's obligations to adolescents? I worry that the research findings imply a justification for the claims of some jurists and developmental theorists that adolescents are too immature in judgment and character to exercise meaningful informed consent. Oversimplification or generalization of preliminary results obtained in the research laboratory can lead to glib and shallow claims regarding adolescents' capacities.
For example, we need to be very clear on what is being tested-and very clear on our value judgments. In the Weithorn and Campbell (1982) study cited by Forehand and Ciccone, does the body image factor that tilted the 14-year-olds on one of their tests imply bad judgment or does it result from a value or fear that is common in younger adolescents but not held so strongly by older youth? Perhaps health care providers making medical decisions in collaboration with younger teens should be more attentive to body image issues.
Forehand and Ciccone are appropriately careful in laying out the complexity of assessing maturity as it relates to the ability to exercise competence in medical decision-making. Although this research has provided much new knowledge, we are not yet able to account for all of the factors involved in adolescents' thinking.
In addition to the arguments that arise from these studies, there are other important reasons why adolescents should have the right to make decisions regarding their medical care (particularly mental health and substance abuse treatment). Decision-making plays a crucial role in facilitating healthy growth and development. The right to consent to (as well as to refuse) treatment is a basic human right. At the same time, adolescent decision-making takes place within a social context, and adolescents must be given the appropriate support to make good decisions, with safeguards in place if they are unable to do so.
ADOLESCENT DEVELOPMENT AND DECISION MAKING
Adolescence is a relatively recent phenomenon in human history and is not defined primarily by either physiology or psychology. At its core, it is a social developmental process (Huffine, 1999), driven in part by emerging sexuality and accelerated by the social climate of the late 20th and early 21st centuries. Rakoff (1998), in his observations of the historical rise of adolescence, notes the advantages to Western society of youth who, through the adolescent social developmental process, develop a capacity for exercising choice, a strong personal identity, and progressive independence from the family of origin. Although the opportunity to choose means the possibility of making bad choices, independent choice making is crucial to the development of a distinct personal identity.
The modern social environment offers adolescents opportunities to make many choices, regardless of how well they are prepared or supported. Adolescent subcultures in our communities help teenagers cope with developmental stresses, but they also provide many ways for teenagers to harm themselves through making poor choices, including substance abuse and many other risky behaviors sanctioned in youth culture. Parents have no sure way of protecting their adolescent children from such dangers, but strong positive family support precludes most youth from having to make choices about substance abuse or reproductive issues without a grounding in family values and direct parental guidance.
CONSENT-A HUMAN RIGHTS ISSUE
The issue of consent is a part of the larger issue of child rights. Our society is ambivalent about whether children should have rights as humans. Legal protections for children, equivalent to those enjoyed by adults under our constitution, are seen as in conflict with other principles and values, such as that of the sanctity and privacy of the family. Mohr (2002) has documented the law's ambivalence regarding child rights and the law's failure, in most states, to look at current scientific and social concepts regarding the development of children as a basis for decision making regarding their rights.
In addition, Mohr' s (2002) review of the scientific evidence indicates that, by the age of 14, the average adolescent is able to make informed decisions regarding his or her health care at least as well as an 18year-old. Neither adolescents nor young adults do well without social support. Mohr also notes that a substantial number of persons have not achieved the ability to meaningfully exercise informed consent, or any other social judgments, by age 18, or even far into their third decade of life.
THE SOCIAL VALUE OF PROTECTING ADOLESCENTS' RIGHTS WITH REGARD TO TREATMENT DECISIONS
Requiring Consent Protects Against Inappropriate Treatment
Mandating that adolescents' participation be voluntary has an additional benefit, in that it assures some protection for teenagers from wellintended but sometimes devastatingly wrong treatment programs. Even good treatments that are forced on postpubertal youth without their consent can have negative consequences by embittering young persons toward any future care. In addition, there is essentially no clear evidence for the efficacy of forced treatment with adolescents.
Involuntary placement of youth in residential facilities often results from a failure of the outpatient system. Even worse, when there is no viable alternative, involuntary placement may perpetuate substandard treatment. Having adequate safeguards to limit involuntary admissions is one way to prevent too much reliance on inpatient treatment. A far better alternative is to create a well-functioning community-based system of care. Such systems of care are more respectful of youth and families, more humane, and more effective (Vander Stoep, Williams, and Huffine, 2002).
Confidentiality Facilitates Treatment seeking
The right to have treatment be confidential is linked to the right to seek and obtain treatment without parental consent. Some youth with emotional and behavioral problems have experienced family conflict or abuse that aggravated underlying emotional problems. Other youth are hesitant to disclose problems because they fear their parents' reactions. They fear that their problems may hurt their parents too much, that these may be the final stress that could lead to a divorce or aggravate a parent's own problems. For these youth, rights to confidentiality are critical when seeking professionals as alternative adult mentors. It is of benefit to our society to assure support for youth as they deal with the consequences of problems resulting from risky decisions. Parents also need support in guiding their adolescents to assume responsibility for their choices. A trusted professional who has an independent confidential relationship with the child can support the parents' wish to keep their child safe.
At times, a youth may need to begin the treatment process with an alternative safe adult, such as a mental health counselor, who can provide assurances that what is discussed will not blow up in the adolescent's face (as a teen usually fears), should those discussions be revealed to his or her parents. Except in extreme cases of abuse and neglect, parents must eventually be approached by the youth and the professional mentor and drawn into the process. This can only be accomplished in a climate of respect and collaboration. Parents and children caught in adolescent conflicts depend on those offering them services to build such a climate.
Recognition of these principles in laws regarding mental health, substance abuse, and reproductive health have made Washington State, with its ago of consent for mental health and substance abuse treatment set at age 13, one of the more progressive states in the area of balancing child and parental rights and in setting a legal climate that supports family reconciliation.
Problems in Exercising Social Judgment Can Be Handled by Families with Appropriate Support
It is crucial to keep in mind that most parents, most of the time, through clearly demonstrated values and the strength of family relationships, can adequately protect their youth from the risks to children in an open society. Youth exercising poor judgment and overstepping the line of adventure and experimentation will get into trouble with their parents. Parents most often will skillfully set limits that communicate family values and expectations to their children. Parents have enormous power over the lives of their children and the ability to set contingencies meaningful to their youth far short of arrest, court commitment, or detention under legal mandates. Most young people want to be safe and willingly accept their parents' rules and values. Teens from 13 to 18 years old will usually respect their families' mandates even if they initially appear angry and resistant, and even if they have underlying mental illnesses.
The family has a critical role in intervening if a youth shows signs of a mental illness that impairs judgment. Parents' confronting their adolescent and persuading him or her to get professional help are crucial factors in assuring a positive treatment outcome in such cases. This is true whether the child is 13, 16, or a young adult. Parental support most often takes the form of respectful guidance, but with very troubled teens it may involve exercising more intrusive contingencies. In extreme situations involving great risk to the youth, parents can mobilize involuntary treatment laws to contain their troubled children. Of course, when adolescents have broken the law, they are subject to the legal processes of the juvenile justice system. We should ensure that parents have adequate respect and rights in each of these intervention modalities, especially the juvenile justice system. We must ensure that our laws fulfill their intent of defining the outside limits that will support parents in the task of guiding their adolescents through episodes of mental illness or a difficult adolescent developmental process.
THE APPARENT PARADOX OF LEGAL PROTECTIONS FOR JUVENILE OFFENDERS
Protecting adolescent offenders (even those who commit capital crimes) against the consequences that adults would face for the same crimes seems to contradict the notion of allowing teens more say in decisions regarding their treatment. On one hand, we are viewing them as if they are not as responsible as adults for what they do; on the other, we are giving them the right to make important decisions for themselves. However, a close examination of adolescent decision-making leads to resolution of what is an apparent paradox-treating adolescent offenders differently from adult criminals, while according adolescents similar rights to those of adults with respect to medical decisions.
How Decision Making About Treatment Differs From Judgment About Committing Crimes
The reality that young people are capable of deciding whether or not to participate in mental health treatment does not mean that they must be held to the same standards of accountability as are adults for all aspects of their lives. Decisions regarding whether to accept inpatient or outpatient psychiatric treatment are very different from those decisions that are the basis of much youthful crime. Indeed, much of impulsive antisocial behavior can hardly be said to involve decision making at all; it is often a reflexive reaction to circumstances and often involves misperceptions of danger or threat. This fact is the basis for the notion of diminished culpability raised in arguments against the death penalty for those who commit capital crimes as teenagers. Brain research is showing that different pathways are involved in judgmentsdepending on whether emotional arousal is present or not, and that adolescents tend to rely much more on brain pathways that convey affective meaning than on those that analyze and objectify situations (Baird et al, 1999; Gur, 2002).
PARADOX NOT REALLY A PARADOX
It appears to me, based on the above research, that the apparent paradox can be resolved by recognizing that there are varying levels of maturity in an individual adolescent; that is, that a teen's ability to think through the implications of a certain behavior varies according to the social context and his or her emotional state. Although expectations should be set for appropriate and autonomous behavior in teens, these expectations (and the level of consequences associated with failure to meet them) should be based on an adolescent's developmental level as well as the seriousness of the deviant behavior. Ideally, consequences for deviant behavior should have a corrective effect, reducing or eliminating undesired behavior. The legal system, which is based on objective, measurable, and incontrovertible definitions, has difficulty with variables such as gradations in maturity. This difficulty, plus public perceptions that correction has not worked, have led to reliance on the criminal acts themselves as the main determinant of consequences. Public frustration with uninformed, poor management of judicial discretion has led to mandatory sentencing, and thus the imposition of the death penalty and lengthy incarcerations. Severe consequences for serious crimes are clearly in order, but these should be less than those meted out to adults. Forehand and Ciccone's summary of current research on the neurophysiology of adolescent brain development provides ample justification for this position.
EXPERIENCE IN WASHINGTON STATE
How does making 13 the age of consent actually work? My experience with teenage decision making for mental health treatment has been in Washington State, where adolescents may legally obtain mental health treatment, substance abuse treatment, and reproductive health care without parental consent at age 13. The confidentiality of such treatment is also assured, and a signed release is required even to share information with parents. This sets Washington apart from most other states. Interpretations of these laws have extended the rights of young adolescents to include the right to refuse treatment in outpatient as well as inpatient programs. Laws addressing involuntary commitment, as well as At Risk Youth (ARY) and Children In Need of Services (CHINS) statutes, provide for parents or others to obtain necessary services when children are deemed incapable of giving consent or when they are clearly in need of having the decision-making process taken out of their hands. These processes protect the basic right to consent through legal review processes.
The impetus behind these laws stems from discussion of the rights of young women to make decisions regarding issues of pregnancy. These laws emerged from the foment over reproductive rights in the 1960s and 1970s. They have a coherence that derives from the fact that, on average, most young people are capable of impregnating or becoming pregnant at age 13.
Opposition to Existing Laws
These laws have not been without controversy. Some feel that the laws in Washington State have limited the ability of parents, service providers, and state officials to force teens into outpatient care and inpatient facilities when their resistance to care places them in harm's way.
Recent modifications to the consent laws aimed at ARY/CHINS youth in need of substance abuse treatment have allowed parents, in certain circumstances, to take the initiative to place a child in an inpatient or residential rehabilitation program. Despite these changes, few youth have been placed in drug and alcohol facilities directly by parents. Attempts to use this modification to the consent law have been ineffective because of hospitals' refusal to honor parental requests for fear of lawsuits. Attempts to expand the ARY/CHINS laws have failed because of court challenges.
Recently, proposals have been made to change the age of consent for both mental health and substance abuse treatment from 13 to 16 while giving certain rights to youth in that age group to seek and to consent to treatment on their own. This proposed change would clearly take away the right to refuse treatment, particularly locked inpatient or residential treatment.
Support for Existing Laws
Parents and guardians of very troubled youth (with the support of courts under existing laws) are able to convince their children to enter treatment facilities voluntarily, even when the youth are informed of their rights to refuse. They are able to influence their young people with contingencies that are compelling and reflect a sincere effort to do what is best for the youth in trouble. Child and adolescent advocates have made convincing arguments that youth with abusive and overbearing parents might face harm if such teens and the counselors from whom they seek help are prevented from engaging in confidential relationships.
Although support for existing laws is mixed among parent advocates, many believe that the true factors that limit access to care for their children are inadequate or absent resources. Many parents are mobilizing efforts to stop funding cutbacks for outpatient services and system reforms rather then demanding that the state fund expensive residential treatment facilities.
The ability of youth to refuse care has placed a limit in Washington State on the use of residential treatment. Given the lack of evidence for the efficacy of long-term forced residential care for disturbed youth, Washington law has had the positive consequence of forcing the state to look more closely at innovative, more collaborative modes of care such as system-of-care concepts that champion the wraparound process, community building, family empowerment, and coordinated community-based treatment.
CONCLUSION
It is troubling to many that teenagers as young as age 13 are expected to exercise judgment regarding such issues as sex, drugs, and mental health problems as if they were adults. Clearly, they are not ready for an abrupt assumption of such responsibilities on their 13th birthdays. The capacity for making thoughtful decisions regarding health issues develops incrementally as a function of many factors in an adolescent' s life. The age at which the capacity for medical decision making is adequate is not 12, according to the research quoted by Forehand and Ciccone; it may be 13, or even 14. Young people well into their 20s need the support and advice of caring elders to maximize their ability to exercise reasoned social judgments. Those impaired by mental illness may never be prepared to make good decisions regarding their care-not at 13 or 16 or as adults.
If adolescents are held to a maturity standard that includes formal abstract thinking, we could justify using the results of IQ tests to determine the capacity for consent and have standards for withdrawing consent from many troubled older adults and other less fortunate members of our society as well. What should be emphasized over and over again is that the standard for informed consent is best kept fairly low in a free society. By living with the burden of demanding informed consent for health care, we are obliging ourselves as a society to more carefully explain and find ways to work around oppositionality in all such groups of citizens. Adolescents deserve such respect. If a mental illness or other factor impairs an adolescent to a degree that clearly places him or her beneath that low standard, then a formal determination of competency should be done, just as it would be for a cognitively impaired adult.
Nurturing the capacity for decision making by bestowing both rights and graded and advancing responsibility enhances the adolescent developmental process. Clearly, if teens are presumed incompetent by parents, their community, and their society through the law, adolescents will likely remain less competent than they would if errors were made in the other direction. It is better to presume competence and offer the supports to assure that this competence can manifest. This is a major social policy issue that polarizes many in our communities. Policymakers act from personal experience and subsequent biases on both sides of this issue. Not only more research but also cogent application of that research is needed, application through a theoretical framework that defines the nature of what society is trying to achieve through the invention of adolescence.
The relatively low standard for granting the right to consent to adolescents at age 13 or 14 does not presume a fully mature capacity for exercising judgment, only one that is good enough to meet the standards afforded all citizens in a free society. The standards for presuming full adult responsibility for criminal acts must be much higher and take into account current research on brain development. Those standards must incorporate the concepts of diminished responsibility and measured legal consequences tailored to an individual youth. These have traditionally been difficult for the law, which, as Forehand and Ciccone note, has "disdain for degrees."
It should be our job as therapists and advocates for adolescents to counter the prejudicial assumptions that adolescents are (at least temporarily) monstrous beings who, given any slack, will self-destruct and create mayhem in our communities. We should advocate for states to give teenagers some essential human rights and dignity by granting them the right to consent to their health care. We should also hold adolescents responsible for their acts and choices, but in a measured way that takes into account their developmental status, their immature brain physiology, and their needs for social learning. Giving them the right to consent to treatment and measured consequences for harmful acts should be seen as a way of facilitating emotional growth, a nudge toward taking responsibility.
REFERENCES
Baird, A. A., Gruber, S. A., Fein, D. ?., Maas, L. C., Steingard, R. J., Renshaw, P. F., Cohen, B. M. & Yurgelun-Todd, D. A. (1999), Functional magnetic resonance imaging of facial affect recognition in children and adolescents. J. Amer. Acad. Child Adolesc. Psychiat., 38:195-199.
Gur, R. (2002), Declaration of Ruben C. Gur, Ph. D., in Patterson v Texas, Petition for Writ of Certiorari to U.S. Supreme Court, J. Gary Hart, Counsel. Available at
http://www/abanet.org/crimjust/juvjus/ Gur%20affidavit.pdf (accessed April 7, 2004).
Huffine, C. W. (1999), Social developmental issues in adolescents. Presented at meeting of the American Psychiatric Association Institute on Psychiatric Services, October, New Orleans.
Mohr, W. K. (2002), The muffled voice of the child: American health care and children's rights. Unpublished manuscript.
Rakoff, V. (1998), Nietzsche and the Romantic construction of adolescence. Adolescent Psychiatry: Developmental and Clinical Studies, 22:39-56. Hillsdale, NJ: The Analytic Press.
Vander Stoep, A., Williams, M. & Huffine, C. (2002), School and community approaches. In: Providing Mental Health Services to Youth Where They Are: School- and Community-Based Approaches, ed. H. S. Ghuman, M. D. Weist & R. M. Sarles. New York: BrunnerRoutledge, pp. 163-189.
Weithorn, L. & Campbell, S. (1982), Competency of children and adolescents to make informed treatment decisions. Child Develop., 53:1589-1598.
Copyright Analytic Press 2004
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