I have been a lonely, and passionate, advocate for lowering the age of consent for teens for healthcare generally, but specifically for mental health and substance abuse treatment. My arguments have been based on evidence that teens, by at least age 14, have been shown to exercise as good an ability to make informed consent for medical care as do 18 and 25 year olds.
By and large an average teen, given clear information and sufficient time to think about it, acts in their own best interest reasonably well. Many don't, but no more frequently then do young adults. This is based on research conducted and reviewed by Weithorn and Campbell and cited by Forehand and Ciccone in an article to be published in the next Annals of Adolescent Psychiatry. In my response to that article, which will also be published in the same Annals, I will argue that the weight of evidence supports youth rights to determine their own care. I will also argue that youth who have committed capital crimes should be treated as less mature due in part to their incomplete brain development. I will cite brain development research, as do Forehand and Ciccone, which supports this contention. Are these two points of view in conflict? I will try to argue why not.
A rather exceptional stand was taken in the 1970's by Washington State regarding youth rights. Their legislature acted to lower the age of consent for mental health and substance abuse treatment to 13. This came on the heels of legislation assuring the right to consent to reproductive healthcare from the time of fertility, a woman’s rights issue with youth rights implications. I have practiced adolescent psychiatry in a social climate influenced by this policy my entire professional life. It seems to me to have had a positive impact on the nature of treatment in our state as it has forced caregivers to focus more on treatment relationships. It certainly has positively shaped my work with youth. These Washington state laws have less to do with the right to obtain mental health or substance abuse treatment independent of parental approval (a right rarely exercised) than with the corollary of the right to consent; the right to refuse care.
The right to refuse is implicit in the right to consent. What this means is that youth can say no to treatment when they have not been convinced that treatment is in their interest. Youth have always been able to avoid out-patient care by not showing up for their ride to their counselor’s office, or by cheeking medications, but in Washington they cannot be summarily locked up in residential treatment programs. In Washington State parents can, and do, exercise control over their adolescents. Empowered parents realize that they have significant influence on their children as they control the resources of the family. They can skillfully create respect, shame, or inspire their youth to be better people. Parents can learn to stay no and to be more watchful, but they can’t place their youth in a hospital or residential program without the consent of their teenager.
Outrageous behavior by teens in their family and community, behavior that scares and offends their parents and other adults, needs to be met with consequences. Social institutions should be, and are, there to support parents in dealing with such difficulties. Schools, courts, police and other state agencies do effectively address the needs of out of control youth. However when their needs seem to warrant being involuntarily placed in a secure facility, such needs must be judged by clear criteria as to whether they meet the states requirements for loss of their basic right to freedom by. Many youth, younger or older then 18, when encouraged by their families, do willingly admit themselves to a hospital for short term acute care in our state. Few youth would willingly agree to accept being locked up for many months in a residential treatment program. In most states, however, youth under 18 can be forced into such locked facilities. For someone who is used to youth having rights regarding treatment, forced placement seems to be an unwarranted abrogation of basic human rights. The legal test for supervening basic rights in a free society has always been a stringent one. Evidence must be clear and compelling.
In Washington, the law defines the compelling reasons for involuntarily admitting a teen in a similar manner to adult commitment laws. There is an additional process defined for “at-risk youth,” which is also subject to a review process, that addresses behavior that is dangerous and out of control. Thus, in Washington State, barring formal commitment with legal and/or administrative review, youth deemed to need a mental health services must be convinced though a process based on a respectful relationship and patient education such as is the case for young adults. Short term stays in hospitals or residential programs, aimed at intervening in a crisis, are widely accepted as an essential ingredient in the spectrum of care for children and adolescents. While a hospitalization may reflect failures in the community based care system, holding a youth against their will on an acute care unit may be an expedient intervention that can save a life.
Are youth who would refuse long term residential treatment wrong about judging their own needs? Are they acting without an adequate ability to determine their best interest? It is important to keep in mind that there is essentially no data supporting the efficacy of residential treatment. It is the clinical judgment of many that skills learned when in forced care, away from one's home and social network, fails to generalize when a teen is finally released into the community. Long term residential treatment creates a social environment where the power gradient between adults and youth is grossly distorted over what is common in almost all normative communities in which young people grow up. An institution, therefore, cannot support an adolescent developmental process that depends on youth having some freedom to experiment and make mistakes.
Forced care may often involve an abdication of our responsibility for forging a viable treatment relationship with our adolescent patients. We don’t have the time or skills to engage with a teen, or we assume that when a youth is in disagreement with us that we are right and the youth is a priori wrong. Relationship rich care is perceived as unrealistic given budget constraints. However, gaining an adolescent's trust and conducting a successful treatment is, however, demonstrably less expensive if treatment forestalls involvement in hospitals, juvenile court, foster care or substance abuse care. Good treatment also saves society money due to the prevention of collateral damage; the human and material losses so common for families struggling with a troubled youth. Even youth not inclined to forging such relationships with any caring adult may find that the culture of care in our community is more humane and respectful even when their behavior forces them into care. It is very important to remember that most youth will ultimately respect the mandates of their parents, even if they are at odds with them.
So is this long held perspective of mine challenged by the spate of new research into normal brain development during adolescent? Not really. We know that the process of myelinization of neurons in the brain continues to age 25, or so. It occurs back to front, adding efficiency and speed to nerve transmission. This is last accomplished in the frontal lobes thus associating incomplete myelination with poorer judgment, but in youth all the way to age 25. The research is consistent with what all clinicians and parents already know; youth are less mature in their social judgments then older adults, but most significantly in moments of high stress and, in ordinary circumstances, only somewhat less mature.
We also know that there are synaptic modifications with the growth of some new capacities as adolescence continues, but this process can be shown to never really stop. New cell growth in the amygdala is accomplished early in adolescence. None of these neurodevelopmental processes accounts for large individual variation. The timing of these changes seems to not conform with more common practices of setting the age of consent at 16 or 18. In fact the processes of neurodevelopment defying clear age definitions can be interpreted as confirming the brains plasticity throughout life. A 14 year old can do some mental tasks better then an 84 year old and visa versa. Different stages have different assets and liabilities for brain function, but after age 12 or 13 (or after puberty) all stages seem to involve good enough brain capacity, on average, so that there is little more reason to abrogate the rights of a 14 year old then there is of an 84 year old, for the purposes of making reasoned judgments about their own health care.
What we also know from clinical research is that youth under stress do not think as clearly. They are more vulnerable to errors of judgment, and to reacting erratically, when perfused with overwhelming emotions. It is common knowledge that youth are vulnerable to making horrific errors in judgment when they are under great pressure, are swept up in a mob action, or are in a bitter conflict. It is also a contention based on research. This knowledge should modify how we respond to youth who have committed crimes. Both recent clinical and neurodevelopmental research validates the existence of juvenile courts. It should caution against remanding many youth to adult courts and provides reasons for more measured and “guidance” oriented legal dispositions for youthful crimes. It is good policy to offer youth second chances as most continue to grow by learning from experience.
This current research clearly makes the death penalty for a capital crime an abomination if the crime was committed while the individual was a teen. While many may argue that it is always and unwarranted act of social retribution, the fact that youth have some level of diminished capacity based on brain immaturity makes it, for them, a punishment that is truly cruel and unusual. This is the position of the American Society for Adolescent Psychiatry as spelled out in our policy statements and in our authorship of amicus briefs in juvenile death penalty cases.
The difference between exercising options regarding health care and committing a horrific crime while acting in the heat of passion, should be very clear. Making both circumstances equivalent is a failure in the policy making task of setting thresholds of expectations for acts based on their context and consequences. Making judgments about healthcare options may be influenced by emotions or cognitive processing problems that are related to immaturity, yet research shows these immaturities to be variable between individuals and, in the aggregate, insignificant between the ages of at least 14 and 25. Furthermore, having to exercise judgment regarding health care options is growth promoting as it places a teen in a moment of responsibility taking commensurate with their abilities to learn from the experience. The fact of a right to consent to care in no way precludes active parental advise and support in a teen’s decision making process, particularly for less mature or developmentally impaired youth.
Constraining harmful, even murderous, acts in the heat of the moment should be an expectation of teenagers as well. Bad acts should receive proportional consequences. However given the vulnerabilities of an immature adolescent to poor judgment in a highly emotion charged context, proportional consequences should not ever include the death penalty. That adolescent individual’s capacity to exercise critical judgment in such a circumstance is clearly influenced by the specific effects of their immature brain. These two cases; the age of consent and juvenile death penalty, are very different. Available research should be applied to both in a way that appreciates the differences. This is the argument that I will be proposing in the response to Forehand and Ciccone in the upcoming annals.
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