“Mature Minors” and Refusal of Likely Life-Saving Treatment

In re Sheila W. (Wisc. July 10, 2013) involves this issue, though the court declines to reach the question on grounds of mootness:

The petitioner, Sheila W., is a minor who was diagnosed with aplastic anemia. She opposed on religious grounds any life-saving blood transfusions and her parents supported her position. [Sheila W. is a Jehovah’s Witness. -EV]

The circuit court appointed a temporary guardian under Wis. Stat. § 54.50 for the purpose of deciding whether to consent to medical treatment. Sheila W. appealed, but the order appointing a temporary guardian expired while the case was pending before the court of appeals. The court of appeals then dismissed the appeal, concluding that the issues presented are moot and that the appeal does not sufficiently satisfy the criteria to address the merits regardless of mootness. Four issues are presented for our review:

First, notwithstanding mootness, should this court decide this case on the merits because it involves matters of statewide importance that are capable of repetition yet evade appellate review? Second, does Wisconsin recognize the mature minor doctrine, which may permit a minor to give or refuse consent to medical treatment after a finding that she is sufficiently mature and competent to make the treatment decision? Third, does a mature, competent minor have an enforceable due process right to refuse unwanted medical treatment? Fourth, did the circuit court violate Sheila W.’s common law and constitutional right to refuse unwanted medical treatment by appointing a temporary guardian to determine whether to give consent to medical treatment over her objections?

The court concluded the issue was moot because a transfusion was indeed ordered and performed, the guardianship then expired, and there was no plan to require further transfusions. And the court declined (by a 4-3 vote) to use the “capable of repetition yet evading review” exception to mootness, because it concluded that it was better to see if the Legislature would enact legislation dealing with it.

Justice Prosser’s concurrence notes the views of some states, though with some skepticism:

Several states have recognized the “rights” of mature minors by statute. See, e.g., Arkansas (Ark.Code Ann. § 20–9–602(7) (2012)); New Mexico (N.M.Stat.Ann. § 24–7A–6.1.C.(1997)); South Carolina (S.C.Code Ann. § 63–5–340 (2010)); and Virginia (Va.Code Ann. § 63.2–100.2. (2012)). But care must be taken not to misread some of these statutes. For instance, the South Carolina statute provides:

Any minor who has reached the age of sixteen years may consent to any health services from a person authorized by law to render the particular health service for himself and the consent of no other person shall be necessary unless such involves an operation which shall be performed only if such is essential to the health or life of such child in the opinion of the performing physician and a consultant physician if one is available.

S.C.Code Ann. § 63–5–340 (2010) (emphasis added). It is not clear from this statute whether a minor who has reached the age of 16 years may refuse lifesaving services, especially if those services are authorized by a parent or by a court. A provision of South Carolina’s Death with Dignity (or Right to Die) Act, S.C.Code Ann. § 44–77–30 (2002), permits a person to adopt a written declaration that life-sustaining procedures may be withheld, but only if the person is 18 years of age or older. Consequently, while South Carolina “recognizes” the rights of mature minors by statute, the statute is not as far-reaching as the doctrine that Sheila proposes here.

By contrast, New Mexico’s statute appears to be very far-reaching and to cover Sheila’s 2012 circumstances. The pertinent statute reads:

Subject to the provisions of Subsection B of this section, if an unemancipated minor has capacity sufficient to understand the nature of that unemancipated minor’s medical condition, the risks and benefits of treatment and the contemplated decision to withhold or withdraw life-sustaining treatment, that unemancipated minor shall have the authority to withhold or withdraw life-sustaining treatment.

N.M. Stat. Ann. § 24–7A–6.1.C. (1997). If this statute had been in effect last year in Wisconsin, Sheila would now likely be dead.

There also are a number of court decisions that have adopted some form of the mature minor doctrine. See, e.g., Kozup v. Georgetown Univ., 851 F.2d 437, 439 (D.C.Cir.1988); People v. E.G., 549 N.E.2d 322, 325 (Ill.1989); Younts v. St. Francis Hosp. & Sch. of Nursing, 469 P.2d 330, 338 (Kan.1970); In re Swan, 569 A.2d 1202, 1205 (Me.1990); In re Rena, 705 N.E.2d 1155, 1157 (Mass.App.Ct.1999); Bakker v. Welsh, 108 N.W. 94, 96 (Mich.1906); Gulf & Ship Island R.R. Co. v. Sullivan, 119 So. 501, 502 (Miss.1928); Cardwell v. Bechtol, 724 S.W.2d 739, 748–49 (Tenn.1987); Belcher v. Charleston Area Med. Ctr., 422 S.E.2d 827, 837–38 (W.Va.1992). The substance of these decisions is not uniform. To illustrate, the Tennessee Supreme Court adopted the so-called Rule of Sevens, which provides that children under the age of 7 have no capacity to consent to medical treatment, children between the ages of 7 and 14 have a rebuttable presumption of no capacity, and children between the ages of 14 and the age of majority possess a rebuttable presumption of capacity.

Justice Prosser also notes, near the end of his concurrence:

Some Jehovah’s Witnesses have been accused of disfellowshipping, even shunning, members who consent to blood transfusions. See Osamu Muramoto, Bioethical aspects of the recent changes in the policy of refusal of blood by Jehovah’s Witnesses, Brit. Med. J., Jan. 6, 2001 at 37–39. The court is not in a position to evaluate these accusations on the evidence before us. However, the existence of these accusations inevitably raises questions about whether a minor’s decision to refuse blood transfusions — at the risk of her own death — is truly a voluntary decision when the minor is a Jehovah’s Witness.