Why the Proposed “Minor Consent” Law in New York Must Be Defeated

This article originally appeared on The Defender and was republished with permission.

Guest post by Suzanne Burdick, Ph.D.

New York state lawmakers are weighing legislation that would allow any child or teen under 18 to seek out and consent to medical treatment — including vaccines, dental procedures, hospitalization and even surgery — without parental consent, as long as the minor appears to have the mental capacity for making that decision.

Assembly Bill A6761, introduced by New York Assemblymember Karines Reyes (D-Bronx), also would allow Medicaid funds to pay for procedures and drugs administered to children.

Proponents of the legislation, such as the American Civil Liberties Union of New York, say the measure is about ensuring all youth have access to quality care.

But critics, including John Gilmore, founder and executive director of the nonprofit Autism Action Network, said the bill is dangerous.

“The bill’s biggest problem,” Gilmore told The Defender, “is that it allows any medical procedure to be done to children of any age without parental knowledge or consent. That’s the kicker.”

Gilmore said the bill has another problem, too: The “active summary” statement on the official New York Assembly website says it “allows homeless youth to give effective consent to certain medical, dental, health, and hospital services.”

But Gilmore said that statement is “deliberately misleading” because the bill’s text applies to more than just “homeless” youth seeking “certain” services.

The bill states:

“Any person, including a minor, who comprehends the need for, the nature of, and the reasonably foreseeable risks and benefits involved in any contemplated medical, dental, health, and/or hospital services, and any alternatives thereto, may give effective consent to such services for themself, and the consent of no other person shall be necessary.”

“Albany is lying” about the bill, according to Autism Action Network.

Michael Kane, a New York resident and founder of Teachers For Choice, agreed. “It’s a complete lie to say the bill applies only to homeless children or runaways — and it’s a dangerous one,” Kane told The Defender. “It’s imperative that legislators understand what the bill really does,” Kane said.

With New York lawmakers considering close to 10,000 bills, legislators may rely on a bill’s one-sentence summary — rather than reading its full text — for deciding how they vote, according to Gilmore.

The bill has a companion in the Senate (S8352), introduced Jan. 19 by state Sen. Rachel May (D-Syracuse). The bills share identical text.

Unclear how practitioners would assess minor’s ‘capacity to comprehend’

According to the latest version of the bill, a minor could consent to:

• General medical, dental, health and hospital services.
• Mental health outpatient services.
• Substance abuse treatment.
• Immunizations.
• Family planning services.
• Sexually transmitted disease (STD) diagnosis and treatment.

The bill states that a practitioner may administer a vaccine if “they have reason to believe that a person in parental relation to the child … objects to the immunization.”

It also states, “A child who may give effective consent [to various medical interventions] … may give such consent to their own immunization, and the consent of no other person shall be necessary.”

The bill allows minors under 16, in certain circumstances, to access psychotropic drugs or psychotherapy without parental consent.

Psychotropic drugs include a host of pharmaceutical products, including medications for depression, anxiety, sleep disorders, schizophrenia, bipolar disorder and attention-deficit/hyperactivity disorder.

Current New York law allows minors 16 or older residing in a hospital to agree to psychotropic medications without parental consent if any of the following conditions are met:

• A parent or guardian “is not reasonably available” and the physician determines “the minor has the capacity”; or
• requiring parental consent “would have a detrimental effect on the minor”; or
• the parent has refused consent, providing that two physicians (including a psychiatric doctor who does not work for the facility) agree the medications are in the minor’s best interests.

A6761/S8352 would allow minors under 16 in these circumstances to do the same, as long as the youth “comprehends the need for, the nature of, and the reasonably foreseeable risks and benefits involved.”

The bill does not include detailed information on how medical practitioners would assess a minor’s capacity to comprehend the potential risks of a potential treatment.

It does, however, define “capacity” as follows:

“The minor’s ability to understand and appreciate the nature and consequences of the proposed treatment, including the benefits and risks of, and alternatives to, such proposed treatment, and to reach an informed decision.”

Children’s Health Defense General Counsel Kim Mack Rosenberg told The Defender that informed consent is a “serious” thing, but this legislation devotes “little attention to how to determine if a child can truly exercise informed consent, how to obtain that consent and why true informed consent is critically important.”

Who is a ‘minor’?

The bill does not provide a clear definition of “minor” that applies across all amended laws. However, some sections of the law define or describe the age thresholds related to minor consent:

• In the amendments to the mental hygiene law section 9.13(a), anyone under 16 would still need parental/guardian consent to be admitted as a voluntary patient to a hospital.
• In amendments to mental hygiene law 33.21(a)(1), a “minor” is defined as a person under 18, excluding some special cases like emancipated minors or minors who are parents.
• In amendments to section 2305 of public health law, treatment for STDs without parental consent is allowed for those under 21.

However, earlier sections of the bill do not specify any age range for minors, suggesting even young minors could consent as long as they demonstrate appropriate “capacity.”

Even infants?

It appears the bill’s sponsors may believe that even an infant can give consent. That’s because section 18 of public health law omits previous language stating that children older than 12 can determine who gets access to their medical records.

This deletion suggests that a child of any age no longer “may” but “shall be notified of any request by a qualified person to review their patient information” and deny access to it if they so desire.

The bill states that an infant can choose to withhold information from its parents, without explaining how that would be possible:

In summary, there isn’t one definition of “minor” in the bill, but it seems for most purposes “minor” refers to anyone under age 18.

Minor consent bills bulldoze’ over decades of laws honoring parental rights

The U.S. has a strong legal history going back many decades that honors parental rights and recognizes that the state should step in only where parents are unfit to care for their children, Rosenberg said.

“Minor consent bills bulldoze over those longstanding decisions,” she said. “They try to exclude parents from medical decision-making and take over the parenting role.”

Rosenberg said she’s seen more bills like this recently being introduced in other states, such as Vermont. “We [CHD] successfully stopped one in the District of Columbia and are fighting laws and regulations elsewhere,” she said.

Kane called the bill “just horrendous” because it “completely eradicates parental control over what happens medically to our children.”

Meanwhile, a staff member for Reyes’ office who chose to remain anonymous told The Defender she disagreed, saying the bill was primarily about ensuring all kids have “access to care” and that it included “guardrails” to ensure that not all parental consent was stripped away in all situations.

For instance, the bill explains that a minor must “knowingly and voluntarily” seek care, the staff member said.

But Rosenberg said she’s concerned about the legal ramifications of the bill’s broad language — which appears to erase parental consent for “any contemplated medical, dental, health, and/or hospital services, and any alternatives thereto.”

Rosenberg told The Defender the bill was “rife with problems too numerous to address in brief remarks.”

The bill makes clear, she said, that minors can consent to vaccinations without their parents’ knowledge or consent — and that medical staff and insurance companies must hide that vaccination information from the parents unless the child permits them to share it.

Children “literally may inadvertently take their lives into their own hands” if they make serious healthcare decisions without parental involvement, Rosenberg said.

For example, children frequently don’t know their own health history — let alone their family health history — which may put them at an increased risk for an adverse reaction to a medication or treatment, she explained.

Rosenberg said:

“The legislators supporting these bills need to ask themselves what they would do if a child or grandchild of theirs consented to a surgical procedure of whatever kind requiring anesthesia and the child suffered death or irreversible harm if they had a reaction to the anesthesia.

“Is that a phone call they’d like to receive?”

‘Not a chance’ bill’s sponsors unaware of misleading statement

New York already has a law on the books about homeless youth giving consent for certain services.

Passed in 2022, A09604/S08937 allows “runaways and homeless youth under the age of 18 who are receiving approved crisis or support services to consent to medical, dental, health and hospital services.”

Gilmore, who has done legislative analysis in New York for 23 years, said, “Both Rachel May and Karines Reyes voted for the bill that was passed in 2022.”

So why would they talk about homeless youth in the summary of the new measure they introduced?

A staff member for Reyes’ office told The Defender a bill’s summary statement is written by lawyers — not by the legislator who introduces the bill.

It’s plausible the lawyers chose that language since the bill amends the same section of public health law (2504) that was amended earlier in the law about homeless youth and runaways, the staff member said. However, the staff member confirmed that the present bill does pertain to all minors.

The Defender also reached out to May’s Legislative Director Eric van der Vort, but he did not respond by our publication deadline.

Gilmore said he contacted legislators, too, but didn’t get a straight answer. When he asked van der Vort about the summary language, “he simply refused to address it in any way,” Gilmore said.

Reyes’ Chief of Staff Justin Westbrook-Lowery confirmed for Gilmore that the bill applies to all minors in New York but didn’t explain why the summary statement talked about homeless youth.

Amy Paulin (D-Scarsdale), who chairs the Assembly Committee on Health and co-sponsored the bill, “has a large staff and they’re very good at what they do,” Gilmore said. “There’s not a chance that they aren’t quite aware” that the bill’s summary statement doesn’t match what the bill would do.

Kane said he’s heard from New York legislators and staffers that they believe the bill affects only homeless children.

“There’s a lot of people in the Assembly starting to co-sponsor the bill, which is scary,” he said. “We don’t want this thing passed so that we end up litigating against it for the next five years.”

The Defender asked May’s media relations staff what May would like to tell parents concerned about being excluded from medical decision-making regarding their child’s health, but did not receive a response by our publication deadline.

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