62 [80 Op. Att’y

1

 This opinion is not intended to address issues of consent for

treatment of minors in any other institutional settings.

CORRECTIONS

HEALTH ) AUTHORITY TO CONSENT TO MEDICAL TREATMENT

FOR MINORS IN ADULT CONFINEMENT FACILITIES

January 25, 1995

Honorable James W. Hubbard

House of Delegates

You have requested our opinion whether current law requires

State and local adult detention and correctional facilities housing

inmates under 18 years of age who are charged as adults or serving

sentences as adults to obtain the consent of parents or guardians of

these prisoners prior to providing medical care. 

For the reasons stated below, we conclude as follows: As a

general rule, the physician who is treating a minor held in an adult

detention or correctional facility1 should obtain the consent of the

minor’s parent or guardian for medical treatment that goes beyond

a routine response to common ailments. Under some circumstances,

however, a physician may provide more significant forms of medical

treatment to a prisoner who is a minor without the consent of the

minor’s parent or guardian:

1. Treatment that is necessary to respond to a medical

emergency may be provided either with the consent of the minor or

without consent. 

2. If the minor is married or the parent of a child, any form

of treatment may be provided with the consent of the minor. 

3. Treatment may also be provided for any of the conditions

identified in §§20-102(c) and 20-104(a) of the Health-General

(“HG”) Article, Maryland Code, with the consent of the minor. 
Gen. 62] 63

2

 The Division carries out this responsibility by means of a contract

with a provider of health care services.

4. Finally, although the matter is not settled in Maryland, the

attending physician may rely on the informed consent of a minor

who is reasonably deemed to be mature enough to provide consent

for a particular treatment. 

I

Duty to Provide Needed Medical Treatment

The custodian of a prisoner has a legal duty to safeguard the

health of a prisoner. In part, this legal duty flows from the United

States Constitution. See Estelle v. Gamble, 429 U.S. 97 (1976)

(Eighth Amendment requires state to provide adequate medical care

to prisoners where failure to do so would amount to deliberate

indifference to serious medical needs); Buffington v. Baltimore

County, 913 F.2d 113 (4th Cir. 1990) (due process clause guarantees

a pre-trial detainee at least the same right to medical care). In part,

the duty is statutory. A prisoner in the custody of the Division of

Corrections is entitled to “adequate treatment” for an illness. Article

27, §698.2

 A pre-trial detainee in the custody of a sheriff or

comparable jailor has a right to necessary medical treatment. Article

87, §§46 and 48 of the Code. See generally 58 Opinions of the

Attorney General 647 (1973). 

However, these statutes do not address the issue of informed

consent for treatment. In general, the fact that a person is

imprisoned does not deprive the prisoner of his or her “right to be

free from unjustified intrusions into the body, ... the related right to

refuse unwanted medical treatment, ... and ... the right to sufficient

information to intelligently exercise those rights.” White v.

Napoleon, 897 F.2d 103, 111 (3d Cir. 1990). See Washington v.

Harper, 494 U.S. 210, 221-22 (1990). To be sure, the State’s

interest in effective prison administration entitles it to administer

some types of treatment without the consent ) indeed, over the

objection ) of a prisoner. See generally Washington v. Harper, 494

U.S. at 227. See also, e.g., In re Caulk, 480 A.2d 93 (N.H. 1984)

(although prisoner has right under state constitution to prevent

unwanted infringement of bodily integrity, state interest in effective

prison administration justifies forced feeding of prisoner who would
64 [80 Op. Att’y

otherwise starve to death). But cases of this kind are exceptions to

the general rule that the doctrine of informed consent applies within

jails and prisons, just as it does elsewhere. 

Hence, we turn to general principles of law governing consent

for medical treatment of minors. 

II

Consent for Treatment of Minors

Because minors are usually thought to be incapable of

adequately assessing all of the pertinent factors involved in making

important medical decisions, the traditional common law rule deems

minors incapable of consenting to medical or surgical treatment.

See, e.g., Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941); In re

Hudson, 126 P.2d 765 (Wash. 1942). “[D]uring the formative years

of childhood and adolescence, minors often lack the experience,

perspective, and judgment to recognize and avoid choices that could

be detrimental to them.” Bellotti v. Baird, 443 U.S. 622, 635 (1979).

Parents, as natural guardians, have long possessed common law

authority to make medical decisions for their children without being

appointed by a court. See generally Parham v. J.R., 442 U.S. 584

(1979).

Parental authority under the common law has been codified in

§5-203 of the Family Law (“FL”) Article, Maryland Code, which

delineates the responsibilities of a parent in relation to the child.

This section provides that “parents are the joint natural guardians of

their minor child” and “the parents of a minor child are jointly and

severally responsible for the child’s support, care, nurture, welfare

and education.” See Middleton v. Middleton, 329 Md. 627, 633, 620

A.2d 1363 (1993). While this section does not expressly include

medical care within the responsibilities of a parent, the Court of

Appeals has held that medical care is indeed embraced within the

scope of the broad language used in FL §5-203. State v. Fabritz,

276 Md. 416, 348 A.2d 274 (1975), cert. denied, 425 U.S. 942

(1976). See also Craig v. State, 220 Md. 590, 155 A.2d 684 (1959);

Robey v. State, 54 Md. App. 60, 456 A.2d 953, cert. denied, 296 Md.

224 (1983). 

Physicians generally must obtain the consent of the parents

before performing any medical treatment on a child. “When the

patient is a minor, the patient is legally below the ‘age of consent,’
Gen. 62] 65

and the general rule is that a medical practitioner will be liable for

treating a minor without the consent of the minor’s parents.” Danny

R. Veilleux, Annotation, Medical Practitioner’s Liability for

Treatment Given Child Without Parent’s Consent, 67 A.L.R. 4th

511, 517 (1989). See also Ruth R. Faden & Tom L. Beauchamp, A

History and Theory of Informed Consent 36 (1986). If a child is a

ward of the court, these responsibilities devolve upon the guardian.

See Wentzel v. Montgomery Gen. Hosp. Inc., 293 Md. 685, 701-02,

447 A.2d 1244 (1982). 

In order to make medical treatment decisions for their children,

parents are entitled to the same information regarding the risks and

benefits of proposed treatment as would be provided to the minor if

the minor were competent to make the treatment decision personally.

See Marino v. Ballestas, 749 F.2d 162 (3d Cir. 1984). See generally

Sard v. Hardy, 281 Md. 432, 439, 379 A.2d 1014 (1977). Hence, as

a general matter, a physician seeking to treat a minor in custody

must obtain the informed consent of the minor’s parent or guardian

prior to providing medical treatment to the minor. This general rule

has important exceptions, however, that we discuss in the balance of

this opinion. 

III

Consent by Minor to Treatment

A. Statutory Authority

HG §20-102(a) grants to an emancipated minor “the same

capacity as an adult to consent to medical treatment ....” An

emancipated minor is one who is married or the parent of a child.

HG §20-102(a). An emancipated minor is also authorized by statute

to execute an advance directive under the Health Care Decisions

Act. See HG §5-601(b). 

In addition, a minor, even if not emancipated, “has the same

capacity as an adult to consent to medical treatment if, in the

judgment of the attending physician, the life or health of the minor

would be affected adversely by delaying treatment to obtain the

consent of another individual.” HG §20-102(b). Thus, a physician

treating a minor prisoner may act on the minor’s consent to

emergency treatment without obtaining the consent of a parent or
66 [80 Op. Att’y

guardian. See also Part IV below (emergency treatment without

consent).

HG §20-102(c) identifies seven circumstances under which a

minor “has the same capacity as an adult to consent” to medical

treatment: 

(1) Treatment for or advice about drug abuse;

(2) Treatment for or advice about alcoholism;

(3) Treatment for or advice about venereal

disease;

(4) Treatment for or advice about pregnancy;

(5) Treatment for or advice about

contraception other than sterilization;

(6) Physical examination and treatment of

injuries for an alleged rape or sexual

offense; and 

(7) Physical examination to obtain evidence

of an alleged rape or sexual offense.

Finally, HG §20-104(a) authorizes minors who are 16 years old or

older “to consent to consultation, diagnosis, and treatment of a

mental or emotional disorder by a physician or a clinic.”

B. Mature Minors

Although the issue has not been resolved by the Maryland

courts, a developing body of case law from other jurisdictions and

scholarly comment suggest that a minor who can demonstrate that

he or she is mature enough to understand the consequences of a

medical procedure may give the requisite informed consent. See

generally Restatement (Second) of Torts §892A (1979) (if person

consenting is a child, the consent may still be effective if the child

is capable of appreciating nature, extent, and probable consequences

of conduct consented to); W. Page Keeton, et al., Prosser and

Keeton on the Law of Torts §18, at 115 (5th ed. 1984) (capacity of

minor to consent exists when the minor has the ability of an average

person to understand and weigh the benefits of treatment); Rhonda
Gen. 62] 67

Cohn, Minor’s Right to Consent to Medical Care, 31 Med. Trial

Technique Q. 286, 290-91 (1985) (minor may consent “if the minor

is mature enough to understand the nature and consequences of a

medical procedure that is for the minor’s benefit and can weigh

alternatives to the procedure”).

The Illinois Supreme Court, for example, held that “a minor ...

who was just months shy of her eighteenth birthday ... and ... [who]

the record indicates was mature for her age” was legally authorized

to consent to medical treatment. In re E.G., 549 N.E.2d 322, 325

(Ill. 1989). The Illinois court observed that the age of majority “is

not an impenetrable barrier that magically precludes a minor from

possessing and exercising certain rights normally associated with

adulthood.” Id. According to the court, “mature minors may

possess and exercise rights regarding medical care that are rooted in

this State’s common law.” 549 N.E.2d at 326. See also, e.g., Younts

v. St. Francis Hosp. and School of Nursing, Inc., 469 P.2d 330 (Kan.

1970) (17 year old able to consent to minor surgery); Cardwell v.

Bechtel, 724 S.W.2d 739 (Tenn. 1987) (17 year old able to consent

to spinal manipulation); Belcher v. Charleston Area Medical Center,

422 S.E.2d 827 (W.Va. 1992) (remand to trial court to determine

whether 17 year old was able to consent to “do not resuscitate”

order). The West Virginia court observed that the issue of

“[w]hether a child is a mature minor is a question of fact”: 

Whether the child has the capacity to consent

depends upon the age, ability, experience,

education, training and degree of maturity of

judgment obtained by the child, as well as

upon the conduct and demeanor of the child at

the time of the procedure or treatment ... [and]

whether the minor has the capacity to

appreciate the nature, risks, and consequences

of the medical procedure to be performed, or

the treatment to be administered or withheld.

422 S.E.2d at 838. See also Cardwell v. Bechtol, 724 S.W.2d at 745.
68 [80 Op. Att’y

3

 The fact that a minor is prosecuted as an adult does not by itself

establish that the minor may make all medical decisions, as if he or she

were an adult. Factors other than those related to the minor’s judgment

and maturity ) the nature of the crime, for example ) might determine

whether the minor is prosecuted as an adult. See §§3-804(e) and 3-817(d)

of the Courts and Judicial Proceedings Article, Maryland Code. 

Because we consider these decisions to be soundly reasoned,

we think it more likely than not that Maryland courts would accept

the “mature minor” doctrine in an appropriate case. A minor who

has been held accountable as an adult for criminal misconduct, for

example, would surely be mature enough to understand and consent

to, by accepting, the routine care that is an implicit part of

institutional confinement.3 As a practical matter, no real issue of

consent arises when the treatment consists of little more than the

provision of over-the-counter medication. A health care provider

need not be concerned about consent to dispense Tylenol to a minor

prisoner who complains of a headache or to apply antiseptic and a

bandage to a small cut. 

Nevertheless, in the absence of Maryland authority, we suggest

that health care providers in the prison setting act cautiously for

more serious forms of treatment. If the treatment in question is one

for which express, specific informed consent is ordinarily required,

the attending physician should first seek to obtain parental consent

unless the minor may consent under circumstances specified by

statute. For these interventions, reliance on the “mature minor”

doctrine should be a last resort, and only then if the physician

determines the minor to be mature enough to provide informed

consent for the particular procedure in question. 

IV

Treatment Without Consent

Maryland law codifies the long-accepted principle that health

care providers may treat a patient in an emergency without consent.

HG §5-607 provides as follows:

A health care provider may treat a patient

who is incapable of making an informed

decision, without consent, if:
Gen. 62] 69

(1) The treatment is of an emergency

medical nature;

(2) A person who is authorized to give

the consent is not available immediately; and

(3) The attending physician determines

that:

(i) There is a substantial risk of

death or immediate or serious harm to the

patient; and

(ii) With a reasonable degree of

medical certainty, the life or health of the

patient would affected adversely by delaying

treatment to obtain consent.

This provision applies as much in detention or correctional facilities

as elsewhere. 

V

Conclusion

In summary, it is our opinion that, as a general rule, the

physician treating an imprisoned minor should obtain the consent of

the minor’s parent or guardian for medical treatment that goes

beyond a routine response to common ailments. Under some

circumstances, however, a physician may provide more significant

forms of medical treatment to a prisoner who is a minor without the

consent of the minor’s parent or guardian: 

1. Treatment that is necessary to respond to a medical

emergency may be provided either with the consent of the minor or

without consent. 

2. If the minor is married or the parent of a child, any form

of treatment may be provided with the consent of the minor. 

3. Treatment may also be provided for any of the conditions

identified in HG §§20-102(c) and 20-104(a) with the consent of the

minor. 
70 [80 Op. Att’y

4. Finally, although the matter is not settled in Maryland, the

attending physician may rely on the informed consent of a minor

who is reasonably deemed to be mature enough to provide consent

for a particular treatment.

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice