Medication Utilization Informed Consent and Adolescents

Publication Info: 
Tennessee Medicine, March 2008

By Judy Regan, MD, MBA, JD; Renee Levay Stewart, JD; Arvis Wright, BS, CAP; and Anas Alkhatib, MD

Many psychiatric disorders are first recognized and treated in adolescents. The adolescent’s need for privacy and confidentiality may affect their willingness to seek and obtain the treatment they need. Since adolescent maturity cannot always be assumed and some psychiatric disorders can effect cognitive processing, as risks increase, particularly with the use of psychotropic medications, adolescents may not fully understand the impact of their decision. In addition, state regulations may dictate the process of informed consent. This paper looks at the medical legal issues that revolve around an adolescent’s informed consent for psychiatric care.

The prevalence of adolescent psychiatric disorders is estimated between 13 and 21 percent. By the time adolescents reach the age of 16 years, the proportion that have ever experienced at least one psychiatric disorder has been estimated to be 31 percent for girls and 42 percent for boys. Current studies have shown that treatment of these disorders increasingly involves the use of psychotropic medications. One recent study indicated the average annual growth rate for prescribing psychotropics in adolescents rose between 1994-2001, with the highest acceleration after 1999. This trend was found in male and female patients who were treated by primary care physicians as well as psychiatrists. Another study conducted in Texas found foster care children were prescribed psychotropic medications more often if they were white or Hispanic, male, and 10-14 years old.

Some studies have specifically shown an increase in the treatment of adolescents with antipsychotic medications. In a review of the mid-Atlantic state Medicaid program, children 10-19 years old in the SSI and foster care categories accounted for 67 percent of all those treated with antipsychotic medications.  Although few studies have identified the clinical characteristics of adolescents who are prescribed psychotropics, one Tennessee Medicaid study found attention deficit hyperactivity disorder, conduct disorder and mood disorders accounted for most of the increase in the use of antipsychotic medications.

Despite this increase, many of the psychotropic medications have undergone limited clinical trials substantiating their long-term safety and efficacy and are prescribed “off label.”5 As a result, there has been a growing concern that adolescents requiring psychiatric treatment may need to be more involved in the decision-making and informed consent process.

Physicians are generally required to obtain their patient’s informed consent before the treatment process begins. In some situations, treating without obtaining informed consent can lead to complaints to the state medical board as well as malpractice claims. Informed consent is defined by the following requirements: adequate information, capacity to decide, and absence of coercion. Adolescents should be told the facts regarding their psychiatric disorder, understand the risks and benefits of treatment or alternatives for their disorder, and have the opportunity to address any concerns they may have. Beyond providing information to the adolescent, the physician will need to determine if the adolescent has the capacity to give informed consent. A clinical evaluation and an understanding of Tennessee law are both important when making this determination.

The capacity to consent involves being able to understand the nature, the risks and the consequences of the treatment being considered. Some psychiatric conditions (i.e., bipolar, schizophrenia) may impair the ability of an adolescent to give consent. Most laws determining who has the legal capacity to provide informed consent, including that of adolescents, are left to the states. In Tennessee, “the mature minor doctrine was established by the Tennessee Supreme Court through the ‘Rule of Sevens’: (1) a minor under the age of 7 years lacks capacity; a minor between 7 and 14 years of age is presumed not to have capacity, … a minor over 14 years old is presumed to have capacity.” Both presumptions may be rebutted by evidence to the contrary.1 The Tennessee legislature has also provided guidance on this matter. Tennessee recognizes the emancipated minor statute (marriage, court order or recognized by law) and has a statute that gives adolescents over 16 “the same rights as an adult with respect to outpatient and inpatient mental health treatment, medication decisions, confidential information and participation in conflict resolution procedures.” For adolescents found to lack capacity, the physician must obtain consent from a parent or other legal guardian before providing psychiatric

Mental health treatment and psychotropic medications prescribed for adolescents have increased over the last several years. This increase may be the result of more awareness of adolescent psychiatric disorders, availability of new psychotropic medications, and changes in state and federal regulations. Many of the newer psychotropic medications prescribed have not been studied significantly for use in adolescents and are used “off label.” As a result, informed consent takes on additional significance for the adolescent. Therefore, physicians need to be aware of existing statutes and individualize informed consent when caring for adolescents.

1. Campbell AT: Consent, competence, and confidentiality related to psychiatric conditions in adolescent medicine practice. Adol Med Clin 17:25-47, 2006.
2. Thomas CP, Conrad P, Casler R, Goodman E: Trends in the use of psychotropic medications among adolescents. 1994 to 2001. Psychiat Serv 57(1):63-69, Jan 2006.
3. Zito JM, Safer DJ, Devadatta S, Gardner JF, Thomas D, Coombes PH, Dubowski, Mendez-Lewis M: Psychotropic Medication Patterns Among Youth in Foster Care. Ped 121;e157-e163, 2008.
4. Zito JM; Safer, DJ; Zuckerman IH; Gardner JF; Soeken K: Effect of Medicaid Eligibility Category on Racial Disparities in the Use of Psychotropic Medications Among Youths. Psychiat Serv 56:157-163, 2005.
5. Olfson M, Blanko C, Linzu L, Moreno C, Laje G: National Trends in the Outpatient Treatment of Children and Adolescents With Antipsychotic Drugs. Arch Gen Psychiat 63:679-685, 2006.
6. Cardwell v. Bechtol, 724 SW 2d 739 (Tenn. 1987).
7. T.C.A. Sections 33-8-104 and 33-8-202.

Dr. Regan is an associate clinical professor of psychiatry at Vanderbilt University School of Medicine and an associate with North, Pursell & Ramos (NPR), PLC, in Nashville; Ms. Renee Levay Stewart is a partner with NPRJ, with a practice that includes defending physicians in malpractice and licensure actions. Ms. Wright is a certified administrative professional employed with the state of Tennessee. Dr. Alkhatib works in the Office of Chief Mental Health Care Line in Department of Veterans Affairs TVHS Mental Health Care Line (Nashville/Murfreesboro facility).