TOPEKA POLICE DEPARTMENT
 Number: LB 00-04
LEGAL BULLETIN
SUBJECT: MINORS’ RIGHT TO REFUSE MEDICAL TREATMENT
AMENDS: 
STATUTE REFERENCES: KSA 38-123b, 21-3412(a)(2)
ISSUING AUTHORITY: John Knoll, City Attorney DATE ISSUED: June 15, 2000

    Several officers have asked me to provide some legal guidance on whether minors (those under the age of 18) have a right to refuse medical treatment. Officers tell me the typical scenario usually involves minors who have been in an automobile accident, and the minors do not have any obvious injuries. American Medical Response (AMR) has a protocol stating that minors do not have a right to refuse evaluation or treatment and they must be transported to a hospital. When the minor protests, AMR requests police assistance to force the minor to be transported to a hospital.

According to AMR's attorney, the AMR protocol is based on K.S.A. 38-123b, which provides:

Notwithstanding any other provision of the law, any minor sixteen (16) years of age or over, where no parent or guardian is immediately available, may give consent to the performance and furnishing of hospital, medical or surgical treatment or procedures and such consent shall not be subject to disaffirmance because of minority. The consent of a parent or guardian of such a minor shall not be necessary in order to authorize the proposed hospital, medical or surgical treatment or procedures.     AMR's attorney says that because this statute allows those 16 or older to give consent where no parent or guardian is immediately available, it means that those under 16 cannot withhold consent to treatment. While transportation and treatment may be in the minor's best interest, and from a liability standpoint, AMR's protocol makes some sense; I disagree with AMR's interpretation of the statute. In my opinion, any person of suitable age and discretion is free to decline medical treatment. In Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 305, 111 L.Ed.2d 224, 110 S.Ct. 2841 (1990) (Brennan, J., dissenting), the United States Supreme Court held that freedom from unwanted medical attention is a fundamental constitutional right. See also Cruzan, 497 U.S. at 278 ("a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment"). The fact that a person is a minor and has been involved in an automobile accident does not necessarily make them incompetent.

    The crime of battery occurs when a person intentionally causes physical contact with another person when done in a rude, insulting or angry manner. K.S.A. 21-3412(a)(2). A medical care provider who does not obtain the informed consent of the patient can be guilty of battery. See Charley v. Cameron, 215 Kan. 750, 528 P.2d 1205 (1974).

    When officers are asked to force a minor of suitable age and discretion who has no obvious injuries to be transported for treatment, officers should respectfully decline. Please advise if you have any questions about this topic.