County—Kennestone Hospital Authority, 849 F Supp 1559, DC Ga, 74 F 3d 1173, CCA 11 1996).
Except for West Virginia, states do not permit a minor, even if legally emancipated, to create a legally enforceable living will, durable power of attorney, or other statement that he or she would want treatment stopped in case of serious illness or accident (Hawkins, 1992).17 This does not mean that the physician should neglect to find out what the child’s views on continuing treatment may be if the long-term prognosis is not good (AAP, 2000g). Those views should still be taken into account when decisions are made (In re Chad Swan, 569 A 2d 1202, Maine 1990).
When parents and an adolescent patient disagree, the physician is the patient’s, not the family’s, advocate. If the prognosis is poor and the patient has “had enough,” the physician is professionally obligated to do everything she or he can to persuade the parents to let the child’s views control. Therapies that the physician considers inadvisable may not be required by distraught parents. On the other hand, if the prognosis is good but the patient does not want to continue therapy, the physician’s responsibility is to understand and respond to the child’s fears and help her or him through the treatment.
Although there may be instances in which parents are bitterly divided on the wisdom of continuing life-sustaining treatment for a child who is likely to die, the committee located only one case on the question. A terminally ill 13-year-old girl was in a coma. Her mother agreed with her physicians that a DNR order was the appropriate next step. Her father adamantly disagreed and wanted her treated as aggressively as possible. The hospital turned to the court for guidance, and the trial court and state supreme court each held that both parents had to agree before a DNR order could be written (In Re Jane Doe, 262 Ga 389, 418 SE 2d 3, 1992).
In cases of this sort, the parent who wishes the child to continue “living” is likely to be upheld by a court. If the parents are divorced, the legal custodian is likely to prevail in such a conflict (Durfee v. Durfee, 87 NYS 2d 275 NY 1949).
In 2000, West Virginia passed the Health Care Decisions Act (Annotated Code of West Virginia, Chapter 16, Article 30, Section 3(b)), which defines an adult, for purposes of health care decisionmaking including advance directives, as “a person who is eighteen years of age or older, an emancipated minor who has been established as such pursuant to [other laws], or a mature minor.” A mature minor is “a person less than eighteen years of age who has been determined by a qualified physician, a qualified psychologist or an advanced practice nurse in collaboration with a physician to have the capacity to make health care decisions.”