In Idaho, persons under the age of 18 ("minors") may consent to their own healthcare in only limited circumstances. Treatment of a minor without proper consent may expose the practitioner to tort liability for lack of informed consent or battery in addition to limiting the practitioner's ability to receive payment for the care. The following summarizes the current rules for minor consents in Idaho.
General Rule: Obtain Consent from Parent or Surrogate Decision Maker. Idaho Code § 39-3503 sets forth the general standard for determining whether a person is competent to consent to their own healthcare:
Any person who comprehends the need for, the nature of and the significant risks ordinarily inherent in any contemplated hospital, medical, dental, surgical or other health care, treatment or procedure is competent to consent thereto on his or her own behalf.
(Emphasis added). Although the reference to "any person" would suggest that sufficiently mature minors may consent to their own healthcare, the next code section, § 39-4504(1), states:
Consent for the furnishing of … health care … to any person … who is a minor may be given or refused in the order of priority set forth hereafter…
(a) The court appointed guardian of such person;
…
(e) A parent of such person;
(f) The person named in a delegation of parental authority executed pursuant to [I.C. § 15-5-104];
(g) Any relative of such person who represents himself or herself to be an appropriate, responsible person to act under the circumstances;
(h) Any other competent individual representing himself or herself to be responsible for the health care of such person; or
(i) If the person presents a medical emergency or there is a substantial likelihood of his or her life or health being seriously endangered by withholding or delay in the rendering of such … health care … , the attending health care provider may, in his or her discretion, authorize and/or provide such health care, as he or she deems appropriate…
(Emphasis added). Given the specific reference to minors in § 39-3504, unless and until the statute is changed or an Idaho court provides a contrary interpretation, the more conservative approach is to assume that a minor may not consent to their own healthcare unless (i) the minor is emancipated, or (ii) another statute authorizes the minor to consent or allows treatment without consent as discussed below.
Exceptions. Minors may consent to their own care in the following situations:
1. If the minor is emancipated. Although there do not appear to be any Idaho cases and few statutes on point, minors will likely be deemed to be emancipated and competent to consent to their own healthcare if:
- A court has entered an order that declares the minor to be emancipated. (I.C. § 16-2403(1)).
- The minor is married or has been married. (See I.C. §§ 16-2403(1), 18-604(3), and 66-402(6); see also id. at §§ 32-101(3) and 15-1-201(15)).
- The minor is serving in the active military. (See I.C. § 18-604(3)).
- The minor has rejected the parent-child relationship, is living on their own, and is self-supporting. (See I.C. §§ 66-402(6) and 32-104; see also Ireland v. Ireland, 123 Idaho 955, 855 P.2d 40 (1993), and Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963)).
Contrary to common belief, pregnancy does not appear to be an emancipating event under Idaho law. The Idaho legislature has declared that "[t]he capacity to become pregnant and the capacity for mature judgment concerning the wisdom of bearing a child or of having an abortion are not necessarily related…." (I.C. § 18-602(d)). Accordingly, Idaho's abortion statute generally requires parental consent before an abortion may be performed on a minor unless certain emergency or judicial bypass conditions are satisfied. (I.C. § 18-609A). Consent would not be necessary if pregnancy were an emancipating event. Idaho Code § 18-609A specifically refers to a "pregnant unemancipated minor" which would not exist if pregnancy were an emancipating event. Although these sections arise in the context of abortion, it is reasonable to assume that the same principle applies in other healthcare...
