SIX St,. Med. Vol. ISF. pp 75 10 79. 1981 Prmted ,n Great Bntam All rIghta reserved

0211.5392/XI1010075-05SO2.00/0 CopyrIght 0 1981 Pergamon Prca Ltd

LEGAL AND ETHICAL IMPLICATIONS OF TREATMENT OF MINORS*

D. ADRIAN WILKINSON

Addiction Research Foundation, Toronto, Canada

Abstract-Statutes are used to discourage the use, by children, of licit drugs like alcohol and tobacco. The psychological literature supports the view that children under the statutory ages could make a knowledgeable or intelligent decision about drug use, however it is unlikely that children under the statutory ages would make a voluntary decision to use drugs, in the sense that the term voluntary is used in law. Research on drug use suggests that the decision to use is heavily influenced by the example of other people, both adults and peers. It can therefore be argued that children should be discouraged from being influenced towards drug use.

When the law is applied however it tends to be done in such a manner that the drug using child is culpable, rather than those who have encouraged the drug use. In law, minors seem to be considered incompetent to make the decision to use drugs, but culpable if they make such a decision.

The law is used in many jurisdictions to regulate the access of children to drugs that adults are permitted to consume. It is presumed that these laws are ben- evolent and instituted for the protection of the chil- dren, though they may also serve the purpose of pre- venting the citizens from being exposed to the sight of children using drugs, a sight that may be offensive to many. In this paper the ethical issues in legislation of this sort will be examined, and the possible role of psychologists in illuminating some of these points will be considered. The examples cited in the paper are from Ontario, but most of the points made are rele- vant to all areas governed by British common Law, and also most U.S. jurisdictions, though the specifics of law vary from jurisdiction to jurisdiction.

The age at which young people in Ontario are per- mitted to use licit drugs in public is defined by pro- vincial statutes. Under the Liquor Licence Act [l J no person under the age of nineteen is permitted to con- sume, purchase, attempt to purchase or otherwise obtain alcohol. The Act makes exception in the case that alcohol is consumed under the supervision of parents or guardians in their residence as defined in the Act. The Tobacco Restraint Act [2] prohibits the sale or giving of any tobacco product or cigarette papers to anyone under the age of 16 years. Keepers of cigarette vending machines should not permit their use by minors, and the Act prohibits persons under the age of 16 years from purchasing tobacco, having it in their possession, or from smoking or chewing tobacco in a street or public place.

It is interesting to compare these regulations with statutory control of the right to engage in other ac- tivities. A young person may obtain a licence to drive an automobile or motorcycle at age 16, an ambulance or bus other than a school bus at age 18 and a school bus at age 21. In order to be permitted to drive large trucks the required licence may be obtained at age 18. A permit to operate a snowmobile on public trails

* Portions of this paper were presented at the Inrer- national Conference on the Legal and Ethical Aspects of Health Careyor Children. Toronto. October, 1979.

may be obtained by a person 12 years old or older, but the right to cross a highway on a snowmobile at a 90” angle is not received before the age of 14.

Heavy machinery such as a bulldozer or combine harvester may be operated on private property with- out age restriction, although there are regulations governing the age at which one can be paid to do so One may apply for a pilot’s licence at the age of 16, but the licence cannot be issued until the applicant is 17 years old and has demonstrated the theoretical accomplishments that must precede practical training.

At the age of 16 a person can leave home, leave school without special dispensation, start to work in a mine (not a uranium mine; and not below the surface), or get married if parental consent is obtained. Widows, widowers and the divorced may re-marry without parental consent between the ages of 16 and 18.

There is no limit below which a child may not be left in charge of other children, though in the case of anyone less than 16 years of age the Child Welfare Act holds the parents responsible for ensuring proper supervision of children. There is a popular belief that babysitters should be at least 14 years old. This belief probably arises erroneously from the fact that Bill 70 governing the Occupational Health and Safety of Workers [3] does not permit the employment of minors in a store or office when they are less than 14 or in manufacturing industries when they are less than 15 years old, and then not during school hours.

At the age of eighteen a person achieves majority in Ontario. At this age voting, and the holding of public office are permitted. A person may become the direc- tor as well as an officer in a corporation, Contracts entered into are binding. (In minors contracts can be voided unless they are for ‘necessaries’.) There is no lower limit to the age at which one may purchase a lottery ticket, but the winnings of a minor may be held in trust by the Public Trustee.

No one may become a Federal Civil Servant before the age of 21.

This is but a sample of the statutory regulations governing access to different activities by young

75

16 D. ADRIAN WILKINSON

people in Ontario. In the face of this the three year difference between the age at which one can smoke in public and the age at which one can drink in public should not seem unusually arbitrary. It is clear that the age at which one can decide to engage in one of these activities is not necessarily determined by the potential importance of the decision for the child, or for society.

A more fruitful way to examine the laws regulating the use of socially sanctioned drugs by children may be to examine the arguments for having any statutory regulation of such behaviour. One argument that can be levied in support of such laws is that up to a certain level of development children are psychologi- cally incapable of making an informed decision to engage in a potentially hazardous behaviour. Accord- ingly, the law is used to reduce the probability of children making such a decision before they are com- petent to do so. The psychologist should be able both to provide empirical information which would sup- port or refute this assertion, and also to recommend normative ages at which competence could be reason- ably assumed in the normal child.

An alternative argument is that, independently of the ability of the child to make an informed decision about the use of drugs, there may be hazards to use that are peculiar to young people. For example, it might be argued that despite an understanding of the general hazards of drug use young persons are par- ticularly susceptible to the influence of inappropriate models of drug using behaviour, or that early depen- dence on drugs is much more difficult to break than dependence acquired at a later stage of life, or that intoxication by a drug might interfere more with newly acquired skills (such as driving an automobile) than when these skills are well established. All these possibilities would endanger the young drug user, even if, intellectually, he or she seemed capable of making an informed decision to use a particular licit drug. Again the psychologist should be capable of contributing to the formulation of policy by investi- gating such hypotheses empirically if they are the basis of the substantive component of laws.

THE ABILITY TO MAKE AN INFORMED CHOICE

I shall deal first with the matter of consent, and the particular problems that would arise in trying to de- termine whether a person could make an informed decision to use a particular drug.

The most relevant literature on this issue probably concerns the consent of minors to medical and psychological treatments. Work in this area has been prompted by the development of what has been termed the issue of ‘children’s rights’ [4-6]. Essen- tially the argument is that as a general principal children should have influence upon the things that are done to them in the name of assessment, treat- ment, education and other activities. This idea arises from the general principal of a right to self-determi- nation. The literature on the ability of children to give informed consent to particular treatments has been

l This concept is of relevance in U.S. Jurisdictions, but apparently not in Ontario, where the issue is one of com- mon law.

well reviewed [6,7]. The criteria for deciding in law that a child could give informed consent to a treat- ment are similar to those that might be applied to making an informed decision about drug use. In law. in order to give consent a person must reach the de- cision knowingly, intelligently and voluntarily. Grisso and Vierling point out that informed consent must be more than mere acquiescence to the influence of another, and that the person must be aware of the information relevant to the consent.

Grisso and Vierling differentiate Knowing consent. Intelligent consent and Voluntary consent. Briefly, Knowing can be interpreted as the understanding of information pertinent to the decision, which may be evidenced by the ability of the person to paraphrase that information. Intelligence in consenting is evi- denced by: ability to reflect before reaching the de- cision; to entertain alternate views to ones own; and to employ abstract and deductive and inductive pro- cesses of thinking. These abilities are associated with the emergence of the stage of cognitive development described by Piaget [S] as the stage of formal oper- ations. Voluntary consent involves deciding upon a course of action relatively independently of the social context in which the decision is made, that is in a relatively autonomous or non-conformist manner. In their review of the relevant psychological literature Grisso and Vierling concluded that Knowing and Intelligence could reaconably be expected in early adolescence in some cases and that the ability to make what in law would be considered a Voluntary decision would be less likely to occur before about the age of 15.

Because the law does not generally regard minors as competent to consent, exceptions to the presump- tion of incompetence require the application of a standard defining a mature minor,* that is one of suf- ficient intelligence to understand and appreciate the consequences of his or her actions. The psychological literature suggests that such cases are likely to occur in matters concerning consent to treatment. Could it be argued that some minors might achieve such status with respect to proposed drug use, and have their right to make such decisions frustrated by arbitrary laws? How would one empirically attempt to assess such abilities in the case of this particular behaviour?

Let us fancifully imagine that it was the policy of government to permit people to use cigarettes or alco- hol at a time when they could make an informed decision to do so. I believe that it would be quite simple to design procedures which could objectively evaluate the relevant knowledge of applicants for the privilege, provided that what constituted the ‘relevant knowledge’ could be specified. What would constitute the relevant knowledge in the case of proposed drug use? Would it simply be knowledge of the physical and psychological risks associated with heavy use? What knowledge would be required about expectancy effects and drug use? Should a minor have to weigh the fact that many people regard drug use by the young as somewhat obscene? Should the prospective user be aware of the effect his or her drug use will have on the probability of use by others? If demon- stration of any of this knowledge was required the precocious user would also be an exceptionally informed user. It is this feature of the issue that

Legal and ethical implications of treatment of minors 77

clearly demonstrates the difference between the choice to use drugs and choosing to consent to treatment or choosing to drive a car. In considering treatment the preseumpt~on is that the relevant info~tion is presented to the client. In choosing to drive a car the presumption is that the relevant proficiency must be demonstrated. Neither presumption is legitimate in the case of an adult choosing to smoke or to drink.

To pursue our fanciful notion further, the design of instruments to quantify the ability of the applicants to abstract principles from the knowiedge they were required to demonstrate would also probably not be very difficult, though more of the challenge, so the Intelligence of consent could .probably also be assessed. The scientific rub would come with assessing whether the application was voluntary, in the sense of the word we have used.

It is implausible to assume that the sample of pre- cocious applicants to smoke or drink would come from environments representative of the consumption pattern of the drug of interest in the population. They would probably come from drug using environments. Recent startling data on smoking and attitudes to smoking in pre-school and first grade children in Pennsylvania is germane to this point [9]. The chil- dren were questioned about their knowledge of, use of, and possible future use of tobacco products. One in four of the children reported use of some tobacco product. Of this group more than 807; said they would try them again. Of the children who knew a user oficigarettes 52.7% predicted that they would not use cigarettes in the future, but 1007, of the children who did not know a user said that they would not smoke in the future. A strong association was found between parental smoking and the prediction of future use and between the notion that smoking was adult and the prediction of future use. These data suggest that there are very powerful effects of the modeling of smoking by significant adults on quite young children. Whether such effects persist to ado- lescence and significantly predict the probability of smoking in later life are questions that must be addressed by future research.

Bynner [lo] found that four factors discriminated 70% of smoking adolescent boys in England and Wales and 100% of non-smokers. The factors were, smoking of friends, anticipation of adulthood, per- missiveness of parents and fear of lung cancer. Prob- ably the association between parental smoking and current smoking is weaker in older children with broader social contacts, but this does not mean that the elects of the early models of the behav~our have not affected the nature of the subsequent social network. It is probable that similar effects would be found for alcohol and in children of different ages. Clearly longitudinal studies of drug use in children are demanded by the current data. Any adequate study of the ability of minors to make informed de- cisions about drug use‘ would have to try to take account of the influence of drug using models on the desire to use drugs and anticipated pattern of use of drugs. It seems plausible to suggest that such effects might constitute an important part of the ‘social learning’ which would colour the nature of tbe ‘volun- tary’ act of deciding to use or not use a particular drug. s.s.u(F:. 1s 1-F

The problem is that ‘voluntary’ decisions to use drugs are probably determined by verbally mediated information and may ignore the contribution of non- verbal modelled ~haviour on sub~uent drug use. (This is probably as true for adults as for younger people, at least during acquisition of the behaviour.) Studies in minors of the relationships between drug use, intent to use. drugs, drug use of family and friends and perceived drug user norms should precede serious attempts by social scientists to make recommen* dations about the ability of minors to make informed decisions with respect to their own drug use.

CHILDREN ARE AT GREATER RISK FROM DRUG USE

The preceding argum~t was based upon the assumption that statutory pros~iptjon of use of licit drugs by children is designed to prevent ill-informed decisions to use the drugs. This assumption could well be false. It could be argued that assessment of the possibility of making an informed decision to use drugs is neither possible nor relevant to the dangers inherent in such use by children. The age at which an informed decision-to-use could be made would there- fore be irrelevant to any decision about statutory age restrictions.

Various data can be levied in support of this argu- ment, the most crucial of which is that there is an established relationship between age of onset of smoking in both males and females and subsequent failure in treatment for smoking [I 1,121. Of course the same factors may cause both early initiation of and resistance to cessation of smoking. This finding however suggests that at a minimum research should be condacted to determine whether early exposure to a drug reduces the probability that subsequent seff- admj~istration can be extinguished.

An additional argument against the notion that statutory control is used to reduce the chances of an ill-advised decision to start using drugs is that in the case, at least of some drug use, the decision to use would almost never be possible because the decision could never be anything but ill-advised. Some data [13] indicate that very little smoking of cigarettes is required to establish the behavjour. If dependence is ill-advised then any use is ill-advised. Society can make the decision to try to restrain young people from engaging in an activity which is known to be ill-advised. This conclusion seems quite tenable in the case of tobacco.

lNCONGRUITIES IN THE LAW

The risk of habitual heavy use of alcohol does not appear to be as great as for cigarettes. However, the age at which public alcohol consumption is permitted in Ontario is 19 as opposed to 15 for cigarettes. In this respect the protective role of the law does not appear to be rationaliy based. A more significant short-coming of the law as it stands, if the aim is to prevent exposure to drugs, is that use in the residence of the minor is not proscribed. We have little evidence to suppose that there is less risk in supervised rather than unsu~rvis~ smoking. though the ~gument might be made in the case of drinking.

78 D. ADRIAV

The law should probably be both enforceable and enforced in order to have some effect. There are very different practices in Ontario with respect to the. ap- plication of the laws on underage tobacco use and underage use of alcohol. Alcohol legislation is enforced and because many of those charged are more than 16 years of age, and even in their majority, many cases are dealt with in adult court [14]. In contrast the law on smoking is very little enforced, and cases are heard in juvenile court. Since the law is not enforced it presumably has little effect except as a moral lever for persons in authority over children.*

There is considerable evidence that modeling of drug using behaviour, and parental licence are im- portant determinants of early drug use. The work of Bynner [lo] suggests that the influence of friends and anticipation of adulthood may be important determinants of the maintenance of the behaviour. Despite this empirical data the current practice of law in Ontario is essentially that children (and even some adults) are held to be incompetent to make the de- cision to use drugs that are available to most adults. However if children “incompetently” make such a de- cision they can be held accountable and either charged with juvenile delinquency or deemed in need of protection under the Child Welfare Act. People drinking underage but over 16 years old are pro- ceeded against under the Criminal Code. They are not therefore treated as minors in need of protection, but as criminals.

Despite the fact that young people smoking or drinking can be penalised for the behaviour there is little in law to hold adults responsible for the examples they set, and by which they probably deter- mine much of the children’s behaviour. Some sections of the law indicate that such examples have been con- sidered when laws are drafted. Section 166 of the Criminal Code reads:

“Everyone who, in the home of a child,. indulges in habitual drunkenness or other form of vice and thereby endangers the morals of the child or renders the home an unfit place for the child to be in, is guilty of an indictable offense and is liable to imprisonment for 2 years.”

Proceedings under this section may only be com- menced with the consent of the Attorney General, unless they are instituted by a recognized society for the protection of children or by an officer of the juvenile court. I have not obtained data on the fre- quency with which the habitual intoxication of a parent was considered by an agency to be a more important feature of a case than the underage drug consumption of a minor. It might be interesting to know.

Action might also conceivably be taken under the Juvenile Delinquents Act [lS]. Sections 33(I)(b) and (II) read:

* It is possible that laws may exert some effects on be- haviour simply by being laws. Evaluation of this hypoth- esis may be possible in view of the recent enactment into law in Sweden of a prohibition on spanking which the authorities hope will be effective as an official moral cen- sure of parents who practice corporal punishment of their children. The legislators admit that the law is unenforce- able.

WILKINSON

(I) Any person, whether parent or guardian of the child or not, who knowingly or willfully,,

(b) does any act producing, promotmg, or contributing to child being or becoming a juvenile delinquent or likely to make any child a delinquent,

is liable on summary conviction before a Juvenile Court or a magistrate to a fine not exceeding $500 or to imprison- ment for a period not exceeding two years, or to both. (II) Any person who, being the parent or guardian of the child and being able to do so. knowingly neglects to do that which would directly tend to prevent the child being or becoming a juvenile delinquent or to remove the con- ditions that render or are likely to render the child a juven- ile delinquent is liable on summary conviction before a Juvenile Court or by a magistrate to a fine not exceeding $500 or to imprisonment for a period not exceeding 2 years, or to both.

Wilson [16] notes with respect to drug use that the conduct of the accused must contribute to a state which is considered as delinquent according to the definition of a juvenile delinquent under Section 2(I) of the Act. Since the act of glue sniffing cannot be brought within this definition a person aiding or abet- ting a child to indulge in glue sniffing could not be convicted under Section 33.

As a layman I suspect that “habitual drunkenness” and “knowingly or willfully.. contributing” would have to constitute such flagrant behaviour to be con- sidered in law that the subtle effects of modeling and otherwise affecting the behaviour of the young could not be onsidered as the law stands. The result is that we can confidently state that delinquent or illegal be- haviours with respect to use of licit drugs are being encouraged in young people by psychological pro- cedures whose. general mechanism is well understood. The psychological procedures we now have available to us suggest that many of these young people are as well equipped as most adults to decide to engage in these behaviours but if they do so they are legally stigmatised. It can be argued on the basis of the evi- dence considered here, that if the law is to intervene in these matters in the interest of the child it might do well to consider ways in which it can influence the behaviour of the adults in the environment of the child, instead of penalising the child for the effects of what should be a protective environment.

1.

2.

3.

4.

5.

6.

7.

8.

REFERENCES

Liquor Licence Acr. Statutes of Ontario, Chapters 12. 42, 1978. Tobacco Restraint Act. Revised Statutes of Canada, 1970. Occupational Health and Safety Act. Statutes of Ontario, Chapter 83, 1978. Foster H. and Freed D. A bill of rights for children. Family Law Q. 6, 343, 1972. Rodham H. Children under the law. Hart. Educ. Rec. 43, 487, 1973. Catton K. Children and the law: an empirical review. In The Child in the City: Changes and Challenges (Edited by Michelson W. et al.), p. 179. University of Toronto Press, Toronto, 1979. Grisso T. and Vierling L. Minors’ consent to treat- ment : developmental perspective. Prof. Psychol. 9, 412. 1978. Flavell J. H. The Developmental Psychology of Jean Piaget. Van Nostrand-Reinhold. Princeton, NJ 1963.

Legal and ethical implications of treatment of minors 79

9. Shute R. E. Initiation of information-based program- ming for smoking education in elementary schools. Unpublished report to the American Cancer Society, 1979. 13.

10. Bynner J. M. The Young Smoker. Government Social Survey, p. 269. Her Majesty’s Stationery Office, Lon- don, 1969. 14.

11. McArthur C., Waldron E. and Dickinson J. The psy- chology of smoking. J. Abnorm. sot. Psychol. 56, 267, 15.

1958.

Issues in Smoking Behavior (Edited by Zagona S.V.), p. 95. The University of Arizona Press. Tucson. 1967. Gilbert R. M. Ethical considerations in the prevention of smoking in adults and children. Medicoleyal New.5 8, 18, 1980. Vingilis E. A review of the young drinking offender: is he a problem drinker? Br. J. Addict. 76, 27, 1980.

Child Welfare Act. Statutes of Ontario, Chapter 85, 1978.

12. Guildford J. S. Sex differences between successful and 16. Wilson J. Children and the Law. Butterworths, Tor- unsuccessful abstainers from smoking. In: Studies and onto, 1978.