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Minor Access to Prophylaxes in Massachusetts: STI Consent, the Mature Minor Rule, and the Definition of "Treatment"

By Jason Potter

The Massachusetts Joint Committee on Public Health is currently considering House and Senate bills to amend the Commonwealth’s emergency consent statute (Section 12F), which allows certain minors to self-consent to general medical care, and allows all minors to self-consent STI diagnosis and treatment. The bills would add the term “prevention” to the Commonwealth’s STI consent statute, thus allowing minors in Massachusetts to consent to STI diagnosis, treatment, and preventive care. Known as the “PrEP Bill,” S.1186 and H.3249 are sponsored by Senator Julian Cyr and Representative Jack Lewis, respectively. The senators are seeking to expand the language of the portion of Section 12F pertaining to STI-related care so minors may consent to HIV Pre-Exposure Prophylaxis (PrEP) and the human papillomavirus (HPV) vaccine. In my 2016 article PrEP and Our Youth: Implications in Law & Policy, I proposed this very change. On June 27, 2017, I testified before the Joint Committee in support of the PrEP Bill.

In its coverage of the hearing, the State House News Service declared that “[c]urrent law allows minors to consent to care without permission from a parent for treatment of sexually transmitted infections and HIV, but not for pre- or post-exposure treatments for HIV or for the human papillomavirus vaccine.” This suggestion that the PrEP Bill necessary to permit minors to self-consent to PrEP in the Commonwealth is not exactly true. If PrEP is considered a “treatment” under the Commonwealth’s common law “mature minor” rule and/or its STI consent statute, this would provide ample justification for furnishing PrEP to minors without parental consent. In this post, I argue that there is ample support for classifying PrEP, a prophylactic therapy, as “treatment” under either the common law rule or the Commonwealth’s STI consent statute. Therefore, while the PrEP Bill may provide clarification that preventive care is covered under the statute, it is not true that the bill is necessary to achieve that end.

In Massachusetts, notwithstanding statutory limitations, a minor with sufficient capacity to give informed consent may self-consent to medical care if the minor’s best interests are served by declining to seek parental consent. A court need not make the best interests determination; that assessment may be done by the provider. In Baird v. Attorney General, a 1977 case in the Massachusetts Supreme Judicial Court (SJC), the SJC concluded that “apart from statutory limitations . . . , where the best interests of a minor will be served by not notifying his or her parents of intended medical treatment and where the minor is capable of giving informed consent to that treatment, the mature minor rule applies in this Commonwealth.” The SJC then clearly stated that judicial intervention is not required, declaring that “[i]n such a case, . . .  judicial involvement is not required.” This common law rule, which is still good law in Massachusetts, is distinct from Section 12F. In fact, the Baird Court noted as much, stating that Section 12F “does not include all minors who might qualify in particular circumstances for application of a mature minor rule.” This language implies that the SJC intended the scope of the common law rule to be broader than the legislative rules.

Some community advocates in Massachusetts have indicated that the Baird Court’s mature minor rule is ineffective as applied to PrEP. According to advocates, the SJC’s specification of “treatment” (an undefined term) numerous times in the Baird holding leaves room for speculation as to whether PrEP is included. The argument goes that under a traditional definition of “treatment,” defined as the management and care of a patient to combat a disease, disorder, or condition, PrEP would not be included. PrEP is a prophylactic therapy prescribed to individuals who are not infected with the underlying disease, disorder, or condition and is, thus, distinct from treatment.

However, there are numerous reasons why prophylaxes are, indeed, treatments. First, the medication primarily used for PrEP is Truvada, an antiretroviral traditionally used as therapeutic HIV treatment but also applied for preventive purposes. The medication at the core of PrEP is principally a treatment drug. Second, excluding preventive therapies from the definition of treatment is logically inconsistent with the Baird Court’s intent to craft a broad rule. Such an implication would essentially mean that, in the ambit of STI-related care, the Commonwealth’s mature minor rule is functionally narrower than the STI-related language in Section 12F. Both specify treatment, but Section 12F also pertains to diagnosis (the common law rule does not), and further, the statute does not require the additional best interests consideration required by the Baird rule. In other words, a narrow reading of “treatment” in Baird that excludes prevention would mean that the common law rule is no more permissive but is, in fact, more limited than the statutory rule. This runs counter to the Baird Court’s suggestion that its mature minor rule should apply to circumstances outside the scope of the consent statute.

But more importantly, an interpretation of the term “treatment” that excludes PrEP ignores the fact that a minor may already self-consent under the common law rule (and Section 12F, for that matter) to HIV post-exposure prophylaxis (PEP). PEP is a combination of Truvada and another ARV administered for thirty days and is highly successful at preventing seroconversion if furnished within a 72-hour window of possible exposure to HIV. PEP is widely considered a “treatment.” After all, PEP treats the condition of exposure to HIV in those at significant risk of HIV infection. PrEP, too, is indicated for those “very high risk of coming in contact with HIV,” as these individuals sometimes have sex without a condom “when they have sex with a person who has HIV infection,” according to the CDC. Thus, the clinical profile of PrEP contemplates that the patient has already engaged in conduct that may have exposed him or her to HIV. Because both PEP and PrEP are considered appropriate for those who may have been exposed to HIV, the two therapies are so closely related that they are indistinguishable. The two therapies even share coding; recommended coding for both PrEP and PEP are “contact with and (suspected) exposure” to HIV (ICD-10, Z20.6). But the similarities do not end there. Both are termed prophylaxes. Both are “event driven” treatments. Both involve the same high-risk group. Both use the same drugs and have similar risks and benefits. (In fact, PEP may involve more risk to the minor because another ARV is added to the therapy.) Thus, since a minor may consent to PEP as treatment under the Baird mature minor rule, there is no reasonable argument that the law would exclude PrEP. In fact, in one of the only PrEP-related court decisions in the world, an Irish high court recently reached the same conclusion about the indistinguishability of PrEP and PEP, finding that any differences between the two “are differences without relevant distinctions.” [p. 31]. The indistinguishability of PrEP and PEP, in part, led the High Court of Justice to conclude that PrEP is a “treatment” under NHS England’s rules. [pp. 35-37].

Nearly all of these arguments that PrEP is a treatment apply with equal force to the STI consent statute, which is limited to “diagnosis and treatment.” But a consideration of whether PrEP is a treatment isn’t even necessary under the plain language the Section 12F. All that’s necessary is consideration of whether PrEP is related to diagnosis or treatment of HIV, for the STI consent statute states that a minor who believes himself to have or come into contact with an STI may “only consent to care which relates to the diagnosis or treatment of such disease.” There is no ambiguity here. PrEP is surely a type of care related to the treatment of HIV. PrEP is prescribed so the patient doesn’t need treatment in the first place. Not needing something is related to something. Since a prophylaxis prevents the need for treatment of infection, it relates to treatment of infection. Thus, I strongly aver that PrEP therapy (and the HPV vaccine, for that matter) may be prescribed under the existing STI consent statute pursuant to a plain reading of the statute.  

Therefore, the Commonwealth’s mature minor rule and its STI consent statute are each an independent basis for furnishing PrEP without parental consent. Providers in the Commonwealth should be especially confident furnish PrEP to self-consenting minors under the STI consent statute because it doesn’t even require taking the risk that a court may not consider PrEP a “treatment” if the issue was litigated. Again, all the STI consent statute requires is that the care is related to treatment of HIV.

Thus, while I support the PrEP Bill insofar as it eliminates any uncertainty in current law, I am not doing so because the PrEP Bill is necessary for minors to consent to PrEP in the Commonwealth. It is not.