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“Paternalistic decisions are to be guided by the individual’s own settled preferences and interests insofar as they are not irrational, or failing a knowledge of these, by the theory of primary goods. As we know less and less about a person, we act for him as we would act for ourselves.... We try to get for him the things he presumably wants whatever else he wants.

Recent Supreme Court decisions concerning institutional care to mentally ill or retarded children are both contradictory and surprising. For example, the Court has recently permitted the “sterilization of a minor female on ex parte judicial authorization because her mother alleged she was ‘somewhat retarded,’ ‘associating with elder youth and young men,’ stayed out overnight with them on several occasions, in order ‘to prevent unfortunate circumstances’ …”

The Court has also permitted the “commitment of a juvenile to a mental institution by his family or guardian without a hearing before commitment.” On the other hand, the Supreme Court has ruled that the Constitution mandates that “a state may not permit a parent to veto an abortion by a minor child,” and “[A]n individual can only be confined in a mental institution after a hearing at which the standard of proof is ‘greater than the preponderance of the evidence standard’ but less than proof beyond a reasonable doubt.”

It seems incongruous to require a high degree of proof for involuntary hospitalization of the mentally ill, but then to require no hearing on that issue for children. Although the commitment of children is considered voluntary, the Court has recently decided that they can be committed summarily because often they were too young.’ In cases involving the voluntary commitment of children, the Court purports to serve certain interests and purposes. This article will focus on two recent cases, Parham v. J.R. and Secretary of Pub. Welfare of Pennsylvania v. Institutionalized Juveniles, dealing with the voluntary confinement of children to state mental institutions.


Allen Edward Shoenberger is an Associate Professor, Loyola University School of Law. B.A. Swarthmore College, 1966; J.D. Columbia University, 1969; LL.M. New York University, 1972.

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