Consent for Minors
Consent for Minors
By Jonathan D. Lawrence, MD, JD, FACEP
Editor’s Note: The question of consent has been muddied in recent years by the practice of managed care organizations giving or withholding "authorization for treatment" for their plan members. In reality, only the patient or the patient’s legal representative may authorize medical examinations and care. With respect to children, this means a parent or guardian is responsible for the consent to allow medical personnel to attend to minors in their care. This raises all kinds of issues that do not arise when a person is giving consent for his or her own medical treatment. For example, what if the person required to give consent is not available when the care needs to be administered? Or, worse, what if the parent or guardian makes a poor decision by withholding consent in a life-threatening situation? Are there situations where society as a whole would benefit by allowing certain minors to consent for their own treatment? How does EMTALA/COBRA fit into this scheme of consent?
This article answers these questions and more by taking the example of California law to illustrate the fundamental principles of consent for minors. The basic rules, the exceptions, and basic procedures, as well as advice for difficult situations, are given. With this information, the emergency physician will have a basic understanding of minor consent issues and be more confident when addressing these stressful consent-related situations.
The Basic Principles of Consent
Our society’s view of consent for medical diagnosis and treatment is based on the broad notion of the inviolability of the individual. The courts recognized this principle as applying to medical treatment as early as 1914.1 In general terms, this means that absent consent, every person has the right to refuse unwanted touching of his or her body by another. A violation subjects the toucher to possible complaints of assault and battery, which are compensable intentional torts. Although rarely applied in emergency medicine, assault and battery are common complaints in surgical malpractice cases, where the issue is often the lack of informed consent. Here, the patient agrees to being touched but would not have done so had he or she known all the facts prior to surgery.
One of the caveats of the principle of consent is that the person must be "competent" in order to invoke it. Competency in this context may be defined as the ability to comprehend and rationally act upon information provided by a health care professional. Incompetency assumes two basic forms. The first is based upon a person’s alteration of mentation so that his or her consent (or lack of consent) is of no force or effect. Intoxication and active psychosis are good examples. Determination of incompetence may also be based on common law or statute. The issue of consent for minors falls under this second category. There are many minors who are fully capable of rational thought, yet by law are deemed incompetent with regard to their own health care decisions.
The age at which a minor reaches majority varies from jurisdiction to jurisdiction and also varies as to the act to be consented to. In the vast majority of states, the age of consent for medical treatment is 18 years. Below this age, a person is deemed incompetent or incapable of giving consent for medical treatment. Incidentally, a person under 18 years of age also cannot enter into contracts, which voids any promises made to pay for medical services. (Though in many states a minor is liable for the reasonable value of the "necessaries of life" furnished to him or her under the principle of "quasi-contract.")
In general, the law assumes that a competent individual will act on the incompetent minor’s behalf. Most of the time this will be the child’s parent. Sometimes, a guardian is assigned to protect the child’s interest. The type of individual who may serve as guardian varies from state to state and may include the state itself.
The astounding variety of situations in which children live leads to a potential minefield of problems regarding consent issues. Most of these problems find their solutions in state law, but the emergency physician may, on occasion, find him- or herself without options and must consult with hospital counsel for answers. The following discussions refer to California law as an example. A detailed comparison of different states’ statutes would be too voluminous for this publication. The law in your state may or may not have similar provisions. As always, refer to the statutes in your jurisdiction.
EMTALA/COBRA
Before proceeding, a brief discussion of the emergency consent doctrine and EMTALA (COBRA) is required.
Most emergency physicians are generally familiar with the provisions of EMTALA (COBRA). In short, among other things, it requires a hospital to provide for an appropriate medical screening examination to any individual who comes to the emergency department (ED) for examination or treatment of a medical condition to determine whether the individual has an emergency medical condition (italics added).2 Clearly absent from the language of the law is any reference to the age of the individual requesting treatment. Therefore, any minor who presents to the ED requesting treatment for a medical condition requires, at a minimum, a screening examination, whether or not consent has been obtained from a parent or guardian. If no emergency medical condition is found (keeping in mind EMTALA’s broad definition of emergency), then normal consent procedures can proceed. If an emergency condition is found, and parents or guardian cannot be located, then the minor should be treated consistent with the emergency consent doctrine.
The emergency consent doctrine (sometimes known as the implied consent doctrine) is an exception to the general principle of consent. This principle applies to both adults and minors. It states that, in an emergency, when it is impossible or impracticable to obtain consent, either from the patient or from someone legally authorized to consent for the minor, a physician may undertake treatment provided that what he or she does is within the customary practice of physicians of good standing in the same or similar locality and under similar circumstances. This definition is taken directly from the instructions that juries are given in California when the issue of emergency comes up in trial.3-6
In another jury instruction, emergency is broadly defined as "an unforeseen combination of circumstances creating a condition which, in the professional judgment of a physician of good standing acting under the same or similar circumstances, requires immediate care, treatment, or surgery in order to protect a person’s life or health."7-9 The practical aspect to the doctrine is that, in an emergency, an injured or ill child should be treated regardless of the availability of a parent or guardian. Naturally, continuing attempts to contact the family are advisable. Remember, as you read the rules of consent in the following sections, no rule takes precedence over the well being of the child. Emergency physicians are well-advised to consider the formal rules of consent after emergency treatment and stabilization have occurred.
Occasionally problems will arise when a minor refuses emergency treatment. In California, minors under the age of 14 have no such right of refusal. Minors between 14 and 18 years of age have a qualified right to refuse procedures involving significant risk of severe adverse consequences. Time permitting, hospital counsel may need to seek a court order in such instances.
General Consent Issues for Minors
Minors Accompanied by Parents
Minors presenting to the ED accompanied by parents present the least number of consent issues. The general rule is that a minor’s parents have the legal capacity to consent to the treatment of a minor and at least one parent’s consent must be obtained. Since fewer than half of the children in the United States live with married natural parents, considerable variations can and do occur. For children whose parents are divorced, the consent of either parent is sufficient. If a conflict arises between the parents, the parent who has sole legal custody has the final say. If the divorced parents have joint custody, then either has the right to consent to health care, unless the court decree requires the consent of both.10 If a conflict arises between the divorced parents in the latter case, a court order would be required to resolve the dispute. If the delay to obtain such an order would be detrimental to the child, treatment should proceed with clear documentation explaining the need for immediate action.
Another general rule is that only natural parents may consent for their minor children. Stepparents do not have general authority to authorize medical treatment unless they have legally adopted the minor or have the limited authority granted under the California Caregiver’s Authorization Affidavit (see below). In most states, the natural father of a child born to an unwed mother has full legal authority to give consent. On occasion, there may be some doubt as to the authenticity of the claim of paternity. In such circumstances, and time permitting, some proof, such as a court judgment or order establishing the father-child relationship, should be sought prior to undertaking potentially dangerous treatment.11
A minor parent may give consent for treatment for his or her child. In some states, this leads to the anomalous situation where a minor may give consent for his or her child but not for him or herself. Also, since a minor cannot validly enter into a contract, the minor parent may not be held financially responsible for the health care provided to the child. Some states have resolved this anomaly by giving minor parents the statutory right to give consent for their own health care.
Guardians
The rules for guardians are a little more complicated. This is because the role of guardian can vary from case to case depending on the order from the court. In fact, in some situations the parents may retain some or all of the ability to consent for medical treatment. For this reason, emergency personnel should ask for the letters of guardianship in order to determine the scope of the guardian’s authority. If a conflict arises between parents who retain some authority and the guardian, hospital counsel should be consulted. The general rule in California, however, is that a guardian has the same authority as a parent for nonsurgical treatment of the minor.12 For surgical treatment, the consent of the minor and the guardian are required if the minor is over 14 years old unless a true emergency exists, in which case the guardian can overrule the minor. A court order will also overrule the minor’s objections to surgery.13
Many states also place additional restrictions on the guardian’s ability to authorize a number of other treatments. The only restriction of concern to emergency physicians is the additional requirements often placed on the guardian before placing the child in a mental health facility. Since all these rules are jurisdiction-specific, consultation with an authority knowledgeable in local law is necessary.
Minors Unaccompanied by Parents or Guardian: A Potpourri of Situations
1. Minor Students: State law often provides that a child who becomes ill or injured at school during regular school hours may receive reasonable treatment without the consent of the child’s parents or guardian. The prerequisites for this authorization are that the parents cannot be reached and the parents have not previously filed with the school district an objection to the provision of more than simple first aid.14
2. Abandoned Minors: After providing emergency stabilization if necessary, the emergency physician should contact the local juvenile court or probation department for assistance in making the minor a ward of the court. In California, a minor over the age of 16 can apply to the court directly for an order permitting consent for medical treatment.15
3. Wards or Dependents of Juvenile Court: The court in these cases may give consent for treatment as though it were the minor’s guardian. In cases where the petition to make the minor a ward or dependent of the court has not been finalized, the parents or guardian still have authority to consent for the child. In these cases, the court may authorize consent if the parents cannot be found or if they refuse to consent to treatment.16
4. Minors in Custody of Police: Commonly, emergency physicians find themselves asked by law enforcement to examine and treat a minor being held on suspicion of committing a crime before taking the minor for booking. Often, the minor is injured or suspected to be under the influence of an intoxicating substance. In these situations, the police do not have the authority to consent for the minor’s examination and treatment without a ccourt order. Physicians should provide a screening examination as required by EMTALA/COBRA and, if an emergency condition exists, proceed to stabilize the patient under both the EMTALA requirement and the emergency consent doctrine. If no emergency condition is found, the emergency physician must wait for consent from the minor’s legal guardian, absent a court order, before providing further care. This would include requests for blood tests by the police in the absence of an emergent medical condition requiring such a test. It should be noted that this may be a gray area, since COBRA/EMTALA allows the request for examination or treatment to be by the individual or by someone acting on behalf of the individual. Such language leaves open the question as to the nature, if any, required of the relationship between the person requesting the examination on behalf of another and the patient. The safest course of action is to definitely do the screening examination, if the minor agrees. If the older minor (14 years and older) is oriented and appears competent but refuses the examination, or if non-emergent treatment is required, contact the parents or guardian first. If the parent or guardian cannot be located, then the minor may have to be made a temporary ward of the court.
5. Minors in Custody of Foster Parents: If the child has been placed in foster care by court order after a final hearing, then the foster parent has the authority to consent to ordinary treatment.17 In California, non-emergent surgery, however, would require consent from the legal custodians or the court. If the child is in foster care temporarily pending a hearing, then the foster parent has no authority to consent to any treatment absent a court order. Normally, foster parents are licensed by the state or county and are well aware of the requirements of the law with regard to carrying the necessary papers authorizing their consent privileges. If any questions arise, of course, hospital counsel should be consulted.
6. Suspected Child Abuse Victims: California law allows emergency physicians and other MDs to obtain a skeletal survey to assist in diagnosing child abuse without the consent of the parents or guardian.18 If further treatment is necessary, parental consent is required; if refused, the proper authorities should be contacted to make the child a ward of the court. This will usually involve the local child protective services agency. This is a fairly common problem situation faced by emergency physicians. Therefore, EPs should be familiar with the relevant statute or regulation in their jurisdiction.
7. Nonabandoned Minors; Parents Unavailable: Children often show up to EDs accompanied by baby-sitters. Other similar situations include children injured during day or summer camp. Most states allow previously written consent by the parents or guardian to be used as consent for treatment. These consent forms have to be addressed to the person or organization taking care of the child. Most legitimate organizations that take care of children have these written consents on file in case of emergencies.
Parents may send their minor children to the hospital with a written note giving consent for treatment. These should be honored unless ED staff question their legitimacy. A copy of the note or form should be part of the chart. If any treatment out of the ordinary is contemplated, particularly admission to the hospital or surgery, then contact with the parent or guardian is advisable. Phoned consent, in the absence of a written note, is acceptable though not preferred. The conversation regarding consent should be witnessed and documented with signature by two members of the ED staff.
A typical problem arises with casual baby-sitters bringing children who have become ill while in their care into the ED. Just as typically, the parents of these children don’t appreciate the legal predicament facing their child in case of emergency by failing to leave a note with the sitter authorizing treatment. Again, the emergency consent doctrine, EMTALA/COBRA, and common sense take precedence over paperwork. Simultaneous with treatment to stabilize the child, steps should be taken to contact the parents or legal guardian. What is clear, however, is that the baby-sitter is not permitted to consent for treatment.
In response to the recognition that a great many children live in what are called "non-traditional households," California recently enacted a law permitting caregiver’s authorization.19 This allows a non-parent adult relative with whom the minor is living to authorize medical care, if certain requirements are met, by signing a "Caregiver’s Authorization Affidavit." The first requirement is that the minor must be living with the relative. Second, the relative must fit into one of the acceptable categories. The definition of "relative" in this regard is quite broad, ranging from brother and sister to half-brother, half-sister, stepbrother, stepsister, stepparent, aunt, uncle, niece, nephew, first cousin or any relative with the prefix of "grand" or "great." Authorized adults may also include the spouse of any of the above categorized individuals, even if the marriage has been terminated by divorce or death. Third, the adult relative accompanying the minor must have obtained the consent of the parents or be unable to contact them. Fourth, the adult relative must sign an affidavit affirming that the first three requirements have been met. Such an affidavit is valid for a period of one year. Once all the requirements have been met, the health care provider may rely on the affidavit in order to provide services. State law provides immunity from criminal or civil liability for health care providers who rely on the affidavit. Health care providers are not required to make any further inquiries as to the truth of the statements on the affidavit. This provides a good model for other states since it recognizes the sometimes bewildering variety of situations qualify as "family" in society today.
8. Minors with Legal Capacity to Consent: The legislature of California and other states have enacted statutes that permit minors to consent for their own medical treatment under certain situations. Some of these statutes have simply codified common law while others were passed with the public’s interest in mind to serve a greater societal need. Again, it is important to realize that the circumstances under which a minor may authorize his or her own medical care vary widely from state to state. These California statutes are merely examples of the kind of situations that may also be operative in other states. Note that in most of the following situations, the parents are not financially responsible for the care and treatment unless they also give consent. In other situations, patient confidentiality may restrict a health care provider from approaching a parent or guardian for payment.
a. Self-Sufficient Minors: A minor 15 years old or older who lives apart from his or her parents and manages his or her own financial affairs may give consent for medical care without parental or guardian permission.20 The California statute does not ask whether the minor is living apart from his or her parents with or without the consent of the parents. Nor does the law address the source of the income that is sustaining the minor. A minor in this situation should sign an affidavit affirming that the requirements for self-sufficiency have been met. The hospital may rely on this affidavit, absent any obvious reason to disbelieve it.
Contact with the minor’s parents regarding the visit without the minor’s consent should be made cautiously. Although allowed by law, confidentiality issues may arise.
b. Emancipated Minors: Emancipation, as opposed to self-sufficiency, is a court order given to minors 14 years and older upon petition to the court. 21 Emancipated minors should have papers proving their status. Emancipated minors have the same rights as self-sufficient minors regarding consent for health care.
c. Married Minors: Minors who are or have been married may consent to their own health care.22 Note that the minor need not be currently married in order for this provision to apply. Minors consenting under this provision should be asked to furnish a copy of the marriage certificate, time and situation permitting.
d. Minors on Active Duty with the Armed Forces: Any minor of any age on active duty with any branch of the United States armed forces may consent to his or her own health care. 23
e. Pregnant Minors: In California, any minor of any age or marital status may consent to her own care regarding treatment or prevention of pregnancy.24 However, there is wide variation from state to state on the issue of birth control for minors without parental consent. Reference to state law is essential. This provision, in California, does not apply to minors requesting sterilization or abortions. Variability from state to state on the sensitive issue of abortion is very broad. Fortunately, emergency physicians do not generally have to deal with either sterilization or abortion issues, but may be asked by a minor for a referral. Therefore, in order to correctly counsel patients, emergency physicians should be familiar with the laws in their state.
f. Minors with Reportable Diseases: A minor 12 years or older with any disease required to be reported to the local health officer, or a sexually transmitted disease, may give consent for his or her own health care.25 This provision, along with the above provision of care to pregnant minors, allows care without parental consent to virtually any minor female patient with complaints of non-traumatic abdominal pain. Until a history, physical, and diagnostic tests are performed, the emergency physician has no way of knowing whether the pain is related to pregnancy, a reportable disease, or a sexually transmitted ailment.
g. Minor Rape Victims: Minor patients over the age of 12 may consent to an examination and necessary treatment related to any condition as a result of an alleged rape.26 Parental consent is not required.
h. Minor Victims of Sexual Assault: Minors under the age of 12 who allegedly have been raped or any minor who alleges any of a number of other acts falling under the category of sexual assault (e.g., sodomy, oral copulation) may consent to their own care for diagnosis and treatment of conditions that may arise from the assault.27 In contradistinction to the alleged rape victims in (g) above, documented attempts to reach the parents must be made unless the health care provider reasonably believes the parent was the perpetrator.
i. Minors Seeking Mental Health Treatment: A minor 12 years or older may consent to receive either outpatient or residential shelter counseling services without parental consent if the minor is mature enough to participate in the program and if there is a danger of serious physical or mental harm to the minor or others if he or she is not permitted to participate.28 Emergency physicians frequently come into contact with mentally ill minors. This provision allows for extended care to be arranged even if the parents or guardian are not available. The mental health professionals are responsible for contacting the parents and involving them in treatment if deemed helpful.
j. Minors with Drug- or Alcohol-Related Problems: Minors 12 years and older may consent to their own medical care and counseling relating to the diagnosis and treatment of a drug- or alcohol-related problem.29 Emergency physicians all too often see minor patients with these conditions and may wonder what kind of programs are available for minors. In California, parents are not financially responsible for these treatments unless they participate in them. The minor may be referred to an outpatient program without the parents being notified. (The program itself, however, must notify the parents and offer the opportunity to participate or document why this would be inappropriate.) The treatment of acute intoxication without parental consent could fall under this section or the emergency consent doctrine.
h. Blood Donation: California allows minors aged 17 to donate blood with parental consent.30 A blood bank may accept written parental consent for minors aged 15-17.
If none of the multitude of exceptions applies to a particular minor in the ED, and a screening examination fails to reveal a condition fitting the EMTALA description of emergency, then the emergency physician and department have no authority to treat the minor without first getting consent from a parent or guardian. While it is unlikely that a parent would bring an assault or battery action against the physician or hospital, it is common that the parent will refuse to pay for the services rendered. Particularly in this era of managed care, a minor may not know that his or her non-emergent care is covered only at a particular ED or other location. The emergency physician and hospital may well be denied payment by the managed care organization, leaving the minor’s parents holding the bill. Unless the emergency physician wishes to pursue reimbursement under "quasi-contract" principles against the parents, the charges may likely have to be written off.
Consent for Special Procedures
It is traditional in emergency medicine, for both adults and children, that consent is obtained for the performance of special procedures. This consent takes on a distinctly different aspect when parents are asked to consent for these procedures on their children. Just what is and what is not covered by the blanket consent given at the admission desk is a subject of some controversy. It is generally felt that ordinary examinations and procedures that carry low risk of complications are covered by the blanket consent.
How risky must the procedure be before special consent is required? Few would argue against the proposition that the performance of surgery under general anesthesia falls under the "risky" category. Almost all would agree that radiological procedures utilizing the injection of intravenous contrast also fall under this category. On the other hand, simple venipuncture does not require special consent (regardless of the fact that in many children venipuncture is anything but simple). What about lumbar puncture, elective endotracheal intubation, or central line placement? The answer is not so clear.
Lumbar Puncture
Traditionally, special consent has been obtained for lumbar punctures (LP). Most emergency physicians would agree, however, that this procedure is relatively simple to perform and carries about as much risk as a venipuncture, which requires no special consent. The tradition of special consent for this procedure probably originates in the undeserved bad reputation it has among parents. The normal parental response to the mention of LP never fails to amaze most emergency physicians. Even a careful explanation of the need for the LP and a description of its performance often fails to allay parental fears. The most common concerns are lower limb paralysis and pain.
Often, the very presentation of a special consent form to be signed elevates the perceived danger by the parent. It is probably time to stop requiring special consent for LPs. To do so, though, is complicated by the fact that it is the "standard of care" in most communities to get one. The failure to obtain signed consent for an LP could be commented upon at the time of trial as a failure to meet the standard of care if a case involving the performance of an LP comes to litigation. A good first step to change the standard would be for emergency physicians to describe the consent discussion and parental agreement in the body of the chart but not require a special signed form. Unwillingness to allow the procedure should be accompanied by the ED’s usual refusal of procedure documentation.
Parental refusal to allow an LP leads to the next question; what to do with the child in whom the emergency physician either suspects meningitis or in whom an LP is part of the standard septic infant workup? In either case, the child should be started on broad-spectrum antibiotics and admitted. In suspected meningitis, treatment should start before the LP results are back anyway. Many a malpractice case has been lost on the issue of delay in treatment until lab results were in hand. The potentially septic infant, likewise, is often treated empirically. In either case, it is rare that the LP results alter antibiotic therapy, other than cessation of the antibiotic altogether. If the parent refuses the test, a full description of the discussion regarding the refusal should be documented on the chart as well as the department’s refusal of treatment form signed by the parent.
Endotracheal Intubation
Endotracheal intubation is a procedure that, although lifesaving, has known morbidity and mortality associated with it; in particular, damage of the teeth and other oral structures, damage of the vocal cords, aspiration, and inadvertent intubation of the esophagus, to name a few. No one expects the emergency physician to get consent for intubating a child under emer
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