Legal Implications if Adolescents Seek Confidential Care
By Stacey Kusterbeck
Scared adolescents often tell emergency providers something such as, “I don’t want my parents to know about this.” Perhaps the patient is concerned about pregnancy or a sexually transmitted infection.
“They may also be brought to an ED following an assault or experiencing the effects of illicit substance use, and may not want their parents to know,” says Douglas S. Diekema, MD, MPH, an attending physician and director of education for the Treuman Katz Center for Pediatric Bioethics at Seattle Children’s Hospital.
Generally, emergency clinicians are required to obtain parental consent for care provided to minors. However, there can be exceptions if the minor is seeking treatment for sexually transmitted infections, mental health, substance use disorders, sexual assault, or pregnancy.
“Several federal and state laws apply. Healthcare professionals are advised to be aware of the laws where they practice,” says Jonathan M. Fanaroff, MD, JD, a professor of pediatrics at Case Western Reserve University School of Medicine in Cleveland.
The EP’s legal obligation or duty in these cases varies. In some states, confidentiality is tied to specific services that an adolescent can access without parental consent. “In others, it may be a separate regulation. Not all states legally protect patient confidentiality,” Diekema notes.
Adolescents might refuse to complete the ED evaluation if they cannot be assured of complete confidentiality. “Emergency providers should always be open with adolescents about the limits of any promise of confidentiality,” Diekema says.
For example, emergency providers are legally obligated to report concerns about abuse or neglect. If a hospital bill or health plan explanation of benefits will be sent to a parent, or a parent can access hospital records or laboratory results through the patient portal, the adolescent should be made aware of those possibilities. Additionally, many EDs have created policies on adolescent confidentiality. “These policies are apart from any legal duty,” Diekema says.
If a bad outcome happens and the family sues, providers could be held liable. Parents might allege they were not informed about something relevant to the bad outcome (e.g., a psychiatric complaint or substance use disorder disclosed during the visit).
“The ED provider might be held liable if the parents successfully argue that disclosure was necessary to decrease a threat to the safety of the adolescent — for example, if they were suicidal,” Fanaroff says.
Even if nobody sues, parents might complain that the ED clinicians should have provided them information about their adolescent children receiving care, or should have asked for parental consent. However, 57% of 102 parents surveyed were accepting of pediatric ED providers offering contraception to their children confidentially. If patients do complain about a lack of consultation, the best approach is for EPs to explain legal requirements. (Read more on this topic here.) “In jurisdictions that protect adolescent confidentiality legally, the ED response can be to inform parents of these laws,” Diekema says.
The chart should show benefits, risks, and alternatives were discussed with the adolescent. “Additionally, to provide consent, the adolescent patient must have decision-making capacity, which should be documented,” Fanaroff says.
Generally, emergency clinicians are required to obtain parental consent for care provided to minors. However, there can be exceptions if the minor is seeking treatment for sexually transmitted infections, mental health, substance use disorders, sexual assault, or pregnancy. Several federal and state laws apply. Healthcare professionals are advised to be aware of the laws where they practice.
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