Minors and Informed Consent

2016 Alliance sponsor feature article provided courtesy of ProAssurance Group

Note: This article, courtesy of ProAssurance, was authored by Jeremy Wale, JD, ProAssurance Risk Resource Advisor. ProAssurance Group provides healthcare malpractice insurance and is rated A+ (Superior) by A.M. Best.

A patient’s absolute right to make informed decisions regarding his or her medical care is the foundation of informed consent. The American Medical Association states, “Physicians should sensitively and respectfully disclose all relevant medical information to patients. The quantity and specificity of this information should be tailored to meet the preferences and needs of individual patients.”

Informed consent as a legal requirement began in earnest with a New York lawsuit back in the early 1900s. Justice Cardozo of the New York Court of Appeals stated, “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body…”1 This Appeals Court decision laid the framework for our modern-day informed consent laws and rules.

Over the years, case law relating to informed consent has evolved—with some states introducing statutes governing consent requirements for healthcare providers.

Informed consent laws differ by state in the amount of information a healthcare provider is required to disclose to the patient. Some states employ a “reasonable physician” standard, meaning a healthcare provider must provide the amount of information a reasonably prudent physician would provide in the same or similar circumstances.2 Other states use a “reasonable patient” standard, requiring that a physician provide information that a reasonable patient would need to make an informed decision.3

Generally speaking, physicians do well to provide patients with enough information to be able to make a fully informed decision about medical care. Exceptions to the informed consent requirement can be made for emergencies where the patient is unconscious and arrives at a facility needing a life-saving procedure. Be sure to check your state’s laws so you know what is required for your informed consent discussions with patients.

Minors present unique challenges to healthcare providers, particularly when consent issues arise. A parent may consent to treatment for his or her own child. There are certain instances where a minor may consent to his or her own treatment. These instances differ by state, but generally include treatment for drugs/alcohol abuse, sexually transmitted diseases, HIV/AIDS testing, and reproductive health. Be sure to check your state’s laws before allowing a minor to be treated without parental consent.

Practices routinely ask our Risk Resource Department what to do in situations of children with divorced parents. Typically, each parent maintains his or her right to consent to medical treatment for the child.

When you encounter a divorce decree granting full legal and/or physical custody to one parent, he or she has the sole right to make healthcare decisions for the child. If one parent has sole physical custody but legal custody is shared, then both parents maintain the right to make healthcare decisions for their child. These guidelines may not hold true in all situations. Please consult an attorney when you have questions regarding the ability of a divorced parent to consent to treatment for a child.

You also may encounter situations where a parent’s rights have been terminated by the court. Then the guardian of the child will have related documentation. It can be helpful to keep a copy of this documentation in the patient’s record so healthcare providers with access to the record know who is allowed to consent to treatment for the child.

Foster children present another challenge for many practices. Often, foster parent(s) will have documentation from the court giving them permission to make decisions on behalf of the child for routine healthcare.

Birth parents do maintain parental rights with most foster care situations. Usually the foster parent or guardian will have authority to consent to routine healthcare for a child, whether via court order or the birth parent(s) signing a document giving the foster parent this right.

Questions also arise as to whether the parent maintains a right to request the child’s medical record when the child is under the care of a foster parent. A birth parent’s right to review a foster child’s medical record is a tenuous situation best handled on a case-by-case basis.

If your practice treats foster children, consider contacting your state or local foster care agency to determine your legal obligations when treating these children. You also may wish to contact a local attorney to assist you in determining protocols to ensure that the proper person is consenting for a child’s treatment.

The Vaccination Challenge

When parents decide not to vaccinate their children, some practices have made the decision to refuse to provide healthcare to those pediatric patients. That said, how do you handle patients whose parents have decided to cease their children’s vaccinations? You have two options: continue to treat the patients or terminate them from the practice.

Termination from the practice is best handled delicately and by the physician. If you decide to terminate, consider having several conversations to determine if the parents are willing to reconsider before acting. If the parents hold their position, proceed to share your decision to end your care, explaining you will continue care until such time the parents are able to find another physician. This may require more than 30 days of care. Offer any assistance you have available to help these parents find another pediatrician.

If you decide to continue caring for patients whose parents refuse to allow vaccinations, document all conversations you have with the parents regarding risks related to the refusal. If you strongly advocate for vaccinations, you may want to counsel parents to consider vaccinating.

It may be helpful to obtain input from all healthcare providers and staff before implementing a practice-wide policy refusing to treat patients whose parents refuse vaccinations. It is important that all healthcare providers are on the same page and agree on such a policy.

Consent issues related to the treatment of minors can be complex. Call your healthcare liability insurer for assistance when you have questions.

1 Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129 (1914).
2 Thaw v. North Shore Univ. Hosp., 129 A.D.3d 937, 939 (2015).
3 Janusauskas v. Fichman, 264 Conn. 796, 810 (2003).

Copyright © 2016 ProAssurance Corporation. This article is not intended to provide legal advice, and no attempt is made to suggest more or less appropriate medical conduct.

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