What if parents request tests, but child refuses?
A 15-year-old girl's mother demands that you give her daughter a pregnancy test, but the child refuses. What do you do?
"A very real dilemma arises when parents insist that some evaluation or procedure be performed when it is not desired by the minor," says Matthew Rice, MD, JD, FACEP, an ED physician with Northwest Emergency Physicians of TEAMHealth in Federal Way, WA. "There is no easy answer as to what is right. The details of every circumstance must be carefully analyzed."
Ethically and legally, it is well-established that a physician should not do anything that will harm a patient. "The patient, no matter what their age, is entitled to certain rights, including to prevent known harm," says Rice. "Thus, there is no mandate for a physician to provide evaluations or treatment that could physically or psychologically cause more harm than good."
However, minors may be unaware of the risks of not undergoing evaluation or treatment, notes Rice. He recommends having an open and frank discussion with the patient, the parents, and other appropriate professionals to resolve the situation without involving the legal system.
"Any time a simple medical request escalates to a legal issue with others involved, it can be damaging in itself to a minor," says Rice. "Thus, the experienced emergency medical provider is wise to ponder all options that are viable and best for a patient before invoking complex responses."
Consider the following to reduce legal risks:
Know state laws on confidentiality. California law is very clear that a minor's medical records are confidential for all encounters regarding reproductive health and drug and alcohol treatment. The law also stipulates when a physician's knowledge of sexual activity of a minor must be reported to authorities usually in cases involving age disparity of the patient and their sexual partner.
"Other states' statutes may not be so clear," says Jonathan D. Lawrence, MD, JD, FACEP, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA. "To that extent, the directives of the current administration in Washington has made the situation more difficult."
Under the Clinton administration, a minor's medical records in areas of reproductive health and substance abuse were confidential nationwide, based on evidence that confidentiality leads to minors seeking care and treatment for problems in these areas. "The Bush administration changed all that, declaring that parents have full access to their minor children's medical records unless a state law explicitly states otherwise," he says. "Therefore, ED physicians must know their own state's laws before promising confidentiality to minors."
The basic rule to follow is that your patient is the child, not the parent. "Obviously it is a somewhat sticky situation, because if you as the doctor tell the parents, 'Sorry, I can't tell you that,' a lot of parents will assume that their son or daughter has engaged in something they disapprove of," says Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods.
McMenamin recommends attempting to get the child to voluntarily disclose the nature of the problem, diagnosis, and treatment. The child may well take that advice, and if he does, then from a legal standpoint you are off the hook, because you now have the patient's consent.
"But none of that obligates the child to listen to you and if that is the case, you are bound by that in most states," says McMenamin. "Make your argument as well as you can but if at the end of the day, the kid still says 'No, keep your mouth shut,' then that is what you have to do."
Recently, Lawrence cared for a 13-year-old girl who had run away from home, whose mother brought her to St. Mary's ED for a virginity test and drug test. The daughter allowed the drug test to be done, but refused the virginity test.
"My experience ended with a confidential conversation, during which she still refused to discuss her sexual history," says Lawrence. "I still made it a 'teaching moment' by touching on important topics to remember 'when you do become sexually active.'"
In this situation, have a chaperone present and ask the girl if she wants to tell you anything in confidence. "Say 'You're my patient, not your mother. Anything you tell me will not be repeated to her,'" says Lawrence. "If she says she's had sex, it's the perfect time for a discussion about STDs. If in fact she wants the morning after pill or prophylaxis for STDs, then you can offer it."
Consider requirements of EMTALA. EMTALA requirements for a medical screening examination to determine whether an emergency medical condition exists also come into play, says Lawrence. "Even though finding out whether your patient is a virgin is not usually an emergency medical condition, it could be considered as a medical emergency," he says. "If you could prevent a pregnancy in a 15-year-old with one simple pill, or if you could give an injection to prevent a STD that could possibly cause infertility, that sounds like many people might consider that an emergency."
However, evaluation and treatment of a STD that has already been identified is rarely an emergency, adds Rice. "EMTALA requires a medical screening exam and a stabilization of the medical emergency. EMTALA does not mandate that an evaluation or treatment in a stable patient must be done when alternatives are better medical care," he notes.
Don't force tests on the child. When determining whether to perform an exam or treatment against a minor's wishes, balance the risk and benefit. "A virginity exam has little to no merit to a minor," says Rice. "This, of course, is much different than an evaluation for sexual assault, which brings into purview a very different approach."
Drug testing is a more "black and white" scenario, since the need for this is based solely on the patient's clinical presentation. If the child doesn't appear intoxicated, there is simply no reason to get a drug or blood alcohol level test, says Lawrence.
Unlike preventing pregnancy or an STD, the need to know this information cannot be construed as a medical emergency because all you are looking for is evidence of past drug use, says Lawrence. "If the minor has a normal medical exam, there is no reason to do it," he says.
"If the kid is intoxicated, they can't say no to a test, but otherwise, I see no reason whatsoever to justify getting a drug test if [the] kid refuses."
Lawsuits from parents not likely
If you fail to perform STD or pregnancy tests because the child refuses, would the parents have grounds for a lawsuit against you? Not likely, since there is no evidence that you violated the standard of care or did anything to contribute to an adverse outcome, according to Lawrence.
"They would not be able to show that anything you had done would have made a difference, other than giving their child the morning after pill or treating a preventable STD despite her saying she never had sex. Is it the standard of care to not believe a patient?" he asks.
Tell the parents 'I want to help you, but my understanding of the law is that I need your child's consent to do this, and if he withholds it, I am not at liberty to do what you want,'" says McMenamin. "This might get them pretty upset, but it's better to stay within the law."
Medically, there likely isn't any great rush to find out a teenager's blood alcohol level. "It's not critically important to know that information right this second so by declining on the basis that the patient refuses, you haven't done anything terrible," McMenamin says. "If something happens to justify doing it or there is some legal compulsion to proceed, you probably haven't lost much."
On the other hand, there are significant liability risks if you perform tests even though the minor refuses. Examining or treating against a minor's will could lead to mental and psychological damage, with a claim being filed by parents who suddenly have a change of mind.
"Such litigation could consist of negligence, or assault and battery," says Rice, adding that the statute of limitations could allow a minor to litigate many years later.
Forcing a child to undergo these tests would technically constitute unconsented touching and battery, says McMenamin.
"If you decide that it's more important to help mom and dad out and subject the child to some sort of testing or examine him against his wishes, he may have a cause of action against you that might well prevail," he says. "I can imagine a skilled lawyer portraying this as a massive invasion of civil liberties. The best approach is to honor the child's wishes."
Sources
For more information, contact:
- Jonathan D. Lawrence, MD, JD, FACEP, Emergency Department, St. Mary Medical Center, 1050 Linden Ave., Long Beach, CA 90813. Phone: (562) 491-9090. E-mail: [email protected]
- Joseph P. McMenamin, MD, JD, FCLM, Partner, McGuireWoods, One James Center, 901 East Cary St., Richmond, VA 23219-4030. Phone: (804) 775-1015. Fax: (804) 698-2116. E-mail: [email protected]
- Matthew Rice, MD, JD, FACEP, Northwest Emergency Physicians of TEAMHealth, 505 S. 336th St., Suite 600, Federal Way, WA 98003. Phone: (253) 838-6180, ext. 2118. Fax: (253) 838-6418. E-mail: [email protected]
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