Consent for Minors
By David L. Freedman, MD, JD, FAAEM, Emergency Medicine Physician, Chelsea Community Hospital, Chelsea, MI; Practicing Attorney, Miller, Canfield, Paddock & Stone PLC, Ann Arbor, MI; Jonathan Lawrence, MD, JD, FACEP, Emergency Physician, St. Mary Medical Center Medical-Legal Consultant, Long Beach, CA.
Editor’s Note: This article was originally written by Jonathan D. Lawrence, MD, JD, FACEP and published in January, 1997. Because of the importance of this topic, we have decided to revise and update Dr. Lawrence’s article and revisit this topic. The question of consent continues to be complicated by the attempts of many managed care organizations to give or withhold "authorization for treatment" for minors enrolled in the plans who present to the emergency department (ED). In reality, only the patient or the patient’s appropriate legal representative may authorize medical examination and treatment; managed care organizations may only authorize reimbursement for treatment. With respect to children, this means that a parent or guardian is responsible for giving consent to allow medical personnel to provide medical treatment to a minor. This raises a wide variety of issues that do not arise when the patient is an adult and capable of consenting for himself or herself. For example, what if the person who is legally authorized to consent for the minor 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 for treatment in a life-threatening situation? Are there situations where society as a whole would benefit by allowing certain minors to give consent for their own treatment? If so, what are those situations? How does the Emergency Medical Treatment and Active Labor Act (EMTALA) affect these questions of consent?
This article answers these questions and more by taking examples, primarily from Michigan and California law, to illustrate the fundamental rule of consent for minors and the various exceptions to the rule. The basic rule, its exceptions, basic procedures, and advice for difficult situations are provided. With this information, the emergency physician will have a basic understanding of consent for minor issues and be more confident when addressing these stressful, consent-related situations.
The editors thank Dr. Lawrence for his excellent contributions to the original text of this article and, in particular for providing the citations to California state law.
Since consent for minors is primarily a subject of state law, while the examples presented in this article generally reflect the majority view, consultation with local counsel is essential prior to implementing policies regarding consent for minors.
The Basic Principles of Informed Consent
Patient consent is a key legal and ethical principle in American medicine. Our society’s view of consent for medical diagnosis and treatment is based on the broad notion of the inviolability of the individual. Courts recognized this principle as applying to medical treatment as early as 1914 when the famous legal scholar, Benjamin J. Cardozo, then a justice of New York’s highest court, wrote that: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body . . . "1 In general terms, this means that, absent consent, every person has the right to be free from intentional offensive contact by another. Failure to obtain consent prior to intentionally touching another person subjects the touching person to potential liability for battery. Since the general acceptance of the doctrine of informed consent was adopted, actions specifically brought for the intentional tort of battery in the medical setting are rare. If a physician has failed to obtain proper informed consent from a patient (a parent or guardian in the case of a minor), the action will generally be for malpractice, and the plaintiff will be required to prove that the physician breached the standard of medical practice in not obtaining the patient’s informed consent, as well as all the other elements of a negligence action.
In order to give informed consent, an individual must be "competent." Competency in this context may be defined as the ability to comprehend and rationally act upon information provided by a health care professional. Adults are presumed to be competent to make medical decisions. While there are many minors who seemingly are fully capable of rationally evaluating medical care decisions, minors are, by law, below the "age of consent." Therefore, the general rule is that minors are not capable of giving consent for medical treatment. As a result, the consent of a minor for medical treatment is ineffective, and the physician must secure the consent of the minor’s parent or other person standing in loco parentis prior to treating the minor. There are, of course, a number of exceptions to this general rule and minors may legally give consent in specific circumstances. For example, minors may become "emancipated" and, thereby, are capable of giving consent; a small number of states have statutes allowing "mature minors" to consent to medical treatment,2 and all states have legislation that allows minors to consent to the treatment of specific medical conditions (e.g., sexually transmitted diseases).
The age at which a minor reaches majority and can, therefore, give consent, varies from state to state. In the vast majority of states, the age at which an individual may give consent for medical treatment is 18. A child is deemed below this age as a matter of law, incompetent to give consent for medical treatment.
The law generally assumes that a competent individual will act on the minor’s behalf. Most of the time, this will be the child’s parent. Sometimes a guardian is assigned by the court to protect the minor’s interests. The individual who may serve as guardian varies from state to state and may include the state itself.
The considerable variety of situations in which children live creates a potential minefield for physicians concerning consent issues. Most of these issues find their answers in state law and, therefore, the answer will vary depending upon the state in which the physician practices.The answer may not always be obvious, and the emergency physician may find him or herself in a difficult situation where immediate consultation with hospital counsel will be necessary. The following discussions primarily refer to Michigan and California law when specific examples are given, and the reader is cautioned that this may not always reflect the law in the reader’s state. A detailed comparison of the law in all states is well beyond the scope of this article. The practicing emergency physician should have a general familiarity with the law in his or her state and should have in place an effective mechanism to contact hospital counsel when legal questions arise, including an emergency situation.
EMTALA
Before proceeding, a brief discussion of the Emergency Medical Treatment and Active Labor Act (EMTALA) relating to consent for minors is in order. Most emergency physicians are at least generally familiar with the provisions of EMTALA. Among other things, EMTALA requires a hospital with an ED to provide an appropriate medical screening examination to any "individual" who comes to the ED for examination or treatment of a medical condition in order to determine whether the individual has an emergency medical condition. 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, an appropriate medical 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 for minors may proceed. If an emergency condition is found, and the minor’s parent or guardian cannot be located, then the minor should be stabilized consistent with the appropriate standard of care. In such cases, consent will be implied by law, and the emergency physician should proceed with such treatment that a reasonable parent or guardian would consent to under the circumstances. This "emergency exception" to the general rule that parental consent is required is well settled in the law, although courts in the various states differ as to how serious the condition must be to qualify for this "emergency exception." Naturally, attempts to contact the family or guardian, as applicable, should continue as is practicable during the stabilizing treatment. As you read the rules of consent in the following sections, remember that lack of perfect express informed consent because a parent or guardian is not available should never delay necessary emergency treatment of a minor.
General Consent Issues for Minors
Minors accompanied by parents
Minors presenting to the ED accompanied by parents present the least complicated informed consent situation. The general rule is that a minor’s parents have the legal capacity to consent to the treatment of their minor child, and at least one parent’s consent must be obtained. Since a high percentage of children in the United States live with unmarried and divorced parents, considerable variations can and do occur. For children whose parents are divorced, the ability of the parents to give consent for the child may depend on the custody arrangement ordered at the time of the divorce. If one of the parents has sole legal custody, only that parent will have the full legal right to consent for the child. If the divorced parents have joint legal custody (including the right to consent to medical treatment), then either will have the right to consent for the child, unless the court decree requires the consent of both. If a conflict arises between the divorced parents in the latter case, a court order might be required to resolve the dispute. In the case of an emergency where delay might be detrimental to the child, treatment will needs to proceed prior to final resolution of this conflict. Careful documentation, while always a good practice, is particularly advised in such situations.
A minor parent may, in some states, give consent for treatment for his or her child.5 In some states, this leads to the anomalous situation where a minor may give consent for his or her child but not generally for himself or herself.
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 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, however, is that a guardian has the same authority as a parent for nonsurgical treatment of a minor.
Many states also place additional restrictions on the guardian’s ability to authorize a number of other treatments. The only restriction of particular concern to emergency physicians is the additional requirement often placed on the guardian regarding the placement of the child in a mental health facility. Since all of these rules are state specific, consultation with an attorney knowledgeable in local law is necessary.
A Potpourri of situations
Minor students. State law may provide 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 parent or guardian when the parent or guardian cannot be reached. For example, California law provides that during regular school hours, "unless a parent or guardian has previously filed with the school district a written objection to any medical treatment other than first aid, no liability may be imposed on school officials or health care providers for reasonable treatment of a child when the parent or guardian cannot be reached to give consent."6
Wards or dependents of juvenile court. The court in these cases may give consent for treatment as though the court were the minor’s guardian. In cases where the petition to make the minor a ward or dependent of the court has not yet been finalized, the parents or guardian may 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.7
Minors in custody of the police. Emergency physicians commonly find themselves asked by law enforcement officers to examine and treat a minor being held on suspicion of committing a crime. Often, the minor is injured or suspected to be under the influence of an intoxicating substance. In these situations, the police do not, in general, have the authority to consent for the minor’s examination and treatment. Physicians should provide an appropriate medical screening examination as required by EMTALA and, if an emergency condition exists, proceed to stabilize the patient as is required by EMTALA and allowed by the "emergency exception" to the parental consent rule. If no emergency condition is found, the emergency physician must generally wait for consent from the minor’s parent or guardian, absent a court order, before providing further care. This would include requests by the police for blood tests in the absence of an emergent medical condition requiring such a test. If the parent or guardian cannot be located, then the minor may give consent for certain medical treatment. (See section on emancipated minors on pg. 24.)
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.8 In California, however, non-emergency surgery would require consent from the legal guardian 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 about carrying the necessary papers authorizing consent for the minors in their charge. If any questions arise, hospital counsel should be consulted.
Suspected child abuse victims. All states have child abuse and neglect statutes. Therefore, when child abuse and/or neglect is reasonably suspected and parental consent for examination and treatment is refused, appropriate steps should be initiated to protect the child. This will most often involve the hospital social services department, children’s protective services and, when necessary, hospital counsel and the local police. EDs should have policies in place to deal with these situations.
Parents Unavailable. Children often show up at EDs accompanied by baby-sitters. Other similar situations include children injured while at day or summer camp. Most states allow the hospital to rely on a written consent form, previously executed by the parent, similar to a power of attorney, authorizing an appropriate person to make necessary health care decisions on the minor’s behalf in the parents’ absence. Most legitimate organizations that take care of children have these written consents on file in case of emergencies. Review by hospital counsel of what information must be contained on such forms is advised.
Parents may send their minor children to the hospital with a written note giving consent for treatment. These may be honored unless ED staff question their legitimacy. Of course, if the treatment indicated is at all out of the ordinary, or there is any reason to believe it would be outside the scope of the consent in the note, the parent should be contacted. Always remember that informed consent is a discussion, not a one-way communication, whether it be from the physician to the patient or vice versa. A copy of the note or form should always be kept as part of the permanent medical record.
A common situation arises when casual baby-sitters bring children who have become ill while under their care into the ED. The parents of these children often fail to provide appropriate authorization of treatment for the child and fail to appreciate the potential legal predicament facing their child and the hospital if medical treatment is required and they cannot be reached. Again, the "emergency exception," EMTALA, and common sense take precedence over mere formality. Simultaneous with the provision of appropriate emergency treatment to stabilize the child, steps should be taken to contact the parent or legal guardian.
In response to the recognition that a great many children live in "non-traditional households," California has enacted a statute permitting caregiver authorization.9 This statute 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 listed 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 to provide services. State law provides immunity from criminal or civil liability for health care providers who rely on such an affidavit. Health care providers are not required to make any further inquiries as to the truth of the statements contained in the affidavit.
Minors with Legal Capacity to Consent
All states have enacted statutes that permit minors to give consent for medical treatment in certain situations (e.g., pregnancy, sexually transmitted diseases, substance abuse, etc.). It is important to remember that the circumstances under which a minor may authorize his or her own medical treatment vary widely from state to state.
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, in some states, give consent for medical treatment without parental or guardian permission.10 The California statute does not draw a distinction between 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 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.
Emancipated minors. In Michigan, for example, minors are emancipated and, therefore, may consent to medical treatment in the following situations:
1. When a minor is validly married;
2. When an individual reaches the age of 18 years;
3. During the period when the minor is on active duty with the armed forces of the United States;
4. For the purposes of consenting to routine, nonsurgical medical care or emergency medical treatment to a minor, when the minor is in the custody of a law enforcement agency and the minor’s parent or guardian cannot be promptly located; and
5. For the purposes of consenting to his or her own preventive health care, except vasectomies or any procedure related to reproduction, during the period when the minor is a prisoner under the jurisdiction of the department of corrections or the period when the minor is a probationer residing in a special alternative incarceration unit, if the parent or guardian of the minor cannot promptly be located by the department of corrections.11
Consultation with hospital counsel is advised to review the law regarding emancipation of minors in your state.
Married minors. Minors who are or have been validly married may be authorized to consent to their own health care.12 Note that, in California, the minor need not be currently married to be emancipated. Minors consenting under this provision might be asked to furnish a copy of their marriage certificate, if time and situation permit.
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 generally consent to his or her own health care.13
Pregnant minors. In Michigan, for example, a minor may consent to the provision of prenatal and pregnancy related health care.14 Before providing health care to the minor, however, the minor must be informed that the putative father of the child or the minor’s spouse, parent, or guardian may be notified for medical reasons by the treating physician. In addition, at the initial visit to the health facility or health professional, permission must be requested of the minor to contact the minor’s parents for any additional medical information which may be necessary or helpful to provide proper health care.
Minors with reportable diseases. In California, for example, a minor 12 years of age 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.15
Rape victims older than the age of 12. In California, for example, minor patients older than the age of 12 years may consent to an examination and necessary treatment related to any condition as a result of an alleged rape.16 Parental consent is not required.
Victims of sexual assault younger than the age of 12. Minors younger than 12 years of age who allegedly have been raped or any minor who alleges any of a number of other acts falling under the category of sexual assault may consent for their own care for diagnosis and treatment of conditions that might arise from the assault.17 In contrast to the California statute cited above, documented attempts to reach the parents must be made unless the health care provider reasonably believes the parent was the perpetrator.
Minors seeking mental health treatment. In Michigan, for example, a minor 14 years of age or older may request and receive mental health services, and a mental health professional may provide mental health services on an outpatient basis, excluding pregnancy termination referral services and the use of psychotropic drugs, without the consent or knowledge of the minor’s parent or guardian.18
Minors with substance abuse problems. In Michigan, a minor who is or professes to be a substance abuser may consent to substance abuse-related medical or surgical care, treatment, or services by a hospital, clinic, or health professional. It is not necessary that the parent or guardian be contacted for consent in this situation.19
Child of a minor. Also in Michigan, a minor may consent to the provision of health care to a child of the minor.20 If the natural parents of the child were not married prior to or subsequent to the child’s birth, unless the father has legally adopted the child, only the mother is considered a "parent" of the child.
If none of the exceptions (the list above is illustrative, not exhaustive) applies to a particular minor in the ED and an appropriate medical screening examination fails to reveal an emergency, such that the "emergency exception" to the parental consent rule would apply, the emergency physician and ED would have no authority to treat the minor without first obtaining consent from a parent or guardian. While it is unlikely that a parent could successfully bring a battery action against the physician or hospital (assuming the treatment provided by the physician was not elective), it is not uncommon that the parent might 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 responsible for the bill. Of course, concerns regarding reimbursement should be secondary to ensuring that appropriate care is provided to the minor.
Consent for Special Procedures
It has been the tradition in emergency medicine, in the case of both adults and children, to obtain specific consent for the performance of certain special procedures. This consent may create particular problems when parents are asked to consent to 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. While it is generally felt that ordinary examinations and procedures that carry a low risk of complications are covered by the blanket consent, procedures that carry higher levels of risk require specific consent. It is important for physicians always to remember that informed consent is an ongoing discussion with the patient (in the case of minors, the parent or guardian), not a signature on a form. The purpose of the form is merely to memorialize the informed consent discussion that took place and to provide evidence that the discussion in fact took place and that specific risks and benefits were discussed.
How risky must the procedure be before special consent is required? Few would argue with the proposition that the performance of surgery under general anesthesia falls under the "risky" category. Most would also agree that radiological procedures using the injection of intravenous contrast also fall under this category. On the other hand, simple venipuncture, for example, does not require special consent (regardless of the fact that, in many children, venipuncture is anything but simple). What about a procedure such as lumbar puncture? The answer is not so clear.
Lumbar puncture
Traditionally, special consent has been obtained for lumbar puncture (LP). Most emergency physicians would agree, however, that this procedure is relatively simple to perform and carries very little significant risk; therefore, should not require a special consent. The tradition of special consent for this procedure probably originates in its undeserved bad reputation among many parents. The not uncommon terrified parental reaction when a physician recommends an LP never fails to amaze emergency physicians. Even a careful explanation of the need for the LP and a description of the procedure often fails to allay parental fears. The most common concern, of course, is paralysis. How many parents know of someone who heard that someone’s cousin was left permanently in a wheelchair as a result of an LP?
Often, the very presentation of a special consent form to be signed increases the level of apprehension of the parents. When obtaining informed consent, it is, of course, essential to discuss with the parents the indications for the procedure, the risks of performing the procedure, the risks of refusing the procedure, and the perceived benefits of performing the procedure. Remember that it is this discussion that constitutes the informed consent, not a signature on a special consent form. In some hospitals it has been the practice for many years to obtain a special consent for LP and, because of the longstanding tradition, it is sometimes difficult to change the policy.
Parental refusal to allow an LP leads to the next question: What does the emergency physician do with the child in whom the 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 appropriate broad-spectrum antibiotics and admitted. If the suspicion of meningitis is at all significant, treatment should be initiated before the LP results are back in any case. Many a malpractice case has been lost on the issue of delay in treatment until the laboratory analysis of the spinal fluid was in hand. The potentially septic infant, likewise, is often treated empirically. In either case, it is rare that the LP results will alter antibiotic selection, other than discontinuing antibiotics altogether. If the parent refuses the LP, a full description of the discussion regarding the refusal should be documented on the chart as well as on the department’s refusal of treatment form signed by the parent. If the emergency physician believes that the LP is essential, the physician should contact children’s protective services and hospital counsel as necessary.
Parental refusal of treatment
Parental refusal to allow specific or all medical treatment for a minor child presents one of the most frustrating and potentially dangerous aspects of emergency medicine. A competent adult has the right to refuse medical treatment, even when the physician believes that any "reasonable" patient would consent to the treatment. The situation, however, is different when a parent refuses "reasonable" treatment for a minor child. Our society is quite tolerant of the autonomy of parental decision-making in child-rearing, but draws the line at decisions that carry the potential of physical harm to the child. Parental refusal of care may be based on ignorance, distrust, financial, or religious grounds. Intentional abuse or neglect also often results in refusal of care, but in these instances, the parent is usually not present in the ED.
| Risk Management Do’s and Don’ts |
Do:
1. Be aware of local state laws and regulations regarding consent for and by minors. |
Don’t:
1. Delay a medical screening examination of a minor while awaiting parental or guardian consent._________________________________________________________________________________________ |
The first and primary weapon to address parental ignorance with respect to parental consent is communication and education of the parents by the physician. The emergency physician should, to the best of his or her ability, try a crash course in educating the parents regarding the disease process potentially afflicting their child. If, in the physician’s judgment, a significant potential for morbidity or mortality is associated with the particular disease process potentially present in the child, and parental consent for appropriate treatment is not forthcoming, the emergency physician must take immediate steps to ensure the safety of the child. In such a case, the physician should enlist all available resources, including the family’s personal physician, social workers, child protective services, hospital counsel. No parent should be allowed to take his or her child from the hospital under such circumstances, even if intervention by the police is required. All states have, by statute, procedures for the authorization of medical care in appropriate cases, despite the objection of the parents or guardian.21 Every ED should have a well-thought-out policy for dealing with such difficult situations.
Case #1. A 7-year-old boy was taken to the ED with complaints of abdominal pain and diarrhea for four days. The emergency physician found on examination that the child had right lower quadrant tenderness with rebound and mild guarding. The child was mildly febrile, but otherwise his vital signs were normal. He was taking fluids by mouth without vomiting. A CBC was performed that showed a white blood cell count of 11,500. Concerned about possible appendicitis, the emergency physician requested a surgical consultation. The surgeon agreed that appendicitis was a distinct possibility and recommended laparotomy, but the parents refused. The parents were allowed to leave with the child against the advice of the physicians. The child returned two days later with obvious peritonitis and a laparotomy revealed a ruptured appendix. The patient eventually recovered after a stormy post-operative course, but continued to complain of chronic diarrhea and abdominal pain.
A malpractice suit was subsequently brought on behalf of the child claiming that the physicians were negligent in allowing the parents to leave with the child in the face of a clinical presentation suggesting appendicitis. The father, in his deposition, stated that he refused surgery because: "I had never heard of appendicitis in a 7-year-old." He had demanded to leave in order to get a second opinion from "a physician friend of the family." The surgeon stated in his deposition that he permitted the child to leave with the parents against medical advice (AMA) because, although the symptoms were consistent with appendicitis, the time course of the disease was atypical, the white blood count was normal (or near normal), and the child did not seem particularly ill. Therefore, while he would have preferred to perform a laparotomy for suspected appendicitis, he felt that the child could have had gastroenteritis and allowing the parents to leave AMA with the child was reasonable. The physicians eventually received a no cause verdict after trial.
Commentary. Although the physicians eventually prevailed in this litigation, they were subjected to the emotional and financial trauma of a lawsuit and might have saved themselves the trouble had they taken more time to educate the parents regarding the risk of appendicitis in their child. Spending a little extra time talking to and educating parents often can prevent a subsequent lawsuit. The dilemma faced by the surgeon and the emergency physician in this case is typical of the sort of judgment calls required when parents refuse recommended treatment. This was not a case where it would have been appropriate to involve children’s protective services or the courts; however, other interventions might have been appropriate (e.g., social services). In this case, the physicians made a judgment call. They made their recommendations to the family, documented the father’s refusal and the discussion of the possible consequences of his refusal, yet left the door open for them to return. While the physicians eventually prevailed in this case, it is never good to allow yourself to be placed at the mercy of a jury.
Distrust can evolve from many sources, some from within the ED, others from without. Some common external sources of distrust include a personal distrust of health care providers in general and physicians in particular, racial or cultural animus, fear (grounded or not) of being exposed to law enforcement or immigration authorities, and pre-existing parental psychiatric disorders. The encounter with emergency personnel may also engender distrust. This may arise from a lack of effective communication skills on the part of either the parents, the emergency department personnel, or both. Distrust often arises when parents observe what they interpret as incompetence, such as watching multiple unsuccessful attempts at starting an IV. Excess waiting time and perceived rudeness often also give rise to these same feelings. Distrust coupled with ignorance is a particularly difficult combination.
Common reasons for refusal of a particular procedure (e.g., LP) can include familial lore that some distant relative was paralyzed from the procedure or that another hospital killed a relative. Irrational fears and an inability to make sensible decisions result from these family myths. In attempting to get consent for a procedure such as an LP, most physicians have faced the situation where the parents refuse because they don’t want their child to suffer any more pain, despite repeated attempts to caution the parents of the consequences of untreated meningitis.
Some parents also distrust their own decisions. This may occur, for example, in certain groups of immigrant women who are often fearful of making any important decisions without the advice and agreement of their husbands, who may not be available at the time consent is needed and traditionally may not allow their wives to make any important decisions.
The first step in dealing with these situations is patience. Emergency physicians should always try to defuse any tensions that may already have arisen between the staff and the parents. Social workers and other ancillary personnel may prove extremely useful in this regard. Seek out relatives and friends of the parents who may be more amenable to reason and may help either defuse the situation and/or help convince the parents of a reasonable course of treatment. If all else fails, and delay for purposes of obtaining consent may harm the child, contact children’s protective services and, when necessary, hospital counsel.
Case #2. A 14-month-old girl was brought to the ED by her parents because of a two-day history of fever, cough, and lethargy. She was seen promptly by the nursing staff and emergency physician. The physician determined that the child appeared dehydrated and septic and so required a septic work-up. A CBC, blood cultures, chemistry profile, urinalysis, and chest x-ray were ordered, and an LP was anticipated. The nurses had some trouble drawing the child’s blood and starting an IV because of difficulty finding a vein. They were successful after several attempts, but the parents became increasingly distraught at observing their child crying and the nurses’ inability to start the IV. By the time the physician approached the parents to explain the LP, the parents were in the process of dressing the child. They requested that the IV be discontinued and stated that they wanted to leave "to go to another hospital." The physician could not convince them to stay. The policy of that ED regarding AMAs was that no follow-up instructions or referrals were to be given. The parents left after signing the AMA form. The baby unfortunately died of meningococcal meningitis 12 hours later, having not been brought to another hospital. The subsequent malpractice lawsuit brought against the physicians was settled for $200,000 prior to trial.
Commentary. This case is a perfect example of what may result when distrust develops and is not effectively addressed. The parents, already upset about having a sick child, became distrustful at what they perceived as ineptitude on the part of the nursing staff. In this case, the emergency physician, hospital, and nursing staff made several errors. First, the situation with the nurses and the multiple attempts at venipuncture apparently was allowed to get out of control. When the parents started to become distraught, several actions should have been taken. The parents could have been escorted from the room by a social worker or another nurse and the procedures more fully explained. The nurses also could have called the physician to attempt intravenous access when the nurses failed. When the parents expressed their intention to leave, it was the physician’s responsibility, in the face of a child who was most likely toxic in appearance, to either convince the parents to allow treatment of the child to continue or, if this failed, to enlist whatever resources necessary to protect the child. If the emergency physician truly believed the child was seriously ill and required immediate treatment and was unable to enlist the parents’ cooperation, he or she had an obligation to inform the parents that appropriate legal measures would be taken under the child protection laws of the state. Finally, the department’s AMA policy, which provided that no follow-up instructions or referral would be given when patients left AMA, was simply wrong. When a patient is allowed to leave AMA, there should always be an open-ended invitation to return to the ED and attempts to otherwise arrange care.
Occasionally, parents may refuse hospitalization or treatment of their child because they cannot afford it. Although this seems to fly in the face of reason when the health of a child is at stake, it must be taken at face value. Every hospital should have policies in place that can assist needy parents (e.g., payments over time, a charity fund, etc.). The hospital, of course, has an obligation under EMTALA to provide stabilizing care regardless of the patient’s (or parent’s) ability to pay. Again, never allow a toxic appearing child to be taken by a parent from the ED prior to appropriate treatment.
Refusal based on religious beliefs
Parental consent issues may assume constitutional proportions where religious beliefs are concerned. The First Amendment prohibition on laws respecting an establishment of religion or prohibiting the free practice thereof has come face-to-face throughout our country’s history with religious practices that may be at odds with the medical opinions of treating physicians. Prominent among these practices are reliance upon faith healing and the refusal of blood product transfusions. The general rule is that competent adult patients have the right to refuse any treatment on any grounds, including religious ones. The courts, however, have made it quite clear that the same principle does not apply to parents’ decisions regarding the medical treatment of their minor children.22 While allowing adults great latitude with regard to their religious beliefs, the courts will generally not permit a minor’s health to suffer as a result of denial of care because of parental religious beliefs. Note, however, that the risk to the minor of forgoing the recommended medical treatment must be substantial and not simply speculative.
A child treated by faith healing is often not seen in the ED until the child is moribund, since such parents may shun traditional medicine. Children in such a condition must be aggressively treated despite the wishes of the parents. Historically, both these children and children whose parents refuse blood product transfusions in life-threatening situations are made temporary wards of the court for the purpose of providing medical treatment. In both of these situations, it is imperative that hospital counsel be consulted so that an emergency motion and hearing before the court may occur expeditiously.
Case #3. A 16-year-old was involved in an automobile accident and was seriously injured, sustaining fractures of both legs and multiple lacerations. He informed the staff in the ED that he was a Jehovah’s Witness and that it was against his religious beliefs to receive blood products. The orthopedic surgeon determined that surgery was necessary to reduce and fixate the right leg. The boy’s father consented to surgery with the proviso, however, that no blood products could be administered.
Blood loss during surgery and as a result of other injuries led the boy’s surgeon to believe that blood administration would be required to save his life, but the father continued to refuse to allow a transfusion. Pursuant to hospital policy, the hospital risk manager consulted on an emergent basis with hospital counsel who petitioned and received from the court the emergency appointment of a guardian ad litem to opine as to whether a blood transfusion would be in the best interests of the boy. An emergency hearing was held and an order allowing the transfusion was issued. Blood was administered and the minor eventually fully recovered from his injuries.
The minor and his mother subsequently sued the hospital, the risk manager, the physicians, and the guardian ad litem in federal court for violations of the minor’s and parent’s constitutional rights. The federal district court dismissed the suit on a motion for summary judgment, and the plaintiffs appealed. The court of appeals dismissed the appeal as frivolous and awarded the hospital double costs and attorney fees.
Commentary. Although the suit was unsuccessful, it illustrates several important concepts. First, the Jehovah’s Witnesses’ doctrine against receiving blood product transfusions is among the most strongly held of religious beliefs. Despite insurmountable odds, this boy’s family felt so strongly about the violation of their beliefs that they went to the time, expense, and grief of filing a lawsuit. This underscores the need to follow proper protocol and procedure when contemplating overruling the adamant desires of a minor’s parents. In this case, hospital risk management involved legal counsel early on to assure that proper procedure was followed. Second, this case demonstrates that the courts may not allow parents’ religious or other strongly held beliefs to adversely affect the health of their children. The fact that this case was dismissed on motion for summary judgment means that the parents were unable to present sufficient evidence against the hospital and physicians for a jury to find in their favor.
Summary
If one thing must be remembered regarding consent for minors in the ED, it is to "Do the Right Thing." The general rule is that, prior to treatment of a minor, consent from the minor’s parent or guardian is required. There are, however, numerous exceptions to this rule, most importantly, the "emergency exception." When parents or legal guardians are not available, the law requires appropriate medical screening and stabilization of emergencies with or without consent. When parents are available but refuse life-saving treatment, the law provides mechanisms to temporarily take the child into the custody of the court. The true test of the emergency physician’s interpersonal skills lies in handling the difficult cases that do not amount to life-threatening emergencies, but when delay in treatment would be detrimental to the child. In these cases, the physician’s job is to convince hesitant caregivers of what is best for the child without becoming defensive or hostile if the physician’s recommendations are challenged. Only by demonstrating patience and calm will the emergency physician engender the trust necessary to accomplish what is best for the child.
References
1. Schloendorff v Society of New York Hospital, 211 N.Y. 125 (1914).
2. Because of the subjective nature of this concept, most states have not adopted "mature minor" statutes. West Virginia is one state that has adopted this doctrine. See, Belcher v Charleston Area Med. Ctr., 422 S.E.2d 827 (W.Va. 1992).
3. EMTALA, 42 U.S.C. § 1395dd, has been discussed in previous issues of ED Legal Letter. This discussion is merely a brief discussion of the application of EMTALA to the specific issue of consent for minors. Regular readers of ED Legal Letter should be familiar with the provisions of EMTALA.
4. 42 U.S.C. § 1395dd.
5. M.C.L.A. § 333.9132.
6. Hospital Law Manual § 4-1 (Health Law and Compliance Center, Aspen Publishers, Inc. ed., 1974-1999) (hereinafter, "Hospital Law Manual"). See, Cal. Educ. Code §§ 49407 and 76407.
7. See, e.g., California Welfare and Institutions Code, §§ 362 and 727.
8. California Health and Safety Code, §1530.6.
9. California Family Code, §§ 6550 and 6552.
10. See, e.g., California Family Code, § 6922.
11. M.C.L.A. § 722.4.
12. See, e.g., California Family Code, § 7002 and M.C.L.A. § 722.4.
13. Id.
14. M.C.L.A. § 333.9132.
15. California Family Code, § 6926.
16. California Family Code, § 6927.
17. California Family Code, § 6928.
18. M.C.L.A. § 330.1707.
19. M.C.L.A. § 333.5121.
20. M.C.L.A. § 333.9132.
21. Hospital Law Manual, § 4-3.
22. See, e.g., In re McCauley, 564 N.E.2d 411 (Mass. 1991) (Court ordered transfusion of an 8-year-old leukemia patient whose parents were Jehovah’s Witnesses.).
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