An eight-year-old boy walks into the emergency department saying he was riding his bicycle home from school and fell on his wrist. He lives only two blocks away, and because his wrist hurts, he decided to stop by the emergency department to determine whether any treatment is needed.
The admitting clerk attempts, but is unable, to reach his parents. The policy of this particular hospital is that if two physicians declare that it is an emergency, minors may be seen and treated, even without parental consent.
What should be done with this patient? Should a physician evaluate the patient in the waiting room? Should a nurse take his vital signs?
If they declare that the wrist is the only potential injury, but it is not a true medical emergency, should they send the child home and ask him to return later with his parents?
Alternatively, should he be x-rayed and treated appropriately, even if this involves reduction of a fracture and casting without parental consent?
Case
A 15-year-old boy comes to the emergency department because he thinks that he has venereal disease.
He does not want his parents to know, so he asks the admitting clerk not to call his parents for permission for treatment. He says he will pay for the emergency visit with his own money.
Comment: It is general policy in emergency departments to call parents for permission to treat any minors who present to them. In the case of a potential medical emergency, however, a physican can treat the patient even without parental permission.
In this case, the emergency physician can elect to declare a potential emergency and treat the patient even without parental permission. Venereal disease, however, is generally not a true medical emergency, and ordinarily time can be taken to reach the parents to obtain permission for treatment.
Commentary
As a general rule, parents have the right to make decisions about the health care services that their minor children do or do not receive.
This authority derives from the more general authority that parents have over their children to decide such things, large and small, as where they will live, what they will eat, where or whether they will worship, and whether they will be educated in public or private schools.
As a corollary, minor children do not have the right to make the very same decisions about their own health care.
If they rebel at the idea of inoculations, surgery, or orthodontia, their parents have the authority to impose such things on them — along with religion, schooling, spinach, and ballet instead of television — if that is the parental choice.
These, of course, are general rules, and as the term suggests, there are a number of exceptions to these rules, as well as broad limitations on parental authority.
Parental authority ends where child abuse or neglect begins — a rule far simpler to state than to define but worth stating nonetheless.
Parental authority also gradually diminishes as the child’s capacity to make responsible decisions increases, not only as a matter of law but also as a practical matter too.
And, in the absence of a parent to make a necessary decision when the decision must be made immediately or harm will befall the child, necessity dictates that decisions be made by others on behalf of the parents and for the benefit of the child.
Sometimes this authority is expressly delegated, such as when a parent enrolls a child in a boarding school; at other times it is implicitly delegated, such as when the child is in the custody of a baby-sitter, relative, or neighbor.
However vaguely or conflictingly defined the term may be, the law requires that parents make decisions that are in the “best interests” of their children.
Anyone acting in place of the parents, whether selected by the parents, imposed by the state, or resulting from circumstance, is required to be guided by the same standard.
INFORMED CONSENT REQUIREMENT
When the person being treated by a physician is an adult, the administration of treatment without that person’s consent is a legal wrong — specifically, a “battery” — and the physician may be liable to the patient not only for any harm that may have been occasioned by the treatment but also, even if there is no harm, for the act of nonconsensual treatment which is regarded as a legal injury (though the damages awarded may be nominal).
Further, even if consent has been obtained, it is not legally effective if the physician has not explained before treatment the relevant therapeutic or diagnostic options and the risks and benefits of each, that is, if the physician has failed to obtain “informed consent.”
The failure to provide the required information is a type of negligence for which damages may be imposed if the patient is injured and if treatment would have been refused had proper information been provided.
The same is true in the case of a minor child, except that it is a parent, rather than the child, who must be informed and who must give consent before treatment is rendered.
There are a number of situations in which, depending upon the nature of the situation, one or both of the legal requirements to make disclosure of information and obtain consent may be foregone.
For present purposes, the relevant exception is for medical emergencies. The rationale for dispensing with disclosure and / or consent in an emergency is that the delay that would be occasioned thereby would seriously compromise the health or life of the patient.
If the patient is unconscious, consent can be sought from (and disclosure made to) the patient’s legal representative and should be sought if the time required does not jeopardize the patient’s well-being.
If the patient is conscious, but time is still critical, there may be situations in which consent should be sought from the patient but no disclosure made.
If, however, there is adequate time to make disclosure and obtain consent without serious jeopardy to the patient, informed consent must be obtained; there is not, for legal purposes, an “emergency.”
CONSENT FOR MINORS
The provision of treatment in a hospital emergency department often falls into the gray area between emergency and elective treatment. In such situations, common sense should rule but often does not, especially in the treatment of minor children.
Children are, by hospital policy, often kept waiting for hours until parents who work or are traveling can be contacted to authorize treatment.
Sometimes, parents cannot be located even after monumental efforts, so consent is obtained from a distant relative on two common, but often mistaken, assumptions: (a) that consent from some relative is an absolute prerequisite to treatment unless the child will die without it and (b) that the consent of a relative is acceptable.
In fact, hospitals need only make reasonable efforts to obtain parental consent, and failing that, medical personnel should render standard, accepted medical treatment for an injury or suspected injury to a child.
Further, obtaining consent from another relative will not shield the hospital or the physician from liability if they render nonstandard treatment or render standard treatment in a negligent manner.
NEED FOR EVALUATION OF INJURY
First Case
Whatever else may be concluded, there should be no disagreement that the child should not be turned away and told to return later simply because his parents cannot be reached.
There must be at least a minimal medical evaluation of his condition, the purpose of which is to determine whether treatment is urgently needed.
This evaluation must be conducted by properly trained personnel. Thus, in this case a clerk’s determination that the child should be told to go home and return later with his parents is extremely risky from a legal perspective if it turns out that he does need immediate treatment.
The evaluation need not be conducted by a physician if it is within the qualifications and training of a nurse or a physician’s assistant to determine the urgency of the need for treatment.
However, if it is the policy or custom within the hospital for that determination to be made by a physician, failure to do so may be grounds for the imposition of liability.
If the initial evaluation requires more than a physical examination, such as an x-ray, should it be administered in the absence of parental authorization?
The answer must be in the affirmative if the x-ray is necessary to rule out the need for emergency treatment. Since there is no parental consent, the administration of the x-ray is technically a battery.
I believe, however, that there is a legal privilege to perform the x-ray, which would relieve the physician and / or hospital of liability.
If the parents were available and refused to permit the x-ray and the x-ray were necessary to determine whether further treatment were necessary, the parental failure to permit the x-ray could easily constitute grounds for child neglect.
In such a case, either a state administrative agency (for example, child welfare agency) or a court would order that the x-ray be performed. Thus, in the absence of the parents, it would seem that the x-ray should be permissible.
This same line of reasoning cannot, however, be used to justify more thorough treatment of the child should it turn out that more treatment is needed.
If treatment is urgently needed, it would be legally permissible to render it under the emergency exception to the requirements for consent or informed consent.
If, by contrast, further treatment were needed but not urgently so, the parents ought to be consulted so that they could exercise any preferences they might have as to the time, place, and manner of treatment.
Perhaps they wish to select their own physician. Perhaps they belong to an HMO which will treat the problem at no cost in a different hospital, but they will have to pay all or part if the child is treated at this hospital.
Perhaps there is a choice of treatments; if so, it is the parent’s prerogative to decide among them on the basis of their own values or their knowledge of their child’s concerns.
One treatment may be more painful than another; one may be more disfiguring; one may be more likely to succeed. The trade-off among these concerns is a matter for the parents and not for the medical authorities.
Second Case
In the case of the youngster who fears that he has venereal disease, slightly different principles must come into play, since it is a given of the case that the delay necessary to obtain parental consent will not, in itself, harm the child.
Rather, the fear is that if the hospital insists on parental consent, the child will simply leave without obtaining treatment at all.
Whether this will lead to any harm to the child is impossible to say, since we do not know if, in fact, he has venereal disease or whether, if he leaves now, he will obtain treatment later anyway.
Again, the evaluation of the child ought to be undertaken at his own request without parental involvement. This is so, in part, because the risks to the child seem greater if he is turned away than if he is evaluated and, in part, because at age 15 he is close to being mature enough to make such decisions for himself.
That he has sought care on his own initiative is testimony to that fact. A number of states permit “mature minors” to authorize their own health care in some circumstances.
If the evaluation determines that he does not have venereal disease, there is no need to notify his parent.
If he does have venereal disease, he should be informed that he does, what the treatment should be, and that the hospital would like his permission to notify his parents so that treatment can be discussed with them.
If he refuses to permit parental notification, after appropriate efforts by trained persons are made, treatment should be provided without parental notification or authorization only if the treatment has no substantial side effects.
If, however, the treatment poses risks to the child’s health as well as benefits, his parents should be consulted even without his permission.
Some states have statutes that specifically authorize children to consent to treatment for venereal disease.
Knowledge of such statutes — as well as of similar statutes for the provision of drug and alcohol abuse services, mental health services, and contraceptive services and more general statutes authorizing children to consent to health care in a wider variety of situations — is critical to the operation of a hospital emergency room.
The existence of such statutes and an understanding of them may rather simply decide such problems.
My analysis supports the conclusion that the law, as it bears on these cases, is sensitive to the basic ethical values of parental rights, the protection of minors, and patient confidentiality and that it provides sufficiently flexible guidance.
Any impression that good patient care and the physician’s legal responsibilities are in conflict here can be convincingly dispelled by a proper understanding of the law.
