Challenging situations can arise when a minor presents with a request for treatment of certain types of ailments or non life-threatening injuries. Who is authorized to consent to treatment in such circumstances? asks Fay Rozovsky, president of the Rozovsky Group.
A 10-year-old girl, accompanied by her 15-year-old sister, presented at an urgent care clinic. The 10-year-old had a gash on her left knee and multiple bruises on her hands. “What happened to you?” asked the nurse practitioner.
The 10-year-old explained that she was out playing with her friends when one of them decided that they should tie ropes on tree limbs and swing themselves over some rough terrain. “On my third try I slipped and I fell on some old tree limbs, rocks, and things. My knee really hurts,” said the girl.
“Did you let your parents know what happened?” asked the nurse practitioner.
“No. And I do not want to do so. My parents will be really angry if they find out that I disobeyed them. They told me not to play in that area because it was filled with all kinds of dangerous things,” said the girl.
“Why is your sister here?” asked the nurse practitioner.
The older child responded, “I can explain, she called me on my cellphone and made me promise not to tell our parents. She was really scared. When I saw what had happened to her, I decided the best thing to do was to bring her here. She is right. Our parents will be ballistic. Dad will really give it to her if he finds out what she did this afternoon.”
“Well young ladies, there is definitely a need to patch up these injuries. But I need an authorization for treatment from someone who is recognized under the law as having the power to consent to treatment. Neither of you has that authority and this is not an emergency situation in which I can assume that your parents would agree to my providing treatment.
“I can contact your parents and speak with them or you can do so. But I need an authorization from someone who has the authority to consent to treatment,” said the nurse practitioner.
The sisters discussed the situation and the older sister said, “We want to thank you. Please call this number. It is our Mother’s cellphone number. We think she will be less upset than our Dad.”
The nurse practitioner spoke with the mother. She arrived a short time later and met with her daughters and the nurse practitioner. “Why did you come here first without me?” asked the mother.
The 10-year-old replied, “Because I thought, well we thought, that you and Dad would be so angry that you would really punish me badly.”
“Oh come on now, let us not get dramatic. Punish you? How? Ground you for a week? Give you extra chores to do around the house? I am just glad that you were not severely injured,” said the mother. Turning to the older sister she said, “And you should have called me. You are not her mother, understand?”
The nurse practitioner obtained a treatment authorization from the parent. She also asked for a medical history, including the last time the child had received a tetanus shot. A tetanus injection was administered. The wounds were cleaned and a few sutures were used to close the gash in the knee. Detailed discharge instructions were given for follow-up care. Speaking directly to the young patient, the nurse practitioner said, “Tell me what you have to do as part of your treatment at home?”
The patient gave a correct response. The nurse practitioner replied, “Good. Just remember, you will be sore for a few days where I sutured your knee. Take it easy, too, and keep that wound clean.”
After the threesome left the urgent care clinic, the nurse practitioner wrote a note in the patient’s electronic health record (EHR) in which she explained the circumstances, the conversation with the two children and the discussion and authorization obtained from their mother. Since the urgent care clinic was part of an integrated care network in which the patient’s pediatrician was a participant, the nurse practitioner sent a notification of care to the physician so that she could follow up with the patient.
Observations for the case
Does this sound familiar? Youngsters and adolescents telling care providers that they do not want their parents or guardians to know that they have violated some rule, and as a consequence found themselves with a broken limb, major gash, or even a concussion. While some children may have good reason to fear serious retribution—including a spanking or more—in many cases this is not so. Parents are just thankful that despite the indiscretion that led to the injury, their children are alive and their injuries can heal. Grounding children for a week or adding chores to their daily routines pale in comparison to the possibility of irreparable harm.
In the case above, the nurse practitioner handled the encounter quite well. There were no signs of child abuse or neglect. Instead, there was a young adolescent trying to support her younger sister whose fears of severe punishment were unfounded.
The nurse practitioner did not need to inform the patient and her sister that at some point the parents would find out. Even if someone at the urgent care clinic thought there was no need for parental consent, the sutures, the abrasions, and an Explanation of Benefit (EOB) reflecting an insured encounter at the urgent care unit would say it all.
The case reflects a non life-threatening injury. The criteria for consent exceptions were not met for either a medical emergency or impracticality of consent. In view of the facts presented one would be hard-pressed to ‘treat and ask questions later’ in such a circumstance. In short, the nurse practitioner handled the situation quite well, including the teach-back at discharge and the documentation in the EHR.
Why minors and consent are frequently an issue
The term ‘minors’ captures an interesting demographic cohort. Traditionally, the law considered children below the age of majority as lacking the legal capacity to give a treatment authorization.
Over the years, the law has changed through case law, legislation and regulations. Thus many jurisdictions recognize the notion of an ‘emancipated’ minor. When certain legal criteria are met, a minor who is deemed emancipated can make treatment choices on his or her behalf. Still other jurisdictions recognize the so-called ‘mature minor rule’, thereby permitting a minor to make his or her treatment choices.
Added to the mix are age of consent laws for certain types of treatment. Thus in some jurisdictions a 12-year-old may seek treatment for a sexually transmitted disease without parental consent. In other states, a 14-year-old may give consent to other forms of care, including substance abuse. Still other state laws permit minors to consent to blood donation.
The important point of distinction is what state law says about minors and consent to treatment. Moreover, whether a minor is authorized to give consent to treatment turns on the specifics of the law of the jurisdiction in which he or she is seeking care—not where the minor may reside.
Not all minors are treated equally
Even in those jurisdictions that recognize the emancipated minor, mature minor, or age of consent law exceptions, there can be disparate responses. An emancipated minor may be able to give consent to treatment for her own needs, but in some states that minor cannot give parental consent for her infant’s treatment. Had the emancipated minor sought treatment in another jurisdiction that did not have the latter restriction there would be no question that she could give consent to treatment for her minor child.
Although many states have age of consent laws for certain types of care, some go further than others, granting the treating care provider the prerogative to notify the parents or guardian notwithstanding the objections of the patient. Once again, had the minor sought care in another age of consent jurisdiction with a similar age requirement, he or she might not find the latitude granted to the care provider to notify the parents or guardian.
A quandary for care providers
Healthcare providers may ‘know’ the law on minors and consent, but others may not be so well informed. How likely is it that part-time associates on the caregiving staff are conversant with the treatment consent requirements of minor? Consider too, those who rotate through a healthcare setting, including, residents, locum tenens, traveling nurses, and healthcare professionals drawn from staffing agencies.
There is a definite liability risk exposure when care providers in the absence of solid knowledge make decisions regarding minors and consent to treatment. Unauthorized treatment in such circumstances can result in claims of lack of informed consent, a state agency investigation for violation of state law regarding patients’ rights and consent, and, potentially action by a state disciplinary or licensure board. Add to the mix the prospect of formal patient grievances by a parent or guardian and negative publicity through traditional and social media sources. It can be an unwelcome situation.
It is unrealistic to think that care providers will know all the requirements for minors and consent. Instead, there are several practical strategies to consider to aid in the provision of care to minors in a way that is consistent with applicable law. These strategies include the following:
Implement minor consent policy, procedure and practice routines. Provide staff with clear, easy-to-understand policies, procedures, and practice routines to follow with respect to minors and consent to treatment. Recognizing that state laws may change in the area, consider at a minimum an annual review of such information. Make certain that staff have up-to-date policies, procedures, and practice routines.
Provide education. Offer orientation and regular in-service training for those engaged in the consent process. Recognize that temporary or traveling personnel need this training to make them conversant with applicable state law.
Institute expectation-setting with the patient. Think about the ways in which staff should communicate with minors who want to authorize treatment in the absence of a parent or guardian. Incorporate expectation-setting techniques with minor patients in staff training.
Provide staff with a minor consent matrix tool (see image). Implement a tool that captures relevant consent requirements as it relates to minors in the relevant healthcare setting. Incorporate the tool into the EHR system and in other online sources that can be used by care providers as decisional aids for healthcare professionals developing a care plan for patients. Update the content of the Minor Consent Matrix Tool on a regular basis.
Make effective use of a chain of command. Establish a framework within the chain of command plan for care providers to seek guidance on minors and consent. Make certain that there is a ‘go to’ person readily accessible at all times.
Can this minor give consent or do I have to call the parents? It is a frequent question. Care providers will give little consideration to such concerns if a child presents with a life- or health-threatening event that requires immediate treatment. The child who presents in full-blown shock from a bee sting or a systemic allergic reaction to peanut butter exemplify cases in which the emergency exception would be applicable.
The more challenging situations involve non-emergency cases in which a minor presents with a request for treatment of certain types of ailments, behavioral health services, substance abuse treatment, or non life-threatening injuries. Who is authorized to consent to treatment in such circumstances?
Providing care providers with practical tools such as the Minor Consent Matrix Tool can help facilitate the right determination. Along with good policies, procedures, protocols and effective communication, risk managers may receive fewer enquiries asking who needs to give consent.
Fay A. Rozovsky, JD, MPH, is president of the Rozovsky Group. Based in Williamsburg, Virginia, Rozovsky is the author of Consent to Treatment: A Practical Guide, 5th Edition, (2015) published by Wolters Kluwers Law & Business in New York. She can be contacted at:
Fay Rozovsky, Rozovsky Group, US