Children and Informed Consent
By Jeremy Wale
Children present unique challenges to healthcare providers, particularly regarding consent. A patient’s absolute right to make informed decisions regarding his or her medical care is the foundation of informed consent, yet children are not able to make informed decisions. 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.”
Let’s first examine some background information on informed consent. As a legal requirement, it 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.
Now back to children and informed consent. A parent may consent to treatment for his or her own child. There are certain instances where a minor (under age 18) 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. Check state laws before allowing a minor to be treated without parental consent.
A common question is 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. 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.
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).
Jeremy Wale, JD, is a Risk Resource Advisor with