Foster Swift Health Care Law E-News
February 29, 2012
Physicians and other medical providers inevitably treat a variety of patients that present unique and challenging issues. One group of patients that raise such an issue are minors. The unique issue with minors is the level of consent sufficient for a provider to tender medical treatment. For instance, when a mother brings her 4 year old son to the pediatrician for a routine wellness visit, the office staff may rely on her authorization to treat the boy. Is there a difference if the boy was brought in by his grandmother while his parents were away on vacation? What if the boy was 17 and drove himself to the appointment? If the boy's parents are divorced, can a stepparent give permission for his treatment? These and a number of other intriguing issues are raised with treating minors and were discussed during a recent seminar by Foster Swift health care attorneys.
Failing to obtain proper consent for a minor child's health care treatment exposes a medical provider to undesired legal liability. Additionally, the provider may face difficulty in obtaining payment for the services provided.
The crux of the consent issue is determining who has the legal authority to give permission for medical treatment of a minor child. (Although it varies from state to state, in Michigan, a minor is a child age 17 or younger.) In Michigan, the general rule is that the child's parents are the proper people to consent to treatment of that child. The child's court-appointed guardian or another person in loco parentis may also authorize treatment on the child's behalf. The reasoning behind this rule is that a child does not have the legal capacity to enter into a contract for medical services or the comprehension to make decisions about his or her own medical treatment. Thus, a surrogate decision-maker must make the decisions on the child's behalf.
While this is the general rule, there are a number of exceptions. In emergency situations, consent is implied and treatment may be provided regardless of whether the parent is present and gives express consent. Other situations where parental consent is not required include: abortion services; birth control information and contraceptives; certain mental health services, inpatient and outpatient services; prenatal and pregnancy related care; care for the child of a minor; substance abuse services; and treatment for certain sexually transmitted diseases.
When one of these exceptions is not available, the issue remains of how should a medical provider handle a situation where a minor's parent is unavailable to consent to treatment. Several "best practices" in dealing with this situation are as follows:
- Ask to See Paperwork. If there is a question about the authority of a person bringing a child into your office for health care services or treatment, ask to see proof of the individual's authority. The authority may be granted through many different documents. For instance, authority may be clearly outlined in a divorce judgment or other court order. In a non-divorce situation, such as a grandparent or babysitter bringing the child in, a Power of Attorney or other note of authority may grant the requisite authority. If the child's guardian brings the child in for treatment there will be a Letter of Authority that has been issued by the court.
- Review the Documentation. Once the paperwork is collected, the next step is to ensure that the individual present with the child is the person actually granted authority to make decisions. Confirm that the paperwork is signed by the child's parent and dated within 6 months of the appointment. Finally, ensure the scope of authority conveyed to the individual covers the services that the child will receive.
- Consider Giving Parents an Authorization Form to Complete. To ensure consistent application of these best practices, it may be beneficial for your attorney to draft a sample Power of Attorney that you can use in your practice. Having staff members review the same document on each occasion will minimize disruption to your practice.
- Consider the Circumstances Surrounding the Appointment. In some situations, it may be possible to infer a parent's consent to treatment, even in their absence. Consider who scheduled the appointment for the child and the circumstances necessitating it. If a child comes in for an appointment that was scheduled by a parent the last time they were in the office, the parent has likely consented to treatment. Be wary of the minor's appeal for privacy or secrecy, or requests for additional services not contemplated by the parent's planned visit.
- Call the Parent(s). If there is a question about consent for a minor's treatment, obtain authority from the parent over the phone. Ensure you have multiple contact numbers for parents in the file so that this consent can be easily obtained.
- Ensure Staff Members are Following Standard Policies. Develop and adopt standard policies and procedures regarding the treatment of minors and documentation of the parent's consent. These should be included in the staff members' employee handbook and period orientations.
- Call Your Attorney. If there are additional questions regarding the authority of an individual in your office to consent to a minor child's treatment, refuse to treat the child until you have spoken to your attorney. Your attorney can also help you brainstorm possible situations and solutions before they actually occur in your office. They can also help you develop your best practice policies.
By implementing a number of the "best practices" related to obtaining consent for treatment, a medical provider will not only decrease the risk of liability but also ensure his or her practice operates smoothly. For more information about additional best practices or the best strategy for implementing the items outlined above, please contact Mindi M. Johnson at 616.726.2252.