Many states allow third parties (e.g., relatives and nannies) to consent to a minor’s medical treatment, as long as the parent’s/guardian’s authorization is already in place. Clinicians are sometimes tempted to bend the minor consent rules when the adolescent is older or when the patient comes in with a relative who appears to be a caretaker, even though that caretaker does not have legal standing to consent to the adolescent’s medical treatment. Consider the conflicting interests of the parties in the following case.
More Information About Adolescent Consent and Privacy
The following resources provide information about additional areas of adolescent treatment that practices often find challenging relative to the consent process:
- Case Study: Consent for Treatment of an Adolescent: Drug Testing
- Case Study: Consent for Treatment of an Adolescent: Unaccompanied Adolescents
- Case Study: Parental Access to Adolescent Patient Portals
- Case Study: Adolescent Health Information: Is it Confidential?
- Article: Adolescent Health Information Privacy
- Article: Parental Concerns with Adolescent Vaccines
- Article: Consent for Treatment of an Adolescent: When Divorced Parents Disagree
A 17-year-old patient presented to an urgent care center (UCC) with her aunt, complaining of a shoulder injury sustained during soccer practice. The aunt consented to x-rays and treatment. No attempt was made to contact the patient’s parents. Allowing relatives to consent in place of parents had been a long-standing policy at the UCC. The next day, the patient’s mother called threatening a lawsuit, claiming she would not have consented to treatment. The UCC office manager called the NORCAL Risk Management department for advice.
Unless an adolescent patient has a legal right to consent to proposed treatment, or there is a third-party authorization for consent on file for the person accompanying the minor, any non-urgent diagnostic and treatment decisions should be delayed until informed consent can be obtained from a parent/guardian.1 In general, medical care that is “necessary and likely to prevent imminent and significant harm” to a minor patient can be provided if parental consent is not possible.1 This patient’s shoulder injury would probably not be considered an emergency.
Even though the 17-year-old patient seemed mature enough to make general medical decisions independently, in this state she did not have the legal capacity to consent to treatment of her shoulder. (A limited number of states allow older adolescents to consent to general medical treatments based on various circumstances.) Were this issue to go to court, perhaps the defense team could argue that the 17-year-old patient was mature enough to consent to treatment of her shoulder injury; however, deeming older patients mature enough to consent to general medical treatment as a practice policy is unwise.1 Additionally, many states shift financial liability to the adolescent when the adolescent has consented to the treatment. Therefore, if it is appropriate for an adolescent patient to consent to anticipated treatment without parental involvement or knowledge, payment issues should be addressed up front with the adolescent.
Authorization for Third-Party Consent for Treatment of an Adolescent
Many states allow third-party consent to a minor’s medical treatment with parental/guardian pre-authorization. In these situations, a child’s parent/guardian may sign a statement authorizing a third party to consent to medical care if the child’s parents/guardians will not be available. When the need for third-party consent appears likely, arrangements should be made for the parent/guardian to provide a written preauthorization. Had an appropriate pre-authorization for treatment been on file allowing the aunt to consent to the patient’s medical treatment, the UCC could have accepted the aunt’s consent for the treatment of her niece.
According to the laws of the state in which the treatment took place in the foregoing case (and most other states), the treatment of this adolescent patient without parental consent would have been considered both battery and unprofessional conduct. After being provided with risk management resources and advice for establishing appropriate minor informed consent policies and procedures, this caller was referred to the Claims department to open a precautionary file in case the mother followed through on her threat to sue.
Medical Liability Risk Management Recommendations
Careful planning and good office policies and procedures can prevent most situations where clinicians and staff will be tempted to treat an adolescent patient without proper consent. Consider the following recommendations:1,2
- Review state laws related to third-party consent for minor healthcare and only adopt policies and procedures that are consistent with those laws.
- Make a practice-wide determination about whether third parties will be allowed to consent for adolescent patient non-emergent care and create a policy consistent with that determination. (If all physicians within the practice do not adopt the same policy, problems can arise during coverage arrangements.)
- If the practice will allow third-party consent, create a third-party consent policy that includes:
- How to determine whether the person requesting it can delegate consent (e.g., what documents must be provided by a guardian or a divorced parent)
- Which third parties can be delegated the power to consent
- The method by which clinicians/staff will ensure the identity of the authorized third party:
- Consider requesting a signature and photo ID from the third party.
- The circumstances under which a third party can/cannot consent (e.g., you may decide to honor third-party consents when there is a scheduled absence of a parent, such as vacation or business travel, but not for unscheduled absences)
- The services for which the third party can/cannot consent (e.g., preventive care, allergy shots, and immunizations, but not x-rays or other diagnostic tests)
- The frequency with which third-party consents must be updated
- Documentation requirements for compliance with the policy
- Educate physicians and staff about third-party consent policies and procedures.
- If there are specific circumstances for which third-party consent cannot be given, ensure that they are clearly indicated in the patient’s record.
- Consider creating a template form that can be used for third-party consent. The American College of Emergency Physicians has a sample consent form available online that may be helpful.
- Keep authorization documents in the patient’s record in a place where they are easily accessible.
- Clearly communicate third-party consent policies and procedures to parents and adolescent patients, preferably in writing.
- Document in the minor’s medical record who is consenting to the treatment on behalf of the minor, the basis on which the consent is appropriate (e.g., parent, guardian, legal status of minor), and the manner in which the consent was obtained (i.e., if not in person, then by telephone, fax, or email).
Even when a third-party consent authorization is in place, it’s wise to attempt to contact a parent to confirm consent and update the parent about the minor’s status, particularly when the patient is being treated for an injury.3
1. American Academy of Pediatrics Committee on Pediatric Emergency Medicine and Committee on Bioethics. “Consent for Emergency Medical Services for Children and Adolescents.” Pediatrics, 2011;128(2):427-433.
2. Gary N. McAbee, DO, JD, et al. “Consent by Proxy for Nonurgent Pediatric Care.” Pediatrics, 2010:126(5)1022-1031.
3. California Hospital Association. Consent Manual 2018: 2.16. (resource not available online at time of publication)
American College of Emergency Physicians. “Consent for Medical/Surgical Care/Emergency Treatment and Child’s Medical Information.” (sample form)