Healthcare South Policy on Consent for Treatment
The following policy has been adapted from the guidelines of the American Academy of Pediatrics. They can be found in Consent for Medical Services for Children and Adolescents and Informed Consent, Parental Permission, and Assent in Pediatric Practice.
Today less than one third of children live in two-parent families in which only the father works outside the home. Because of foster care placement, or temporary or permanent arrangements with relatives or friends, parents may not be available to give consent for treatment of their children. There are two situations that need to be examined: first where emergency treatment must be given and second where non-emergent treatment might be given.
Most states have provisions in which competent minors may arrange for care involving contraceptives, pregnancy, abortion, sexually transmitted diseases, drug and alcohol abuse, and psychiatric disorders. The provisions are less clear when these situations are not in force.
The dilemma for practicing pediatricians is whether to follow a strict interpretation of the law or to adopt a more practical approach. Clearly, consent is not required in life- or limb-threatening emergencies, although the definition of emergency varies from state to state. In most instances, however, when pediatric patients come to our offices, only routine care, not emergency care, is needed. In support of a common sense approach to treatment, Holder noted that in a review of 30 years of emergency medical care, lack of consent was not the basis for a judgment against the physician. Legal definitions aside, the overwhelming sentiment is that physicians should be guided by an approach that is in the best interest of the patient. This will be the primary criterion we use when the decision to treat or not is made.
To provide expedient care for children in an ethical, legal, and reasonable manner in situations where nonelective medical treatment is given, the American Academy of Pediatrics (AAP) makes the following recommendations, which we will make every attempt to follow. The first several of these cover an emergent situation. The later guidelines define when a minor could be considered to be giving informed consent, which in many but not all instances is binding. In a non-emergent situation, we will use guidelines #9 and #10 to determine the patient's decisional capacity or #11 to determine legal empowerment.
1). When another adult is acting in place of a parent for a child (in loco parentis), the physician should document the situation in the medical record, including attempts to obtain verbal or written consent from a parent.
2). Physicians in primary care settings might assist parents by providing them information regarding the need to provide written consent for nonelective medical treatment for their child when unavailability can be anticipated, including times when the child is in child care, left with friends or relatives, at school or camp, or with noncustodial relatives.
3). Parents should provide child care centers, schools, or other caretakers with the following information: how they can be reached if medical care becomes necessary; basic information about the child's health care record, including immunizations, allergies, medications, and chronic illnesses; and preferences for a physician or facility for treatment. Written consent should be provided.
4). No evaluation of a life-threatening or emergency condition of a child will be delayed because of a perceived problem with consent or payment authorization. Decisions regarding the emergent nature of treatment should be made on the basis of that evaluation.
5). The act of leaving a child with a custodian by the parent or the state represents implied consent in situations where the parent is not immediately available for verbal consent, and nonelective medical care is needed. These situations might include, but are not limited to, the following conditions:
* Relief of pain or suffering
* Suspected serious infectious disease
* Assessment and treatment of serious injury
* Life-, limb-, or central nervous system-threatening conditions.6). Patients should participate in decision-making commensurate with their development; they should provide assent to care whenever reasonable. Parents and physicians should not exclude children and adolescents from decision-making without persuasive reasons. Indeed, some patients have specific legal entitlements to either consent or to refuse medical intervention.
7). Although physicians should seek parental permission in most situations, they must focus on the goal of providing appropriate care and be prepared to seek legal intervention when parental refusal places the patient at clear and substantial risk.
8). Only patients who have appropriate decisional capacity and legal empowerment can give their informed consent to medical care. In all other situations, parents or other surrogates provide informed permission for diagnosis and treatment of children with the assent of the child whenever appropriate.
9). The doctrine of informed consent reminds us to respect persons by fully and accurately providing information relevant to exercising their decision-making rights. Experts on informed consent include at least the following elements in their discussions of the concept:
a) Provision of information: patients should have explanations, in understandable language, of the nature of the ailment or condition; the nature of proposed diagnostic steps and/or treatment(s) and the probability of their success; the existence and nature of the risks involved; and the existence, potential benefits, and risks of recommended alternative treatments (including the choice of no treatment).
b) Assessment of the patient's understanding of the above information.
c) Assessment, if only tacit, of the capacity of the patient or surrogate to make the necessary decision(s).
d) Assurance, insofar as is possible, that the patient has the freedom to choose among the medical alternatives without coercion or manipulation.10). Decision-making involving the health care of older children and adolescents should include, to the greatest extent feasible, the assent of the patient as well as the participation of the parents and the physician. Pediatricians should not necessarily treat children as rational, autonomous decision makers, but they should give serious consideration to each patient's developing capacities for participating in decision-making, including rationality and autonomy. If physicians recognize the importance of assent, they empower children to the extent of their capacity.[12] Even in situations in which one should not and does not solicit the agreement or opinion of patients, involving them in discussions about their health care may foster trust and a better physician-patient relationship, and perhaps improve long-term health outcomes.
Assent should include at least the following elements:
a) Helping the patient achieve a developmentally appropriate awareness of the nature of his or her condition.
b ) Telling the patient what he or she can expect with tests and treatment(s).
c) Making a clinical assessment of the patient's understanding of the situation and the factors influencing how he or she is responding (including whether there is inappropriate pressure to accept testing or therapy).
d ) Soliciting an expression of the patient's willingness to accept the proposed care. Regarding this final point, we note that no one should solicit a patient's views without intending to weigh them seriously. In situations in which the patient will have to receive medical care despite his or her objection, the patient should be told that fact and should not be deceived.11). The traditional notion of informed consent clearly applies to patients who have reached the legal age of majority, except when the patient has been determined to be incompetent. In addition, laws designate two settings in which minors have sole authority to make health care decisions. First, certain minors are deemed "emancipated" and treated as adults for all purposes. Definitions of the emancipated minor include those who are: 1) self-supporting and/or not living at home; 2) married; 3) pregnant or a parent; 4) in the military; or 5) declared to be emancipated by a court. Second, many states give decision-making authority (without the need for parental involvement) to some minors who are otherwise unemancipated but who have decision-making capacity ("mature minors") or who are seeking treatment for certain medical conditions, such as sexually transmitted diseases, pregnancy, and drug or alcohol abuse. The situations in which minors are deemed to be totally or partially emancipated are defined by statute and case law and may vary from state to state. Legal emancipation recognizes a special status (e.g., independent living) or serious public and/or individual health problems that might not otherwise receive appropriate attention (e.g., sexually transmitted disease).
