Public Health Law Map - Beta 5 - Medical and Public Health Law Site

) Children in the Emergency Room
A classic problem is children brought to the emergency room with conditions that
are not life- threatening. The child, who may be medically able to consent to
treatment, is legally unable to consent because of his or her age. An example is the
problem of the 14-year-old who has broken an arm and is brought to the hospital
by a neighbor. Neither the child nor the neighbor is legally able to consent to
treatment. The cases hold that the physician may rely on the emergency exception
to consent only if immediate care is necessary to preserve the use of the child’s
arm.
The case law on the definition of an emergency for the treatment of children is so
restrictive because the only cases that are brought to court involve bizarre facts,
such as children being brought in for elective surgery without, or against, their
parents’ consent. If parents were suing a physician because he or she relieved their
child’s suffering, the issue would quickly shift from the physician’s liability for
malpractice to the parents’ liability for child abuse and neglect. In general, it is
better for the physician to be explaining to a jury why he or she helped someone
rather than stand by and watch the child lose life or limb. Most states have passed
laws that allow family members other than parents to consent to care for children
and otherwise make it easier to care for children in the emergency room.
c) Refusal of Care
A rare abuse of the emergency exception involves patients who have refused to
consent to specific medical care. The refusal may be based on religious beliefs, such
as refusing blood transfusions, or on a personal decision, such as refusing intensive
care. If the physician disagrees with such a decision, the time to fight the decision is
when it is made. There is no legal justification for waiting until the patient is
unconscious or for physically or chemically restraining a patient and then rendering
care against the patient’s consent. This would not constitute an emergency
exception to the need for consent. On the contrary, it would constitute battery. The
solution in these cases, as discussed later in this section, is to apply to the courts for
permission to treat against the patient’s consent.
2. Legally Mandated Treatment
There are three situations when persons must submit to medical care or testing
without their permission, outside of the emergency situation. The first are patients
who are have been judged legally incompetent and have had a guardian appointed by
the courts or who have been involuntarily confined in a mental institution. Whereas
such patients do not give up all their rights, the guardian may consent to care for
them and may even require them to submit to care that they have refused. [In re
Conservatorship of Foster, 547 N.W.2d 81 (Minn. 1996)]
The second situation involves public health orders. A court with proper jurisdiction
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