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

1. Documenting Who Can Consent for Your Patients
Documenting consent to medical care for minors is a special case of the general
problem of documenting proxy consent: the person who may consent to the care is
not the person receiving the care. The physician must first document the relationship
between the person giving consent and the patient and then document the risks and
alternative treatments that the consenting person was informed of. If the patient is a
mature minor, the physician should also discuss the treatment with the minor and
document this discussion.
One common problem is that pediatric patients are often brought to the office by
someone other than the parent or legal guardian. In a busy pediatrics practice, it is
easy to lose track of who has the legal right to consent to medical care for a child. As
the divorce rate increases, more children have multiple parents with varying rights to
consent to medical care. Ideally, the first time children are brought to the office, they
should be accompanied by the parent or guardian who has full authority to consent to
care. At that time, the physician should obtain written consent to care, including
written authorization for any other persons who will be bringing the child in for care.
This authorization should list who may consent to the child’s care and whether there
are any restrictions on what kind of care they may authorize. Although it sometimes
cannot be avoided, the physician should check with the parents or guardian before
accepting this proxy consent for surgical procedures or extensive nonemergency
care. If there is disagreement between divorced parents over a child’s medical care, it
is important to find out which parent has the legal right to consent to the child’s care.
This can usually be determined by a call to the clerk of the court that has jurisdiction
over the divorce. Child welfare services can also help in determining this
information.
If there are disputes between the parents about the treatment or about who has the
authority to consent, these disputes should be documented. It is important to
document the rationale for deciding to accept the consent for treatment. The medical
necessity of the treatment should be stressed. All contacts with child protective
services should be documented. If the child is hospitalized, this information should
be copied into the hospital medical record. Physicians who render necessary care to
children are seldom sued for failure of consent. Proper documentation is important to
reduce the chance that the physician will be sued as an ancillary party in child
custody battles.
2. Special Circumstances
When a child’s parents are divorced or legally separated, the physician can no longer
assume that both parents have the right to consent to care for the child. The right to
consent depends on the state law and the court’s orders in the specific case. The
parent with legal custody usually has the authority to consent to care for the child;
however, the physician seldom knows which parent has legal custody. This is
especially problematic in states that allow joint custody.
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