Healthcare Legal Issues: Care and Treatment of Minors
The evolution of the hospital is a unique social phenomenon reflecting societal attitudes toward illness and the welfare of the individual and the group. Hospitals existed in antiquity, in Egypt and in India. After Christianity became the state religion of the Roman Empire, hospitals were built in Christian nations. Subsequently, after Islam arose, hospitals were built in Moslem countries as well. Regardless of questions of their origin, hospitals and the practice of modern medicine have continued to evolve. Today, people of all faiths and non-faiths may study medicine, work in hospitals, and service worldwide relief organizations. Such broad tentacles required the development of healthcare administration, which encompasses both the technical aspects of the management of healthcare delivery and the social and public policy issues related to access to care (Pozgar, 2007). With this evolution of healthcare practice, hospital structures and functions have necessitated new hospital administration, thus spawning healthcare legal issues, particularly with the care and treatment of minors.
Fifty years ago, the issue of medical treatment of minor children under the age of 18 would never have been considered controversial. At that time, parental consent was required for almost any type of medical treatment, as it was required for any other situation involving children. According to Moore (2008), a minor child (person under the age of 18) may not receive medical treatment, without the consent of the minor's parent, legal guardian, or a person acting in loco parentis (PILP). Minors were simply not considered competent to make medical decisions. However, the past 50 years have witnessed a gradual expansion of the rights of minors, and health care has been no exception. Minors who previously had no medical rights now found themselves in the position of making decisions about the most intimate medical procedures.
Insomuch, the area of medical treatment of minors is still controversial, especially as it relates to certain procedures and conditions such as abortion and sexually transmitted diseases. Many states grant minors broad leeway to determine the course of their medical treatment, and others grant them very few rights. There is little agreement by either medical professionals or state lawmakers as to how far minor rights should go regarding medical treatment. What is at issue in the debate over minor rights to medical treatment is a tension between the parental responsibilities toward the child, the immaturity and vulnerability of children, and the child's right to be emancipated from the decision of the parent. This tension has produced a patchwork of laws that makes it difficult to make any overriding statements about minor and parental rights in regards to medical treatment.
The crux of the debate over the treatment of minors is the doctrine of informed consent. A person must offer informed consent to any medical treatment given to them, or the physicians involved can risk legal liability. Informed consent has always been a crucial part of the doctor-patient relationship, and has been viewed by courts as a fundamental right (Kaushik et al., 2010). However, in the case of children, the question is, can they offer informed consent, or does that informed consent have to be provided by their parents, who may be seen as more capable of making a knowledgeable decision on a subject as important as medical care. Beyond this simple question are an important set of underlying questions, pertaining for example to the age at which a child may become capable of informed consent, and whether there are certain procedures in which informed consent is more important than others.
The doctrine of "informed consent" within the context of physician-patient relationships goes far back into English common law. As early as 1767, doctors were charged with the tort of "battery" (i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their patients before performing a surgery or procedure (e.g., Slater v. Baker and Stapleton) (Murray, 1990). Within the United States, the seminal case is generally accepted to be that of Schloendorff v. Society of New York Hospital, 211 NY 125 (1914). In that case, involving allegations of unauthorized surgery during an exploratory EXAMINATION, Justice Cardozo's oft-quoted opinion was that "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an ASSAULT, for which he is liable in damages." The court further described the offense as a "trespass" (upon the patient's body and self).
However, requiring that the patient first consented was only half the task. The other half involved the patient's receipt of sufficient information upon which to make a sound decision. Thus, the concept of "informed consent" was developed on the premise of two distinct components: a person's inherent right to determine what happens to his or her body and a doctor's inherent duty to provide a person with enough information so as to ensure that the patient's ultimate decision is based on an appreciable knowledge of his/her condition, the available options for treatment, known risks, prognoses, etc.… (Kaushik et al., 2010). Importantly, this means that the patient does not have a duty to inquire about risks or options; the duty rests with the treating doctor.
From Common Law to Statute
Virtually all states recognize, by express statute or common law, the right to receive information about one's medical condition, the treatment choices, risks associated with the treatments, possible outcomes, and prognoses. Generally, the law requires that medical information be in plain language terms that can readily be understood and in sufficient amounts such that a patient is able to make an "informed" decision about his or her health care. If the patient has received this information (and is otherwise competent to receive the information), any consent to treatment that is given will be presumed to be an "informed consent." A doctor who fails to obtain informed consent for non-emergency treatment may be charged with a civil and/or criminal offense. In 1972, the American Medical Association (AMA, 2012) incorporated the concept of informed consent in its Patient's bill of rights movement, and almost all state versions of patient rights include provisions related to informed consent.
Application of the Doctrine
Typically, an "informed consent" issue arises when a patient suffers an injurious or harmful outcome from a treatment, surgery, or procedure. The harmful or injurious outcome does not appear to be the result of any negligence (Davis, 2002. The patient alleges that he or she was never informed of the possibility of occurrence of the resulting injury or harm. From that point, the causative factor of the harm or injury must be analyzed. If the negative result (injury or harm) was a foreseeable complication or fore-seeable risk, but the possibility of its occurrence had not been communicated to the patient in advance, there may be an actionable case of lack of informed consent.
In order to prevail on a charge that a doctor performed a treatment or procedure without "informed consent," the patient must usually show that, had the patient known of the particular risk, outcome, or alternative treatment allegedly not disclosed, the patient would not have opted for the chosen treatment or procedure and thus, would have avoided the risk. In other words, the patient must show a harmful consequence to the alleged failure to disclose. There are unique applications of the doctrine of informed consent, such as in cases involving medical subjects for research, patients of minority age, mentally incompetent patients, etc.… The basic premises still apply, however, either directly or indirectly through a surrogate decision maker.
Certain injuries or harms may occur inevitably, and even be foreseeable, despite the best of care and the presentation of comprehensive information to the patient regarding options, risks, foreseeable outcomes, and prognoses. In fact, one of the most viable defenses to a charge of "lack of informed consent" is that the resulting harm or injury was a "known risk" and that the patient assumed the risk of its occurrence when the patient consented to the surgery, treatment, or procedure. (This would be true if the patient had been warned of the potential occurrence of the specific harm or injury and chose the surgery, treatment, or procedure anyway.)
Other viable defenses include the unforeseeability of the harm or injury or that its occurrence was so remote that the doctor had no duty to otherwise advise the patient of the possibility of that particular harm or injury. There is no duty to obtain consent in an emergency where attempts to obtain consent would delay vital emergency treatment. Additionally, doctors may withhold information from a patient if, in the doctor's professional judgment, disclosure would be upsetting to the patient or would substantially interfere with effective treatment. This is referred to as "therapeutic privilege."
Finally, a physician may defend that the patient chose not to hear all the information. Some patients do not wish to participate in medical decision-making…