When Does a Minor Have Informed Consent?

¶ … Consent

The New York Civil Liberties Union reports that a minor who is "emotionally and intellectually mature enough to give informed consent" and who lives in the house of his parents or guardians (under their supervision) is a "mature minor" (Feierman). The NYCLU information documents assert that New York medical ethics would (and presumably does) treat a mature minor "upon her informed consent." However in Ohio and other states a minor may not consent to medical care without parental consent, except in certain situations. In Ohio there is the "emergency care doctrine," which states that if there is a severe condition the doctor (or nurse in a hospital) "…may not need anybody's consent to begin treatment" (ALCU of Ohio, 2014).

The informed consent must be received in writing prior to a minor being administered medications. According to the Tennessee Department of Mental Health and Substance Abuse Services, for children in custody (the 16-year-old boy John was in custody but escaped, so technically he is still a detainee) the supervisors must have all information regarding treatments, risks, health issues (www.tn.gov). So the doctor or other healthcare worker should obtain information in "sufficient detail to be able to make an informed decision regarding consent," and also, when the child is not in custody, parents in Tennessee have the decision-making power over their minor children.

In the Journal of Medical Ethics an article states that clinicians should be knowledgeable as to who is able to give consent so those clinicians are informed before any situation may arise that would require a decision regarding informed consent. In fact on a natural level, it is the general rule that "Consent must be obtained before starting treatment or investigation, or providing personal care for a patient" (Fisher-Jeffes, Lisa, 2007). Doctors should to the extra mile to learn as much as possible about patients' "individual needs and priorities" and should "enter a dialogue with them about treatment" (Fisher-Jeffes, p. 2). The child's parents should be contacted if there is any doubt as to the child's ability or right to give his or her own informed consent.

In Ohio, by law, before any patient agrees to any procedure in a healthcare setting these issues must be clearly explained: a) why this procedure is necessary; b) The purpose and the nature of the procedure; c) the benefits but also the risks of the procedure; and d) any possible alternatives to the procure must be presented (ACLU of Ohio). Patients must also be informed as to the cost of the procedure and any follow-up care that might be needed following the procedure, and part of the reason the "emergency care doctrine" is on the law books in Ohio is that if a minor condition is very severe, a doctor does not need "anybody's consent to begin treatment" (ACLU of Ohio).

The Ohio rules on healthcare for children are also in line with the federal legislation that has been passed in this regard, the Health Insurance Privacy and Accountability Act (HIPAA) (ACLU of Ohio). HIPAA does not impact a minor's ability to consent but it does protect that minor's electronic medical records from his or her parents from accessing them online.

Did John provide informed consent?

It appears that John did provide informed consent but the information doesn't state that specifically. John claims he was involved in a methadone treatment program, but it would seem important for the doctor to have verified that fact before giving John a shot with 40 milligrams of methadone. We really don't know if he gave permission but we know he did give the phone number and names of his parents, and certainly a competent physician would take the time to phone the parents to check on John's story. The scenario presented also did not indicate how seriously John had been injured; hence, why suddenly inject 40 milligrams of Methadone into his body? Research shows that many addicts who are on Methadone take up to 30 milligrams a day, depending on their situation, but giving John 40 milligrams seems a bit extreme. Also, the doctor could have taken a swap from John's mouth and determined what drugs he was on. The bottom line is from the information provided John refused to get the blood he needed and lied about the Methadone (he had in fact been drinking and taking Librium); but the doctor must have assumed John gave informed consent when John told the doctor that he was in a Methadone program. This could be used in a court case on behalf of the doctor, although it's pretty shaky grounds to justify what the doctor did.

What must the parents prove in their malpractice suit?

The Louisiana Law Review describes the "Doctrine of Lack of Consent or Battery Concept in Medical Malpractice Jurisprudence" in a 1984 article. The article states that when a patient is in an emergency situation and cannot give consent, a doctor must proceed to save that patient's life (Boland, 1984). In this case John told the doctor that he was on Methadone so we know John was capable of talking.