Legal issues relating to the care and treatment of minors

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.

Background

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.

Informed Consent

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.

Defenses

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 and simply defer to the physician's best judgment. Under such circumstances, doctors generally have patients sign waivers giving up their rights to full disclosures. If the patient had prior knowledge of the risks (having undergone the surgery or procedure previously), or if the risks are common knowledge (such as pain following suturing a wound), there is generally no duty to repeat or expressly inform of these risks.

Measuring the Duty to Inform

The professional standard (for judging the scope of a doctor's duty to disclose) is alternately referred to as the community standard, the professional community standard, or the reasonable physician standard (Davis, 2002). It generally asks what would a reasonably prudent physician with the same background, training, experience, and practicing in the same community, have disclosed to a patient in the same or similar situation? This standard is the same as that applied to other forms of alleged medical malpractice. A significant number of states have employed the use of a standard commonly referred to as the materiality standard. It is alternately referred to as the reasonable patient standard, or the prudent patient standard. It purports to ask what would a reasonable patient in the same or similar situation need to know in order to make an appropriate decision regarding a proposed surgery, treatment, or procedure? In other words, what information would be material to the patient's decision? Still other jurisdictions have developed a subjective patient standard which asks what that particular patient, in his or her own unique set of circumstances and conditions, would need to know, but this has proven to be a hard standard to establish.

State Law Provisions Regarding Disclosure Requirements

States are divided in their approach as to how much information a doctor must disclose to a patient in order to facilitate an "informed consent" to the proposed surgery, treatment, or procedure (U.S. Legal, 2010):

ALASKA: Alaska has adopted a reasonable patient (materiality) standard (Alaska Stat. Ann. 09.55.556(a) but articulates four specific defenses that may be raised on the part of the physician.

ARKANSAS: Arkansas Stat. Ann. 16-114-206(b) provides that "the plaintiff shall have the burden of proving... that the medical care provider did not supply that type of information regarding the treatment, procedure, or surgery as would customarily have been given to a patient... By other medical care providers with similar training and experience."

CALIFORNIA: California generally applies the professional community standard, as developed by CASE LAW. Cobbs v. Grant, 8 Cal 3d 229 (1972).

DELAWARE: Delaware applies the professional community standard. Del. Code Ann. Title 18-6852.

FLORIDA: Florida Statute Section 766.103 expressly adopts the professional community standard, providing that actions are barred if "the action of the [physician] in obtaining the consent of the patient... was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community."

GEORGIA: Georgia Code Ann. 31-9-6.1 follows a professional community standard but requires that the harm caused from the alleged failures to disclose be associated with "the material risks generally recognized and accepted by the reasonably prudent physician."

HAWAII: Hawaii Rev. Stat. 671-3(a) establishes a board of medical examiners to develop standards ensuring that a "patient's consent to treatment is an informed consent." It further provides that the standards may be ADMISSIBLE in court as evidence of the standard of care required of health care providers.

IDAHO: Idaho Code Section 39-4301 et seq., specifically 39-4304, expressly adopts the objective professional community standard.

ILLINOIS: The state of Illinois has adopted the objective professional community standard (Ill. Ann. Stat. Chapter 110, 2-622) and requires that the alleged breach of duty be reviewed and substantiated by a physician reviewing the case (medical expert) before filing a complaint.

INDIANA: Indiana Code Ann. 16-9.5.1 adopts a reasonably prudent patient or "materiality" standard, requiring a disclosure of "material risks."

IOWA: Iowa Code Ann. 147.137 follows an objective professional community standard and further requires that the information disclosed include a detailed list of potential outcomes.

KENTUCKY: Kentucky Revised Statutes (KRS) 304.40-320 adopts the objective professional community standard.

LOUISIANA: Louisiana Rev. Stat. Title 40, Section 1299.40, and 1299.50 (Louisiana Medical Consent Law) raise a presumption of informed consent if information is provided in writing and sets forth certain factors (consistent with general requirements of informed consent).

MAINE: Maine Rev. Stats. Ann., Title 24-2905 adopts the professional community standard.

Massachusetts: Massachusetts recognizes IMPLIED CONSENT as developed by case law. It generally follows the "materiality" standard, i.e., a doctor must disclose that information which the doctor should reasonably recognize as material to the patient's decision. Halley v. Birbiglia, 458 N.E.2d 710 (1983).

MICHIGAN: Michigan recognizes implied consent as developed by case law. It generally applies the professional standard. Michigan also treats, as an ASSAULT AND BATTERY, any physical contact with a patient that exceeds the scope of the granted consent. Patient consent may be expressed or implied. Werth v. Taylor, 190 Mich App 141 (1991).

MISSOURI: Missouri recognizes implied consent as developed by case law. It generally follows the professional standard, i.e., that of a reasonably prudent provider (of medical care or treatment) in the medical community. Baltzell v. VanBuskirk, 752 S.W.2d 902 (Mo. App. 1988).

NEBRASKA: Nebraska Revised Statutes, Section 44-2816 adopts the objective professional community standard.

NEW HAMPSHIRE: N.H. Rev. Stat. Ann. 507-C:2 adopts the objective professional community standard.

NEW YORK: NY Public Health Laws, Section 2805-d, applies the professional community standard and specifically provides that "[l]ack of informed consent means the failure... To disclose to the patient such alternatives... And the reasonably foreseeable risks and benefits involved as a reasonable medical... practitioner under similar circumstances."

NORTH CAROLINA: North Carolina General Statute 90-21.13(a)(3) applies an objective professional community standard to a physician's duty to inform.

OHIO: The Ohio Revised Code, Section 2317.54 adopts a reasonably prudent patient or materiality standard, expressly requiring the disclosure of "reasonably known risks."

OREGON: Oregon Rev. Stat. 677.097 adopts the reasonably prudent patient or materiality standard and requires a disclosure "in substantial detail."

PENNSYLVANIA: Pa. Stat. Ann. Title 40-1301.103 adopts the "materiality" standard.

TENNESSEE: Tennessee has adopted an objective professional community standard. Tenn. Code. Ann. 29-26-118.

TEXAS: Texas Code Ann. Article 4590i-6.02 adopts the "materiality" standard. Texas law has created the Texas Medical Disclosure Panel, comprised of three attorneys and six physicians, to establish "the degree of disclosure required and the form in which the disclosure will be made."

UTAH: Utah Code Ann. 78-14-5(f) follows an objective reasonably prudent patient standard, i.e., "reasonably prudent person in the patient's position."

VERMONT: Vermont Stat. Ann. Title 12-1909 adopts the objective professional community standard, requiring that the information disclosed be provided in a manner that allows a reasonably prudent patient to "make a knowledgeable evaluation."

WASHINGTON: Washington has adopted the reasonably prudent patient or "materiality" standard under Wash Rev. Code Ann. 7.70.050.

WEST VIRGINIA: West Virginia has abrogated the professional community standard and adopted a materiality standard. W. Va. Stat 55-7B-3

General Consent

In general, for most medical procedures, the parent or legal guardian of the minor still has to grant consent in order for the procedure to be performed. While the state can challenge a parent's decision to refuse medically necessary treatment and can in some cases win the authority to make medical decisions on behalf of the child, the minor can not make his or her own medical decisions. This general rule is virtually always the case regarding any sort of medical treatment before the minor enters their teenage year so state or court has ever authorized minors younger than 12 to make any sort of medical decision for themselves. However, after the minor becomes a teenager, states begin to digress in terms of the responsibility the minor can take for medical decisions. Exceptions have been carved out for various medical procedures that allow teenage minors to have final say in their medical care.

Family Planning

Twenty-five states and the District of Columbia have laws that explicitly give minors the authority to consent to contraceptive services, and twenty-seven states and the District of Columbia specifically allow pregnant minors to the obtain prenatal care and delivery services without parental consent or notification (Elsevier, 2003). The Title X federal family planning program, which supports clinics that provide contraceptive service and other reproductive health care to minors on a confidential basis and without the need for parental consent or notification, has seen efforts made by Congress to require consent or notification before a minor receives these services. All of these efforts, the most recent in 1998, have failed.

Probably the most controversial area of family planning and minors is abortion. Two states Connecticut and Maine, as well as the District of Columbia have laws that give minors the right to obtain abortions on their own. In contrast, 31 states currently have laws restricting minors' rights to obtain abortions by either requiring them to obtain the permission of one or both parents, or to notify one or both of them of the procedure. The rest of the states either have no laws regarding parental consent and notification and abortion or laws that are currently blocked from going into effect by the courts of the state.

The family planning area and its relation to minors has been a difficult one for the states to tackle because of several Supreme Court rulings that have ruled that minors do have a limited right of privacy in respect to family planning issues (Boonstra and Nash, 2000). The Court has ruled that if states are going to restrict the right of minors to have an abortion, they have to provide an alternative to the requirement of parental consent, to allow the minor to show she is mature enough to make the decision of having an abortion herself. This alternative is generally in the form of a judicial bypass permitting a court to make the decision regarding whether the minor can get an abortion. Maryland allows a "physician bypass" that permits a doctor to waive parental notice if the minor is capable of giving informed consent or if notice would lead to abuse of the minor.

States that require consent before a minor may have an abortion include Alabama, Indiana, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, Missouri, North Carolina, North Dakota, Pennsylvania, Rhode Island, South Carolina, Tennessee, Wisconsin, and Wyoming. States requiring notification before a minor's abortion include Arkansas, Delaware, Georgia, Idaho, Iowa, Kansas, Maryland, Minnesota, Nebraska, Ohio, South Dakota, Texas, Utah, Virginia and West Virginia. Additionally, because the Supreme Court rulings, states that do not explicitly allow minors to obtain contraceptive and prenatal care services without parental consent still must permit this to happen in practice, as the court has ruled that these are services that are covered by the minors' right to privacy. However, states can still impose limitations on minors' ability to obtain these services, based on factors such as age, marriage status, medical condition, or who referred the minors for treatment. In addition, two states Utah and Texas prohibit the use of state funds to provide contraceptive services to minors without parental consent.

Emergency

All states allow parental consent for treatment of a minor to be waived in the event of a medical emergency (Kuther, 2003). The circumstances that should be present in order for such an emergency include the patient being incapacitated to the point of being unable to give an informed choice, the circumstances are life-threatening or serious enough that immediate treatment is required, and it would be impossible or imprudent to try to get consent from someone regarding the patient. In these cases, consent of the parent is presumed, since otherwise the minor would suffer avoidable injury.

Sexual Abuse

Most states allow minors to seek treatment for sexual abuse or assault without parental consent; however, many states require the minor's parents or guardian to be notified of the sexual abuse unless the physician has reason to believe the parent or guardian was responsible for the sexual abuse (Schlam & Wood, 2000).

Mental Health and Substance Abuse

Twenty states and the District of Columbia give minors the explicit authority to consent to outpatient mental health services (Schlam & Wood, 2000). No state specifically requires parental consent to obtain these services, but many states do impose age requirements or other restrictions in regards to minors who obtain these services. Forty-four states and the District of Columbia have laws or policies authorizing a minor who abuses drug or alcohol to consent to outpatient counseling without a parent's consent. Again, no states require parental consent for these services, but some restrictions may be imposed on which minors can obtain this counseling.