A risk manager recently wrote to ECRI Institute seeking guidance on developing policies and procedures for obtaining informed consent from minors. The risk manager notes that, while considerable guidance is available in the literature on obtaining informed consent in adults, less is available regarding children.
In our response, ECRI Institute notes that we always recommend referring to state statute and case law, which can vary significantly. For general reference, the following articles may be helpful:
ECRI Institute is often asked about the application of informed consent in various special circumstances, especially involving minors (including situations in which the child's parents are themselves minors). In these cases, risk managers must remember that an individual under age 18 is not considered legally competent to consent to medical treatment; thus, physicians must obtain the consent of the minor's parent or legal guardian unless a life-threatening emergency exists.
However, statutes in nearly every state have modified this general rule and established criteria or special circumstances (e.g., a minor without support, or a "mature minor") under which a minor is permitted to provide informed consent on his or her own behalf. Risk managers should ensure that their institutions' policies and procedures reflect applicable state and federal laws concerning obtaining the informed consent of minors.
Elements of state statutes to examine in this context include exceptions for emancipation of minors who are married, as well as minors who, as defined by law, are unsupported. The latter provisions may apply to consent for primary care services. Risk managers should consult with legal counsel about these statutes and any interpretations of the statutes that could affect their application to the organization's consent provisions for minors.
With regard to consent for children whose parents are minors, generally, a minor who is a parent is in charge of making decisions regarding the child. Nevertheless, risk managers should consult with legal counsel to investigate whether state statutes or case law have nuances that would apply to healthcare providers and organizations.
In an emergency, a minor parent's responsibility for the child (as described above) would apply. Nevertheless, the "emergency doctrine" is also relevant, as described below:
The "emergency doctrine," an exception to the requirement of obtaining informed consent, exists when immediate medical or surgical intervention is necessary to prevent death or serious harm to a patient. The doctrine is based on the assumption that a rational person in a life-threatening situation would consent to treatment.
If an emergency exists, the emergency doctrine would generally apply, regardless of the parent's age.
Additional information on the emancipation of minors is available from the Legal Information Institute at Cornell. Also, the Guttmacher Institute has prepared a brief report on minors and the right to consent to healthcare. The institute has also prepared a recent summary of state laws addressing minors' rights as parents.
The recommendations contained in Ask ECRI do not constitute legal advice. Facilities should consult legal counsel for specific guidance and develop clinical guidance in consultation with their clinical staff.