Legal ConsiderationsIn Pediatric Emergency

Medicine

DEM Grand Rounds

Julia Hays, MD

April 2014

January 2008

May 31, 2012

Common Legal Problems/Pitfalls

Consent to treat

Emancipated minor

Confidentiality of information

Doctors obligation to treat vs.

parents right to refuse treatment

Discharge issues: can he go home without a legal guardian present?

Protective custody

These cases were all discussed with the emergency department‟s legal counsel, Joy Berent who states:

“Use your common sense and document your good intent and the

court will usually be with you”

The cases discussed all assume emergency care –

that is life-threatening or time sensitive

disease and disorders.

Routine, primary care issues, outpatient surgeries, etc. have a

different set of rules.

CASE 1: 17 year-old presents for a laceration repair

Can we treat without parental consent?

Can we discharge him without a parent?

States he is „Ward of the State‟ but has no

papers

States she is „emancipated‟, and is married

19 year old cousin brought him in

CASE 2: 14 year-old presents with complaint of

vaginal discharge, no parent present.

CASE 3: 16 year-old presents pregnant with

abdominal pain, parent present, child wants

privacy but the parent demands information.

CASE 4: 16 year old presents with signs of

appendicitis. Cannot find parent.

CONSENT

Who has the right to consent to treat?

Legal guardians/parents

Person “in loco parentis”

Emancipated minors

De Facto emancipation

The minor patient(under certain circumstances)

Foster parents / custodians of wards of court

Parents available on phone only

Legal capacity to consent to treat:Parents

Mother or father, step-parent custodial issues not our issue

– unless parent has had parental rights terminated

Legal guardians

Spouses (even if they are minors themselves)

Person “in loco parentis” of a minor People they are living with, taking care of them

People given written consent from parents for temporary rights

Legal capacity to consent to treat:Parents in absentia

If parent is available only on phone:

Telephone consent for treatment and discharge

with reliable person can occur under limited

circumstances.

All attempts at getting parent to E.D. must be tried.

Two – party documentation of phone consent and

of discharge instructions/consent must be done

Legal capacity to consent to treat:Parents in absentia

If parent is unavailable:

For emergency and life-saving treatment

Err on the side of treatment

Consent is presumed by law

Make and document efforts to contact parents or

surrogates

Do what you would want done for your own child.

Legal capacity to consent to treat:Parents in absentia

If parent is unavailable:

For immediate but not life-threatening condition:

Options:

1. Do what you would for your own child, document good

faith efforts to contact parents, discharge with reliable

adult.

2. Contact DSS-CPS (via social work) for temporary

custody and permission to treat.

“Temporary unavailability of parents is not neglect, per se, and needs to be weighted carefully in each such case according to the facts presented and the nature of injury or illness”

Wayne County Juvenile Court

RE: Medical Authorization

Legal capacity to consent to treat:Foster parent or custodian

Treatment centers, juvenile homes, etc. usually

come equipped with papers outlining their right

to seek emergency treatment for the child

Children in custody of the police are considered

emancipated

Legal capacity to consent to treat:The Patient

Minors: Michigan age of majority: 18 At age 17 yrs 6 months can legally sign for

themselves

“No court will even look at a case with a 17 year old”

Emancipated minors

De Facto emancipation

Emancipated Minors

Three criteria make minors “emancipated” Marriage

Active duty in the armed forces

In custody of law enforcement

May have a State ID or papers declaring emancipation – usually not

Interesting/strange: A minor mother of a child can consent to her child‟s treatment; but unless married, cannot consent to her own.

De Facto Emancipation

Take home point:

Ask questions, see if story is reasonable,

Attempt to contact parent and/or document.

Use your common sense. Doing what you think any reasonable parent would want done for their child is regarded highly in court.

Conditions where minors can consent for themselves

Birth control NOT ABORTION (requires parental consent or

judicial waiver in Michigan)

Treatment of sexually transmitted diseases Reportable (3200) if present in age 11 yrs or less

Prenatal care

Behavioral health & chemical dependency Limited period if age 14 years or older

Parental consent needed for inpatient stay or for prescribing psychotropic drugs

CONSENT does not equal

CONFIDENTIALITY

Public Health Code (Excerpt)Act 368 of 1978

333.9132 Consent of minor to provision of health care; notice; permission to contact parents for additional medical information; giving or withholding information without consent of minor.

“…health professional may, but is not obligated to, inform the putative father…..spouse, parent, guardian…..as to the health care given or needed.”

“ before providing health care…shall inform the minor that (these persons) may be notified”

Consent Confidentiality

Parents have the right to access their child‟s medical record at any time for any diagnosis.

Physician discretion is allowed as to whether to tell the parent or not – we are not required or obligated to tell, but we are not prohibited either.

CONFIDENTIALITY

Confidentiality of minors

HIPAA rules apply

Parents are always allowed access to their children‟s information unless child is emancipated and/or reached majority age

DISCHARGE OF PATIENT

To whom can we discharge a minor home?

If they are allowed to consent for treatment, they are allowed to sign for discharge home.

Use your common sense:

try to contact parents, document efforts

If they came in with a seemingly reliable person, have that person take responsibility and sign

Again, “double phone consent” works well

Appropriate documentation

RIGHT TO REFUSE TREATMENT

The issue here is when does our obligation to treat outweigh a parents right to refuse treatment for their child.

At what point can they sue us for wrongful treatment of their child?

CASE 5: 12 year old with Crohn‟s disease and anemia requiring transfusion:

Parents refuse transfusion, willing to admit to

the hospital.

Parents refuse transfusion, try to walk out with

the ill child.

Parents are Jehovah‟s witnesses and refuse

transfusion on religious basis

CASE 6: 6 week old requiring sepsis workup including lumbar puncture:

Parents refuse L.P, willing to admit to the

hospital

Parents refuse LP, try to walk out with ill child

Same scenario, parents are disruptive to care,

can they be required to leave?

CASE 7: Critically ill child (Requiring intubation, life-saving antibiotics,

pressors or aggressive fluid therapy to survive )

Parents want to take child from the emergency

department:

How far can we go to keep the child safe for

treatment?

Can we have security escort the parents from the

child?

Do we file a 3200 for such endangerment of a

child?

Critically ill child – no brainer

Doctors should ere on the side of treatment whenever there is risk of death or permanent damage to the child with inaction.

This can include escorting parents out of room (if they are disruptive to care)

Can include life-saving procedures against the parents will.

Be sure you are acting in good faith to do what is best for the child, and that your actions make a REAL, SIGNIFICANT difference in their ability to survive.

But before you get there….. Use all means possible to convince parents of

the necessity of your medicines, procedures, treatments.

If you are having trouble communicating or feeling angry yourself, bring in a colleague to intercede (another physician “2nd opinion”; social work or patient advocate) or enlist the help of family members who may have calmer demeanors.

Present other safe options for the child.

Maybe you„re focusing on the wrong thing.

When do you involve the court?

“ If you have time to get a court order, perhaps it isn‟t such an emergency after all.”

Certain areas are prepackaged and easy:

Call legal and get permission to give blood transfusion to a child of a Jehovah‟s witness.

Get social work and DSS involved if you are suspicious of child abuse or neglect.

If you involve the court, be prepared and clear in your thinking…..

When a non-Court ward requires medical care and the parents refuse treatment……the Court considers:

The nature of injury or illness (diagnosis)

The need for and type of treatment prescribed

How soon treatment must be administered

What are the risks of survival or permanent damage with delay of treatment?

What are the risks of survival or permanent damage with the treatment?

What are the circumstances why the parents are refusing treatment?

Henry Ford‟s Policy

“Parent(s) or Legal Guardian‟s Refusal to Consent to Care for Minor Patients”

Such refusal should be honored, however, if there would be adverse or severe consequences, it may be advisable to contact …….legal or social work for assistance.

Try everything you can to get the parents on board, even with a partial but relatively safe option, document all discussions

But from a practical standpoint:

“No judge will go against you if you are truly trying to do what is best for the child”

“Good faith efforts with the safety, health, and comfort of the child being foremost in your consideration is looked at favorably in court”

“Very few of these cases go to court, if communication with the parents is adequate”

CASE 1: 17 year-old presents for a laceration repair

Can we treat without parental consent?

Can we discharge him without a parent?

States he is „Ward of the State‟ but has no

papers

States she is „emancipated‟, and is married

19 year old cousin brought him in

CASE 2: 14 year-old presents with complaint of

vaginal discharge, no parent present.

CASE 3: 16 year-old presents pregnant with

abdominal pain, parent present, child wants

privacy but the parent demands information.

CASE 4: 16 year old presents with signs of

appendicitis. Cannot find parent.

CASE 5: 12 year old with Crohn‟s disease and anemia requiring transfusion:

Parents refuse transfusion, willing to admit to

the hospital.

Parents refuse transfusion, try to walk out with

the ill child.

Parents are Jehovah‟s witnesses and refuse

transfusion on religious basis

CASE 6: 6 week old requiring sepsis workup including lumbar puncture:

Parents refuse L.P, willing to admit to the

hospital

Parents refuse LP, try to walk out with ill child

Same scenario, parents are disruptive to care,

can they be required to leave?

CASE 7: Critically ill child(Requiring intubation, life-saving antibiotics,

pressors or aggressive fluid therapy to survive )

Parents want to take child from the emergency

department:

How far can we go to keep the child safe for

treatment?

Can we have security escort the parents from the

child?

Do we file a 3200 for such endangerment of a

child?