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Informed Consent and the Minor

Kenneth I. Kolpan, JD (Editor)

Every patient has the constitutional right, based on the rights of privacy and self-determination, to decide what medical treatment he or she will receive. This is no less true for minor children who have received a traumatic brain injury. The only difference is the mechanism by which their constitutional right is exercised, i.e., the legal authority for a person to act the minor's stead.  

We start with the basic premise that a child's parents are his or her natural guardians with authority to consent to medical treatment. Problems arise when parents are divorced, and medical facilities are unaware of which parent has the legal authority to give permission regarding medical treatment. The issue of joint custody complicates the issue for health care providers as well. Generally speaking, the parent with legal, not physical, custody, is empowered to give consent.

Issues can arise between the child's parents and the health facility where parents, perhaps for religious reasons, refuse to consent to a minor patient's needed treatment (e.g, blood transfusion, chemotherapy, surgery).  Under these scenarios, the facility may petition the family court for an order allowing the facility to proceed with the recommended treatment notwithstanding parents' objections.  If the court sides with the treater(s), they can proceed with impunity from liability, though families have challenged the court's decisions in this area.  

Another problem health care facilities face is when a medical emergency, such as a rise in intracranial pressure, occurs in a minor child with a traumatic brain injury, and no parent can be found to consent to the treatment. Without consent, a health care provider risks liability for treating without authorization, i.e., for battery. But if a true medical emergency exists, the legal doctrine of "implied consent" controls the situation. This doctrine states that an individual implicitly gives consent to emergency treatment that would save his or her life or limb. Some states even require that emergency treatment be given by a physician without consent, and provide legal protection for such emergency treatment rendered in good faith. Therefore, when a true emergency exists, health care facilities have the implied consent of a minor child with a head injury to render the necessary emergency treatment.  However, it can become complicated if there are religious objections to treating the minor child, despite the emergency.  Hospitals may have to contact an on-call Judge to obtain legal permission to proceed.

Informed consent for minor children with head or traumatic brain injuries becomes problematic when the minor child turns 18 years old while a patient at a facility. At that age, he or she is considered an adult and, for purposes of medical treatment, is presumed competent to give consent. Nevertheless, in circumstances in which a young head-injured patient over 18 years is incapable by reason of his or her mental disability to provide consent, a guardian should be appointed. The Court may also appoint a Guardian Ad Litem (GAL) to investigate the matter and report to the Court, and advocate on behalf of the minor.

The parents of the head-injured child are not automatically the legal authorized representative. The parents or other designee must go to court, where it will be determined whether the young head-injured patient is incompetent and whether the parents or other designee are appropriate as guardians. Only then will they be given specific legal authority to consent to the proposed medical treatment. The latter point is significant because minor children with head injuries often have their parents serve as guardians because of personal injury lawsuits, but this "guardianship" is not necessarily valid for consenting to medical treatment once the patient reaches 18 years. A separate court proceeding regarding guardianship must be held. Once the guardian has appointed with authority to consent to medical treatment, it is important that the patient's representative follow the jurisdiction criteria for deciding whether consent should be given for the proposed treatment.  Some jurisdictions use the substituted judgment principle where the guardian is effectuating the patient's wishes, while other jurisdictions may invoke the best interests of the incompetent, regardless of his wishes.

Courts do not necessarily appoint a guardian with authority to act on behalf of the incompetent individual in matters involving treatment, especially mental health treatment including medication.

Guardianship questions may arise when the minor's parents refuse needed treatment including surgeries, transfusions, vaccinations on religious or other grounds.  Some Boston hospitals devoted to pediatric treatment may seek court orders to provide treatment when the hospital (staff) determines treatment is in the best interests of the minor patient.  A court will ultimately determine what is in the patient's best interest or utilize the substituted judgment principle in issuing its order concerning treatment and the rights of a child with a traumatic brain injury.

Persons who treat pediatric head injuries must be cognizant of the surrounding legal issues so that they can give appropriate treatment without risking any legal liability, including when exigent circumstances may allow a hospital to proceed without parent's consent.