A. Consent in an "emergency".

The law always implies consent for treatment of a child in the event of an emergency. A child's life and health should never be compromised by a delay in an attempt to obtain consent. Parental consent is not needed, it is assumed. When time permits, attempts can and should be made to obtain consent by telephone. The medical record should reflect all attempts, including those that are unsuccessful.

This notion of implied consent in an emergency is an exception to the general consent requirement. Two criteria must be met before it applies. First, the patient must lack competence to make decisions independently. The minor child is deemed incompetent as a matter of law, thus the first criterion is established.

Secondly, an emergency must exist. The definition of emergency has not been determined nor agreed upon by all courts. Clearly an emergency exists when immediate treatment is necessary to preserve a patient's life or to prevent permanent disability. Similarly, immediate treatment to alleviate pain and suffering has been deemed an emergency. When both criteria are met, care may be provided.

Recently, many states have broadened the definition of emergency. Most states have case law or legislation providing a basis for treatment without parental consent when "prompt" treatment is necessary. The harm resulting from an "emergency" may be severe or slight. The physician need not be certain as to the actual eventuality of harm, but only that harm or injury is a reasonable possibility. Thus, the emergency physician has broad discretion in this area. Generally speaking, if the delay for the purpose of obtaining consent could adversely affect the child, the physician should initiate evaluation and management under the emergency exception to the consent requirement.

Check the law in your state. This area of medicine and law has important practical application. A delay in wound closure, delay in initiating treatment for bronchitis or delay in examination for abdominal pain would be adequate criteria for initiating treatment. The minor who presents to the emergency department should be triaged and registered as would any other patient. Don't delay the evaluation waiting for parental consent.

Thus, the emergency physician should be comfortable providing treatment in "emergency" cases. The likelihood of successful litigation against the emergency physician for not obtaining parental consent is remote. In fact, delay in an emergency for the purpose of obtaining parental consent may expose the child to risk of harm, and may be considered negligent.

In addition, there is an overriding obligation under EMTALA to provide a medical screening examination to any patient presenting to the emergency department with a request for evaluation or treatment. Thus, there is a federal obligation to provide an evaluation, even if typical consent cannot be obtained.


B. Other Exceptions to the Consent Requirements.

Today, states recognize that while the general rule of parental consent should apply in cases involving younger children, exceptions may exist for certain categories of older minors. Through case law and legislation, most states have adopted, in addition to the emergency exception to consent of the parent or guardian, one of several additional exceptions.

1. The Emancipated Minor

The law recognizes the "emancipated minor", who, although below statutory age, lives apart from his or her parents, is self-supporting, and is not subject to parental control. Also, a minor is considered emancipated if he/she is married, pregnant, or in the armed forces. The concept has evolved today to include college students, even when parents are completely responsible for paying the bills, and unmarried minor mothers.

The emergency physician may take the representation of the minor at face value, as long as that representation seems reasonable and sincere, and the provider has no reason to believe otherwise. No specific documentation of the minor's emancipation is required. The physician should believe that the information presented by the minor is reasonable.

2. Mature Minors

The mature minor is another exception to the general rules regarding competency of a minor to consent to medical care. There have been no cases reported within the past 30 years in which a parent successfully sued a physician for non-negligent care of an adolescent without the parent's knowledge. In these cases, courts apply what has come to be known as the "mature minor" rule.

The legal principle is that if a young person (age 15 or older) understands the nature and the risks of proposed treatment, the physician believes that the minor patient can make an informed decision, the treatment is for the minor's benefit and the treatment does not involve serious risk, the adolescent may validly consent to receiving it. If these criteria are met, the likelihood of exposure to liability for not obtaining parental consent is remote.

These patients may not fit the criteria for the emancipated minor exception. They may not be independent of their parents, but are cognitively able to understand the risks and benefits of treatment. The age range varies from state to state, between 14 and 18 years of age, and depends upon individual maturity and state statutory requirements.

3. Minor Treatment Statutes

Through the 1960s and 1970s, many states statutorily authorized treatment of minors. These laws are known as minor treatment statutes. The statutes differ from state to state, some providing for the nors right to consent to all medical care, others providing for treatment only with certain medical conditions.

The general statutes provide a specific age, usually 16 years, at which a minor may be considered completely independent for all health care purposes and treatment may be given as if the minor is an adult. All other states without a general consent statute have enacted provisions giving a physician the specific right to treat any minor for venereal disease. Many states have statutes permitting treatment of any minor for drug or alcohol problems, pregnancy, and psychiatric conditions. Most of the venereal disease and alcohol and drug statutes forbid informing parents. In such cases, the parents should not receive a bill for treatment.