A. The Child Refuses Care

Unless a minor is emancipated, a "mature minor", or has one of the special conditions covered by the treatment statutes, he or she is not cognitively or legally capable of giving or refusing consent for medical treatment. The 8 year old refusing a laceration repair is typically not a problem. Both the parents and physician agree on treatment, and the child is overruled.

Problems typically arise when the adolescent refuses care. This often presents a significant dilemma for the emergency physician. For example, a mother presents to the ED with her 16-year-old daughter. Mother states that she believes the child has had sexual intercourse, and mom asks the physician to perform a pelvic exam. The 16-year-old adamantly refuses examination.

The case clearly presents an ethical and legal dilemma. Arguably, the refusal of care should be respected. The 16-year-old is probably old enough to understand her actions. She certainly understands the nature and purpose of the examination. State law supports the minor when presenting for STDs and pregnancy. States are increasingly recognizing the minors right to privacy. The emergency physician should evaluate and document the patient's developmental state and maturity. The child's refusal should be accepted under either the mature minor exception or may be covered under one of the specific treatment statutes with regard to pregnancy or STDs.

Although the prior scenario seems relatively straightforward and low risk, these cases can be complex and there are many grey areas. For example, a fifteen-year-old male with leukemia refuses a blood transfusion; a seventeen-year-old female with vaginal bleeding and lower abdominal pain decides to leave AMA prior to evaluation for ectopic pregnancy. These are difficult issues, and you should not attempt to go it alone. Request assistance from hospital administration or hospital counsel.

B. Parent refuses medical care for the child.

Generally, state and federal courts support parental control over the basic matters affecting their children. However, when parental actions have resulted in inadequate medical care, courts in the United States have stepped in to decide between parent wishes and physician concerns. Under the doctrine of "parens patriae" (the state's paternalistic interest in children) the state will not allow a child's health to be seriously jeopardized because of the parent's limitations or convictions. A parent does not have the authority to forbid saving their child's life. Courts invariably rule in favor of a physician who claims that a parent is denying standard medical care to a child.

Under the doctrine of parens patriae, the state represents the best interests of the child. The state also looks to the child abuse and neglect statutes, which provide for protective custody when the child has not received medically indicated treatment.

Once again, the emergency physician is empowered by understanding the law. If parents withhold consent, and there is a life threat, the emergency physician should take temporary protective custody based on child neglect. It helps to explain to the parents that this is a medical obligation under the law, and you will immediately report to the hospital administrator, hospital attorney and the local child protection agency. The parents will typically stand down and allow you to proceed with your mission. Even in situations where the minor's life may not be threatened but severely impaired, the courts usually will order medical treatment over the parent’s objections.

If there is no life threat, and no potential for serious impairment, the parent’s refusal should be respected. The refusal should be "informed" and well documented. In this context, "informed" means that one or both parents have a normal mental status, understands the risks of refusal, have had an opportunity to ask questions and have decided to leave against your advice.

Remember that you are protected from civil and criminal liability under the child abuse and neglect statutes. You may be hesitant to take custody, but it should not be for fear of liability.

C. Parental refusal based on claims of religious freedom.

The first amendment issue of religious freedom does not change the analysis. The typical example is the 14-year-old male, victim of a car accident with a lacerated spleen. He is shocky and needs blood. The emergency physician has typed and crossed, and contacted the surgeon to go to the OR. The parents intercede and refuse to consent to the blood administration.

The courts have held that denying medical care to a child is not within the parents' First Amendment right of freedom of religion: "The right to practice religion freely does not include the liberty to expose... a child... to ill health or death. Parents may be free to become martyrs themselves. But it does not follow that they are free ... to make martyrs of their children..."

The emergency physician should take temporary protective custody, provide care in such cases, and report to the appropriate individuals and agencies.

In more difficult cases, such as the management of the terminally ill, there are many ethical and legal uncertainties. In the previous car accident case, clearly blood administration is in the "best interest" of the child. But in other cases, such as a minor with leukemia and a life-threatening anemia, the "best interest" analysis is far more difficult. Here the emergency physician must discuss the case with the family physician and may need to temporize until reasoned judgment from a larger group of decision makers can be brought to bear.