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Consent for Treatment by Minors

Added by Hawley Troxell in Articles & Publications, Health Law on November 20, 2011

Treatment of a minor without proper consent may expose the practitioner to tort liability for battery or lack of informed consent in addition to limiting the practitioner’s ability to collect for the care. The following sets forth suggestions for analyzing minor consent issues.

The General Rule. In Idaho, persons under age 18 generally lack legal capacity to consent to their own health care, and therefore, consent must be obtained from one of the following persons in decreasing order of priority: (1) the legal guardian appointed by the court; (2) a parent; (3) a relative who represents themselves to be an appropriate person to act under the circumstances; (4) any other competent person who represents themselves to be responsible for the health care of the minor; or (5) the attending physician if it is an emergency and there is not time to contact one of the foregoing, or one of the foregoing is not available. (See Idaho Code § 39-4503).

Maybe if the minor is mature enough to understand and appreciate the consequences of their decision under Idaho Code § 39-4502. Idaho Code § 39-4502 states that “[a]ny person of ordinary intelligence and awareness sufficient for him or her to generally comprehend the need for, the nature of and the significant risks ordinarily inherent in, any contemplated [medical] care” may consent to their own care. (Emphasis added). There are no reported Idaho cases applying § 39-4502 to minors or otherwise adopting the so-called “mature minor” doctrine. Although we believe the better view is that § 39-4502 applies to minors and codifies the “mature minor” doctrine, a court may disagree given that § 39-4502(1) lists persons who may consent for minors. Accordingly, conservative health care professionals may decide to require parental consent in the case of minors. If health care professionals rely on § 39-4502 and the “mature minor” doctrine to allow minors to consent to their own care, they are doing so at their own risk. At the very least, they should carefully consider and document appropriate factors relevant to their decision, including, (1) the age of the minor (e.g., the decision is more easily justified if the minor is close to age 18); (2) the maturity and intelligence of the minor; and (3) the nature of the treatment (e.g., minors may be able to consent to less serious care, but may lack maturity to make major decisions).

Additional Considerations. The decision to allow minors to consent to their own health care may have unexpected side effects. In such cases, for example, HIPAA may preclude practitioners from disclosing information to parents without the minors’ consent or, at the very least, without giving the patient the chance to object to such disclosure. (See 45 C.F.R. §§ 164.504(g) and 164.510). This may also make it more difficult to collect for the care rendered to the patient (especially if the care is not necessary) because minors generally lack the capacity to enter binding contracts.

Conclusion. In most cases, health care practitioners should require parental consent before treating minors. In exceptional cases where they choose to rely on the minor’s consent, practitioners should (1) ensure they have a valid basis for an exception; (2) document the facts that justify the exception; and (3) consider the unintended effects of their decision, including the increased limits on their ability to communicate with or collect from the parents and guardians.

Exceptions. There are exceptions to the general rule. Minors may consent to their own care in the following situations:

1. If the minor is emancipated. Although there are no statutes or reported cases specific to consent for medical treatment in Idaho, we believe that minors will be deemed emancipated under Idaho law and authorized to consent to their own care if: (1) a court has entered an order that declares the minor to be emancipated; (2) the minor is married or has been married; (3) the minor has rejected the parent-child relationship, is living on their own, and is self-supporting; or (4) the minor is serving in the armed forces. Contrary to common belief, pregnancy and/or parenthood alone do not appear to be emancipating events under Idaho law.

2. If a statute grants the minor authority to consent for their own care. Certain statutes allow minors to consent to their own care or otherwise protect practitioners who treat minors. For example, (1) minors age 14 may consent to their own treatment for certain infectious or communicable disease (I.C. § 39-3801); (2) minors age 14 may consent to their own hospitalization for certain mental health care (I.C. § 66-318); (3) minors age 16 may consent to their own treatment for drug abuse (I.C. § 37 3102); (4) physicians and certain other licensed practitioners may provide examinations, prescriptions, devices and informational materials regarding contraception if the physician deems the patient to have sufficient intelligence and maturity to understand the nature and significance of the treatment (I.C. § 18- 604); and (5) according to Interpretive Guidelines issued by CMS, EMTALA allows minors to consent to their own emergency medical screening examination and, if an emergency condition is detected, stabilizing treatment by hospitals.

If you have questions about these or other legal issues, please contact a member of our Health Law group call 208.344.6000.