Garan Lucow -- Medical Liability Letter issue 4

Medical Liability Letter

Issue No. 4 -- June 1996

Consent to Treatment for Minors

Hospitals frequently encounter situations in which medical treatment is requested for a minor where parental consent is impossible or impractical to obtain. We recently had an opportunity to analyze the general rule applicable to consent to treatment for minors and the several exceptions to the general rule. The rules governing the exceptions can be complex, particularly in the highly sensitive areas of sexually-transmitted diseases, contraception and abortion. We felt that it was appropriate to share these conclusions with all of the hospitals that we work with in Northern Michigan.

1. The general rule

Generally, a minor does not have the legal capacity to enter into a contract. His parents or legal guardian have the sole authority to act on his behalf while he is a minor. This extends to consent in a medical context, which may be considered a type of contract. As with all legal rules, the law provides recognized exceptions.

The common law recognizes an emergency exception to the general rule requiring patient consent. Any patient, adult or minor, may be treated without advance consent in the case of a bona fide medical emergency. This is not established by statute, but is rather a principle of common (judge-made) law.

2. Emancipation

The legal concept of "emancipation" invests a person under age 18 with the full right to act as if he or she were an adult. An emancipated minor has the right to authorize his or her own preventative health care, medical care, dental care, and mental care without parental knowledge. MCL 722.4e; MSA 25.244(4e). Pursuant to the provisions of MCL 722.4; MSA 25.244(4), emancipation occurs by operation of law (or automatically) under the following circumstances:

When the minor is validly married.
When the minor reaches 18 years of age (i.e., is no longer a minor).
When the minor is on active duty within the armed forces of the United States.
By order of a probate court.

The statute then makes the following additional provisions:

A minor can consent to routine, non-surgical medical care or emergency medical treatment when the minor is in the custody of a law enforcement agency and the minor's parent or guardian cannot be promptly located. This temporary and partial "emancipation" ends upon the termination of the medical treatment or upon the minor's release from custody, whichever comes first.
A minor can consent to his or her own preventative health care or medical care including surgery, dental care, or medical care, except vasectomies or any procedure related to reproduction, during the period of time he is a prisoner under the jurisdiction of the Michigan Department of Corrections or a probationer residing in a special alternative incarceration unit. Again, the minor can only consent if a parent or guardian of the minor cannot be promptly located by the Department of Corrections.

3. Substance abuse

MCL 333.6121; MSA 14.15(6121) permits a minor who is or professes to be a substance abuser to consent to substance abuse related medical or surgical care, treatment or services by a hospital, clinic or other health care professional. The statute also provides that a treating physician may notify the minor's parents of the treatment needed or given, if there are medical reasons for making the disclosure, but is not required to do so.

4. Venereal disease/HIV

A minor may consent to medical or surgical care, treatment or services by a hospital or physician if he is or may be infected with venereal disease or HIV. MCL 333.5127; MSA 14.15(5127).

5. Pregnancy and child care

A minor who is pregnant or who is a parent may consent to prenatal and pregnancy related health care or for the provision of health care for his or her child. MCL 333.9132; MSA 14.15(9132). Before providing health care to the minor, a health care facility or health care professional is required to inform the minor that the putative father of the infant or the minor's spouse, parent or guardian may be notified. Pursuant to the statute, a treating physician may, but is not obligated to, inform the putative father of the child or the spouse, parent or guardian of the child as to the health care given or needed. The information may be given or withheld from those persons without the consent of the minor and nonwithstanding the express refusal of the minor to the providing of the information. Health care as defined in that statutory section means treatment and services intended to maintain the life and improve the health of both the minor and the minor's child or fetus.

6. Mental health services

A minor who is 14 years of age or older may request and receive mental health services and a mental health professional may provide mental health services, on an outpatient basis (excluding pregnancy termination referral services and the use of chemotherapy) without the consent of the minor's parent or guardian. MCL 330.1707; MSA 14.800 (707). A parent or guardian may not be informed of the services without the consent of the minor unless the mental health professional determines that there is a compelling need for disclosure based upon a substantial probability of harm to the minor or to others and if the minor is notified of the mental health professional's intent to inform the minor's parents or guardian.

This statute is the only one which imposes a time restriction. Services provided to a minor pursuant to this section are limited to not more than 12 sessions or four months per request for services. After the twelfth session or fourth month of services, the mental health professional must terminate the services or, with the consent of the minor, notify the parent or guardian to obtain consent to further outpatient services.

7. Contraception and abortion

The areas of birth control and abortion have had special rules for many years, given Federal Court decisions following and applying Roe v Wade (recognizing the right to abortion) and Griswold v Connecticut (recognizing the right to obtain birth control services), based on a finding of a Consitutional privacy interest.

A number of cases have been decided by the Federal courts, holding or suggesting that a minor has a Constitutional right to secure medical services in the areas of abortion and contraception, without the need for consent by her parents, although that right is not absolute in the case of abortion. The cases do not tell us whether that right extends to all minors, no matter how young, or where the line should be drawn, if one can be drawn. It could be argued that the Constitutional right as it pertains to obtaining contraceptives would apply to a 12-year-old as well as to a 17-year-old, but that result does not seem to comport with common sense and it is very doubtful that a court would extend the Constitutional right that far.

The cases lead us to conclude that it is appropriate for a hospital or a physician to prescribe contraceptive devices to a minor or to make a referral to another provider for abortion services, without parental consent. (Performing an abortion has its own special consent requirements; see the next section.) We do not venture to offer an opinion on whether there should be an age limit and what the age limit should be for the receipt of medical services in this area. A hospital or an individual practitioner may wish to set its own age cutoff for such services.

That does not mean that the hospital or physician is legally required to provide these services to minors without parental consent. We believe that a physician is entitled to follow his own conscience in this sensitive area. Hospitals which are operated by governmental entities, and the physicians who are employed by those hospitals, must tread carefully in this area, however, since there are Constitutional limitations on the actions of governmental and quasi-governmental agencies which do not constrain "private actors". (Michigan does have a "conscience law" which prohibits any hospital from taking any negative action against an employee who refuses to participate in any medical procedure which results in an abortion. The protection of that statute does not extend to contraceptive services.)

The Sixth Circuit Court of Appeals (which includes Michigan) has held that the practice of publicly operated family practice clinics of distributing contraceptive devices and medications to unemancipated minors without notice to their parents does not violate the constitutional rights of the parent. Doe v Irwin, 615 F 2d 1162 (6th Cir 1980).

We would caution that a physician who decides to provide treatment in this area may not thereafter decide to disclose the fact of treatment or other medical information to the patient's parents, without her consent. The physician may elect to not provide treatment to a minor, but if he elects to provide treatment, he will be required to maintain the confidentiality of medical information to the same extent as for any other patient.

8. Abortion - parental consent statute

Many hospitals have elected not to provide services related to pregnancy termination procedures on an elective basis. The following information, however, is important for those physicians who are employed by the hospital and who may have occasion to make a referral to another practitioner for these services.

Michigan law now requires parental consent for an abortion for a minor, and provides an alternative mechanism for securing judicial approval of the procedure as a substitute for this consent.

The Parental Rights Restoration Act, MCL 722.901; MSA 25.248(101) et. seq, provides that a medical provider may not perform an abortion upon a minor without first obtaining the written consent of both the minor and one of the parents or legal guardians of the minor. The Act establishes a mechanism for bypassing the parental consent requirement, involving a probate court proceeding to enable the minor to obtain judicial authorization for an abortion.

These consent provisions (obtaining the consent of the minor and one of the parents or legal guardian of the minor) do not apply to emergency situations in which the continuation of the pregnancy of the minor would create an immediate threat and grave risk to the life to the minor, as certified in writing by the physician.

The decision to refer the minor to another provider is not covered by this statute. That is, we do not believe that a parent's consent is necessary in order for a physician to make a referral to another provider for consideration of performing an abortion. The practitioner to whom the minor is referred would have the responsibility to ensure that the consent requirements are met. The considerations discussed in the previous section apply to this issue as well.

9. Department of Social Services

A probate court, a child placement agency, or the Department of Social Services may consent to routine non-surgical medical care or emergency care in surgical treatment of a minor who is placed in an out-of-home care facility or within the jurisdiction of the Department of Social Services in conjunction with abuse and neglect proceedings. MCL 722.124a; MSA 25.358(24a). A parent or guardian of the child who voluntarily places the child in a child care organization usually executes a written instrument vesting the organization with authority to consent to emergency medical and surgical treatment of the child. Only the child's parent or guardian can consent to non-emergency, elective surgery for a child in foster care. If parental rights have been permanently terminated by court action consent for non-emergency elective surgery shall be given by the probate court or the agency having jurisdiction over the child.

"Routine non-surgical medical care", as used in the statutory section, does not include contraceptive treatment, services, medication or devices. Further, the statutory provisions provide that nothing in the act shall authorize or require medical examination, immunization or treatment for any child whose parents object thereto on religious grounds.

10. Conclusion

If treatment is provided to a minor who is not emancipated, does not fall within the above-statutory exceptions, or the treatment is not afforded in an emergency situation, the treatment is legally provided without consent. Treatment provided without an appropriate consent legally constitutes battery and could subject the hospital to liability.

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