Consent for Emergency Medical Services for Children and Adolescents

BACKGROUND

Under US common law, parental consent generally is required for the medical treatment of minor children. However, a number of well-recognized exceptions to this “general rule” have been outlined in common and statutory law to allow for the treatment of minors without parental consent in situations that frequently occur in emergency departments (EDs).^1–14 In fact, every state has enacted minor consent statutes addressing some or all of these exceptions to the “general rule” (Table 1).^15,16 Since publication of the American Academy of Pediatrics (AAP) policy statement “Consent for Medical Services for Children and Adolescents” in 1993,¹⁷ a number of social, legal, and medical ethics considerations that directly impact the policy have developed. These considerations are addressed with this revision. This statement has been endorsed by the American College of Surgeons, the Society of Pediatric Nurses, the Society of Critical Care Medicine, the American College of Emergency Physicians, the Emergency Nurses Association, and the National Association of EMS Physicians.

In 1991, Treloar et al¹⁸ conducted a survey on the use of emergency services by unaccompanied minors and found that approximately 2% to 3% of all children seeking treatment in the ED were not accompanied by a parent or legal guardian. Although no recent studies have addressed this issue, the percentage of “unaccompanied” pediatric patients seeking treatment in the ED (by themselves or with child care providers, teachers, older siblings, divorced noncustodial parents, grandparents, foster parents, and state social service workers, among others) has likely increased. A 1993 policy statement from the AAP on consent noted that “fewer than one third of children live in two-parent families in which only the father works outside the home.”¹⁷ According to the US Department of Labor, today only 13% of families fit this “traditional model.”¹⁹ Currently, both parents work outside the home in 61% of families, and 60% of mothers of children younger than 6 years are in the workforce, leaving an estimated 19.3 million families of children younger than 14 years with work-related child care requirements.¹⁹ Because more children are being supervised outside the traditional framework of family, more children also are likely to be brought to the ED for treatment in absence of a legal guardian.

Common and statutory law generally has supported the physician or health care professional in providing emergency care for children in the ED without the consent of a parent or guardian. In addition, current federal law under the Emergency Medical Treatment and Active Labor Act (EMTALA) mandates a medical screening examination (MSE) for every patient seeking treatment in an ED of any hospital that participates in programs that receive federal funding, regardless of consent or reimbursement issues.^20–23 EMTALA preempts conflicting or inconsistent state laws, essentially rendering the problem of obtaining consent for the emergency treatment of minors a nonissue at participating hospitals.²³ The purpose of the MSE is to determine whether an emergency medical condition (EMC) exists, as defined by EMTALA, that may require the use of extensive ED resources, including laboratory testing, radiographic imaging, and subspecialty consultation as needed for diagnosis. In addition to life- or limb-threatening conditions, the legal definition of an EMC may include conditions with severe pain or conditions with the potential for serious impairment or dysfunction if left untreated.^14,22,23 If an EMC is identified, EMTALA mandates therapy up to and including surgical intervention or transfer to a more appropriate facility for stabilization if needed. If an EMC is not identified, EMTALA regulations no longer apply, and the physician or health care professional generally should seek proper consent before further care is provided. If the MSE or treatment for an EMC is refused, the ED should document the offer of appropriate evaluation and care, the discussion of the risks and benefits, and the competence of the individual revoking the request for care.²³ Although the ED should attempt to contact the unaccompanied patient’s parent or legal guardian to seek consent for treatment, the performance of the MSE and the stabilization of the patient with an identified EMC must not be delayed.²³ In his comprehensive reference on EMTALA, Bitterman stated, “Thus, under federal law, a minor can be examined, treated, stabilized, and even transferred to another hospital for emergency care without consent ever being obtained from the parent or legal guardian. Such care would not only be in the patient’s best interest but also required by federal law.”²³ Because the treatment of fractures, infections, and other conditions may broadly be considered as the prevention of disabling complications or EMCs requiring therapy, many centers currently treat all children arriving in the ED, “even if unaccompanied by a parent or caretaker.”²⁴

Current medical ethics recommendations also appear to support the ED treatment of unaccompanied minors.^25–28 A recent policy statement from the AAP Committee on Bioethics outlined the 3-way interaction among the physician’s responsibility (independent of consent issues) to treat the patient, the parent’s or other legal guardian’s “proxy” to provide “informed permission” for treatment of a minor child, and the right of the child to give (or refuse) “informed assent” for his or her own care, when appropriate.²⁸ This statement shifts some of the decision-making responsibility and rights to the child (as appropriate for the child’s level of maturity and understanding²⁹) and to the physician. Although medical care for an emergency condition may need to proceed without prior assent or permission, the physician should seek consensus from the patient or family as soon as possible. If a conflict over consent or assent for treatment develops, to resolve the conflict the physician may need to evaluate the patient’s emotional and intellectual maturity and understanding, the severity of the medical condition, the risks and benefits of treatment, the potential to defer therapy, and the basis for the refusal of treatment.^14,28 In some cases the physician may need to involve the court or social service agencies to proceed with treatment against patient or parental will.^14,28

Financial reimbursement for the ED treatment of the unaccompanied minor may affect access to appropriate medical care and patient confidentiality. Adolescents usually are covered by their family’s insurance or by Medicaid, but they may not have coverage for unaccompanied care, and they may not have the resources to pay for care themselves.¹⁵ As mentioned previously, EMTALA requires that an MSE be provided without consideration of reimbursement issues. Although state and federal programs exist to pay for children’s health care needs,¹⁵ uncompensated charges may result from the EMTALA requirement of treatment for all without regard to payment. The ED should ensure that the financial issues surrounding a patient’s treatment do not result in a breach of patient confidentiality, particularly if an unintended parental notification may result from the receipt of an itemized medical bill.^15,24 The physician should discuss these ramifications of unaccompanied care with the minor patient as appropriate for the patient’s level of maturity and understanding and seek assent from the patient for parental involvement, as may be required by patient privacy laws in some states, or honor the patient’s wish for confidential care.^15,24

Society expects that reasonable and appropriate medical treatment will be provided to the minor patient in emergent and urgent care settings. Physicians would still be well served medically and legally to follow the advice of a 1991 editorial on consent: “Act like the patient is someone you care about. Act like you have the courage and intelligence to tell the difference between necessary and unnecessary care and testing, and that you have done for the patient what you would have done for your own family member.”³⁰

RECOMMENDATIONS

1. Appropriate medical care for the pediatric patient with an urgent or emergent condition should never be withheld or delayed because of problems with obtaining consent.

2. The physician or health care professional should be familiar with EMTALA federal regulations and state laws concerning consent for the treatment of minors.

3. Every clinic, office practice, and ED should develop written policies and guidelines that conform with federal and state laws regarding consent for the treatment of minors, including specific guidelines on financial billing, parental notification, and patient confidentiality for the unaccompanied minor.

4. The physician or health care professional should document in the patient medical record all discussions of consent or assent, including the identity of the person providing consent or permission for treatment (the patient or parent or another adult acting on the parent’s behalf), an assessment of the maturity and understanding of the pediatric patient, and the efforts made to obtain consent from the patient’s legal guardian, if unavailable.

5. The physician or health care professional should always seek consent or assent for medical care from the pediatric patient as appropriate for the patient’s development, age, and understanding.

Committee on Pediatric Emergency Medicine, 2002–2003

Jane F. Knapp, MD, Chairperson

Margaret A. Dolan, MD

Ronald A. Furnival, MD

Barry W. Heath, MD

Steven E. Krug, MD

Deborah Mulligan-Smith, MD

Lee A. Pyles, MD

Richard M. Ruddy, MD

Kathy N. Shaw, MD, MSCE

Timothy S. Yeh, MD

Liaisons

Cindy Doyle, RN, BSN, MA

Maternal and Child Health Bureau

Marianne Gausche-Hill, MD

American College of Emergency Physicians

David S. Markenson, MD

National Association of EMS Physicians

Dennis W. Vane, MD

American College of Surgeons

Consultant

Jane Ball, RN, DrPH

Staff

Susan Tellez