Legal / Ethics

What you must know about minors and informed consent

Most nurses view obtaining consent and providing treatment as routine. But when the patient is a minor, especially an older child or adolescent, obtaining consent can be anything but routine. How can a nurse know when a minor can grant consent and when consent must come from parents or guardians?
— RN

As this nurse’s question indicates, obtaining consent for a patient under the age of 18 can be complex—certainly more complex than it used to be. In the past, only adults could grant informed consent, so parents and legal guardians gave consent for patients under age 18. A minor simply wasn’t seen as being capable of making an informed healthcare decision.
Over time, this view has changed. Today, many states recognize exceptions, including emancipated minors, mature minors, minors with certain health conditions, and minors needing emergency treatment.

Emancipated minors
An emancipated minor is considered a competent adult with the authority to accept or refuse medical treatment. Not all states have emancipation statutes, but those that do allow emancipation if a minor has entered into a valid marriage, is a member of the military, or has been granted emancipation by a court.

To petition a court for emancipation, a minor must be a certain age (from 14 to 16, depending on the state law), not live with his parents or guardians, be capable of managing his  financial affairs, and have the ability to provide for his general well-being. In short, the minor must be independent of the care and custody of parents.

Mature minors
The mature minor doctrine allows some decision making for adolescents who have the capacity to make decisions but who are not legally emancipated. The mature minor must demonstrate that he or she fully understands the treatment and the consequences.
The mature minor doctrine is applied when a minor is age 16 or older and understands the medical procedure and the procedure isn’t serious.

Minors with certain health conditions
Based on the need to promote a healthy society and the health of the minor, a minor with certain health conditions may seek treatment without parental consent. These conditions include pregnancy, sexually transmitted diseases, sexual abuse, and certain mental health conditions such as alcohol or drug abuse.


Minors needing emergency treatment
The emergency treatment exception allows you to treat minors in emergency or life-threatening situations when a parent or guardian can’t be reached to give consent. The legal definition of an emergency medical condition is any condition that threatens the loss, impairment, or serious dysfunction of life or limb or causes severe pain.

Unlike the emancipated and mature minor doctrines, this exception is based not on the minor’s autonomy but on the need to maintain the minor’s health and well-being. This exception protects you and other healthcare providers from assault and battery charges that often stem from providing treatment to someone without consent.

Including minors in the decision
If none of these exceptions apply, you should still include the minor, especially an older child or adolescent, in the decision-making process. Make sure such patients understand the treatment process.

The American Academy of Pediatrics uses the term patient assent to describe the pediatric patient’s involvement in decision making. This concept requires you to consider the developmental level of the child, the child’s interest in and understanding of the treatment plan, and the child’s comments regarding the treatment. Work with the parents to create an environment that allows the child to be an active participant. Use pediatric learning and communication tools and toys to help the child to understand the treatment plan.Excluding the parents

Sometimes, parents make treatment decisions that aren’t in their child’s best interest. For example, parents may not consent to medical care for a child, even though without it, the child will die or suffer serious harm.

In these situations, the hospital’s attorneys will ask the court to remove the parents as the decision makers and appoint a legal guardian to make decisions. Although laws vary from state to state, courts have consistently removed minors from their parent’s custody to ensure treatment for life-threatening illnesses.

Best outcome for all
The issues surrounding minors and informed consent aren’t as straightforward as they once were. But with the exceptions and other considerations comes a respect for minors and their rights. By understanding your role and the legal framework, you can minimize conflict and promote the best outcome for everyone.

— Mable H. Smith, PhD, JD, RN,
Dean and Professor at the College of Nursing,
University of Southern Nevada in Henderson

The information above does not constitute legal advice. For a list of selected references, see May 2007 references.

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