Let's say that your 15 year-old daughter has an open fracture (bone out through the skin), like a tibia fracture (lower leg), from riding her "friend's" motorcycle. Yup, the one you told her not to ride. Let's further stipulate that she has no ID on her, or has a concussion, or is otherwise unwilling to disclose who her parents are, perhaps because you told her not to get on the bike with the "friend" you told her not to see anymore. And so the EMTs, seeing this badly injured young girl, tend to her leg and bring her to the hospital's Emergency Department for this limb-threatening genuine medical emergency.
Now let's say that I'm the orthopaedist on-call. I know very well that the greatest likelihood of saving this extremity is to move quickly - get the xrays, splint and dress the leg, evaluate the blood and nerve supply, be sure that other possible injuries are evaluated, and make plans to move rapidly to the operating room to treat the injured leg. Such an injury has the highest likelihood of a good outcome when surgery to clean and stabilize the fracture and provide appropriate coverage for the bone is initiated within 6 hours of the time of injury. But there's a problem. We can't find the parents, and this girl is a minor.
Can I go ahead without her parents consent? Does anyone know how such a situation is handled in the hospital? And how is this different from the abortion "emergency," where a minor girl's health is in danger?
The truth is that I can take care of the problem if, in my medical judgement, the patient would be harmed by not proceeding. But there's a protocol. There first must be sufficient documentation of the nature of the emergency, and why waiting is inappropriate. Then there must be extensive efforts made to locate and inform the parents, with documentation of those efforts. Then the hospital administrator needs to be contacted, who will then contact a judge to provide consent for the procedure, with the court as a temporary guardian for this minor patient. All of this must be accomplished rapidly, and during this time we make preparations in the operating room for the surgery. But we don't go ahead unless all of these checkpoints and efforts have been made.
What if you can't get a judge or the hospital administrator to call back in time? You go ahead because the patients best interests are served, but you document the efforts you made. All of the efforts. For more detailed reading on the topic, from a lawyer/doctor, see "Law School for Physicians: Consent by minors."
The general rule is that parents have the power to consent for minor children. (Other caregivers cannot give consent unless they have parental authorization, preferably in writing.) However, physicians must be wary of parents attempting to force treatment – such as psychiatric hospitalization – on their children for punitive purposes. Also, additional state and federal laws extend the right to consent to certain minors based either on their legal status or the existence of particular medical conditions. Thus, parents may not hold absolute power when it comes to providing consent.
For example, most clinicians are probably already aware of the exception for medical emergencies. Legally, courts find implied consent in these situations, similar to the rationale allowing treatment of comatose adults. That is, the court presumes that if the parent or guardian had known of the imminent risk to the child’s health, treatment would have been authorized. The emergency must be an existing condition, not merely a potential one, but it need not be life threatening. Certainly, treatment should not be delayed if waiting for consent poses a clear risk to the child’s well being.
[...]
The federal family planning services grant program, Title X, also covers “unemancipated minors who wish to receive services on a confidential basis,"[9] without regard to age or marital status.[10] ... Note, however, that abortion services are not covered by Title X. Rhode Island requires parental consent for a minor’s abortion unless an appropriate court either finds her to be emancipated or determines that other statutory exceptions to notification are present.[12]
I'm sorry, but I just don't see much difference between my orthopaedic scenario and an "emergency" abortion due to the health of a minor girl.
12/1/05 0630: Just to clarify a bit, if this were not a medically documentable emergency and I did not obtain proper consent from the parents of this minor, and I still went ahead with a procedure then I'd be guilty of assault and/or battery.
12/3/05 1115: Wizbang's COTT XXXX linked. Don't you just love those symmetrical Roman numerals?
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