Overcoming legal obstacles involving the voluntary care of children who are separated from their legal guardians during a disaster

A large-scale disaster may separate children from their parents or guardians and may strand many children in the care of temporary caregivers, including physicians and nurses. In general, unless a physician or nurse is a member of a public sector emergency response program (a "VHP"), parental consent is required for the treatment of minors outside of an emergency department unless the minor is suffering from an imminently life-threatening condition. Physicians or nurses who are not VHP's may be held liable (civilly, criminally and administratively) if they provide care without parental consent outside of an emergency room to a child who is not suffering from an imminently life-threatening condition. The existing rules regarding parental consent would, in many cases, limit (or at least discourage) the provision of optimal health care to children in a large-scale disaster by restricting care aimed to alleviate pain, the treatment of chronic conditions as well as the treatment of conditions, or potential conditions, that could worsen or develop in the absence of treatment.Additionally, "Good Samaritan" laws that generally limit the liability of health care providers who voluntarily provide care in an emergency may not apply when care is provided in a crude or makeshift clinic or when care is not provided at the scene of the emergency. Thus, benevolent physicians and nurses who voluntarily provide care during a large-scale disaster unjustly risk liability. The prospect of such liability may substantially deter the provision of optimal medical care to children in a disaster. This article discusses the shortcomings of current laws and proposes revisions to existing state laws. These revisions would create reasonable and appropriate liability rules for physicians and nurses providing gratuitous care in emergencies and thus would create reasonable incentives for health care providers to deliver such care. ("Gratuitous care" is the legal term for care provided voluntarily and without expectation of payment.).     

Consent for emergency medical services for children and adolescents

Pediatric patients frequently seek medical treatment in the emergency department (ED) unaccompanied by a legal guardian. Current state and federal laws and medical ethics recommendations support the ED treatment of minors with an identified emergency medical condition, regardless of consent issues. Financial reimbursement should not limit the minor patient's access to emergency medical care or result in a breach of patient confidentiality. Every clinic, office practice, and ED should develop policies and guidelines regarding consent for the treatment of minors. The physician should document all discussions of consent and attempt to seek consent for treatment from the family or legal guardian and assent from the pediatric patient. 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. 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.     

Informed consent/assent in children. Statement of the Ethics Working Group of the Confederation of European Specialists in Paediatrics (CESP)

Informed consent means approval of the legal representative of the child and/or of the competent child for medical interventions following appropriate information. National legal regulations differ in regard to the question when a child has the full right to give his or her autonomous consent. Informed assent means a child's agreement to medical procedures in circumstances where he or she is not legally authorised or lacks sufficient understanding for giving consent competently. Doctors should carefully listen to the opinion and wishes of children who are not able to give full consent and should strive to obtain their assent. Doctors have the responsibility to determine the ability and competence of the child for giving his or her consent or assent. All children, even those not judged as competent, have a right to receive information given in a way that they can understand and give their assent or dissent. This consent/assent process must promote and protect the dignity, privacy and confidentiality of the child and his or her family. Consent or assent is required for all aspects of medical care, for preventive, diagnostic or therapeutic measures and research. Children may effectively refuse treatment or procedures which are not necessary to save their lives or prevent serious harm. Where treatment is necessary to save a life or prevent serious harm, the doctor has the duty to act in the best interest of the child. However, parents may also refuse to consent and in this case national laws and legal mechanisms for resolving disputes may be used.Members of the Ethics Working Group of the CESP are: Timothy L. Chambers (UK), Francis P. Crawley (Belgium), Denis Gill (Ireland), Milena LoGiudice (Italy), Stefan Grosek (Slovenia), Ronald Kurz, Chairman (Austria), Maria de Lourdes Levy (Portugal), Staffan Mjönes (Sweden), Andreas Constantopoulos (Greece), Armido Rubino (Italy), Pieter J. J. Sauer (Netherlands), Martti Siimes (Finland), Michael Weindling (UK) and Maximilian Zach (Austria).Approved by the CESP, May 4th, 2002     

Ethics, law and paediatric medicine

Medicine is practised within an ethical and a legal framework. Doctors must obtain the broad consent of their patients before treatment begins, and tell them of their choices and the material risks inherent in treatment. Where children are the patients, it is their parents or guardians who must give their consent, unless the situation is an emergency or the children have been removed from parental custody and care. Today, mature teenagers may consent to their own medical treatment. Doctors must protect their patients' confidential information, however acquired. There are very limited exceptions where confidential information may be revealed, and a few where revelation is mandatory. Effective communication between doctors and their patients, or their parents, is of signal importance.     

Exploration for physicians of the mature minor doctrine

The "mature minor doctrine" is the common-law rule that allows an adolescent who is mature to give consent for medical care. Ethical decisions regarding consent and confidentiality should be distinguished from legal requirements. Recent court decisions have altered the law, especially in regard to consent for refusal of life-sustaining treatment. There are statutory exceptions to the rule of parental consent regarding emergency care, sexually transmitted diseases, drug treatment, mental health care, pregnancy, contraception, and emancipation. A detailed analysis of the mature minor exception is presented, utilizing court case vignettes. There is minimal legal risk in allowing adolescents older than 14 years of age to give consent for treatments entailing small degrees of risk, when they can make adultlike decisions and demonstrate signs of maturity.     

Praktyczne aspekty postępowania lekarza w razie braku zgody opiekunów prawnych na udzielenie świadczenia zdrowotnego

A legal guardian's consent is needed to give a medical benefit to a juvenile patient. In some measure this consent substitutes the juvenile's consent. Such rule has the usage towards juveniles till they reach 16. After reaching this age both legal guardian and juvenile consent is required. In this subject in the progress of diagnostic-therapeutic treatment many problems may be found, for instance those concerning a definition of the way of the doctor's behavior when parents do not give consent for suggested medical treatment. In some situations the juvenile is allowed to make an objection by himself. There are also many cases when the matter has to be solved by the guardianship court. But when a delay could cause life threat or severe health disorder – is the doctor allowed to perform a treatment without the court's consent? This article is an attempt to solve such legal intricacies concerning treatment of the juvenile.     

Managed care and the pediatric emergency department

The growth of managed care has provided health benefits to millions of children while attempting to control the increase in health care costs. In adhering to these goals, MCOs are often at odds with emergency departments, and the emergency department physicians providing emergency care. The appropriateness or inappropriateness of emergency department visits can be disputed, but no criteria have been established. Even the definition of emergency is debated, although many states are adopting a prudent layperson standard. Emergency medicine physicians, primary care providers, and MCOs must cooperate to fully educate parents about the appropriate use of pediatric emergency services. Patients and MCOs should use facilities that can deliver pediatric emergency and critical care or provide appropriate transport systems to facilities that can. COBRA and EMTALA set the legal requirements to which emergency departments must comply when patients present for care. The basic caveats under COBRA require a medical screening examination for every patient and the stabilization of all patients with emergency medical conditions before inquiring about insurance or patients' ability to pay. A part of gatekeeping, MCOs often require authorization for treatment. MCOs authorize payment only. Evaluation and emergency treatment should not be withheld pending authorization. After the medical screening examination, recommended treatment should be in patients' best interests. All patients with potentially life-threatening conditions should be stabilized before transport, and all transfers must comply with the EMTALA. The transfer of unstable patients purely for economic reasons is a violation of the EMTALA. When stable, patients may be transferred to other facilities, but patients requiring specialty care should be taken to facilities best able to provide that care. Financial considerations should be superseded by medical necessity. Finally, improvements can be made in the way emergency medical service is provided to children within the current managed care system. The primary care provider is in a key position to inform parents about the types of pediatric emergencies, what to do in case one occurs, and to provide follow-up care. MCOs should incorporate clear information on pediatric emergencies. A mutual understanding of services needed, and how best to provide those services, are needed to forge a system that is responsive to children's emergency care needs.     

Ethical and legal aspects of management for disorders of sex development

Intense controversy surrounds the management of disorders of sex development, particularly in relation to the validity of parental consent for genital surgery and the removal of gonadal tissue carried out during infancy or childhood. Past practices have been heavily criticised on ethical grounds by patient advocacy organisations, who have demanded a moratorium on these kinds of operations unless authorised by a court. Some doctors and hospital administrators have been influenced by the controversy and have referred cases to the Family Court of Australia, where a series of judgements have now established legal precedents that apply across Australia, restricting the circumstances in which parents can give consent for surgery. An alternative approach is to use a hospital-based Clinical Ethics Response Group and, if necessary, Clinical Ethics Committee, which has lay and legal representatives as well as health professionals, as a semi-independent committee of review. Finding a solution that protects the human rights and best interests of children is an ongoing challenge.     

Le soin contraint de l’enfant et de l’adolescent dans un cadre judiciaire

This article describes the legal framework in which medical treatment can be ordered for a minor without his/her consent, by a judge for children. The decision process includes the search for parental and children cooperation and the article insists on the importance of social services support. Juvenile justice and child protection proceedings are both addressed, the French judge for children having jurisdiction on both. The article also questions the sense of judicially imposed medical care.     

Ethics and the management of the patient with intersex: a middle way.

We review the controversies surrounding the management of patients born with ambiguous genitalia to determine the strengths and weaknesses of recommendations for clinical practice. Traditional practice involves paternalistic decision making by medical practitioners, including the use of deception and/or incomplete communication of facts about the infant's condition and early surgical intervention to make a "definitive" sex and gender assignment. However, modern scientific evidence about sex-role determination refutes earlier theories supporting the appropriateness and need for early decisions. Some intersex individuals have begun to speak out against their treatment, denouncing the secretive approaches and cosmetic surgery without the specific consent of the (mature) affected individuals. They argue for complete disclosure of information regarding the condition and deferral of all surgery until at least adolescence. The traditionalist practices no longer conform to modern legal or ethical standards of care. The position of some intersex activists ignores the potential for psychosocial harm to intersex children and our society's general and strong deference to parental discretion in decisions for and about their children. We argue for a middle way, involving shared decision making with parents of children with intersex and the honoring of parental preferences for or against surgery.     

Parler de sa propre voix : être acteur de sa maladie à l’enfance et l’adolescence

The issue of consent to care is central today when dealing with issues related to medical ethics. It concerns respect for the autonomy of the person, which is at the heart of the Patient Rights Act of 2002, which requires the medical profession to obtain the patient's consent before administering treatment. This obligation is nevertheless problematic when it comes to children or adolescents who are under the responsibility of their legal guardians. Can we allow ourselves to do without their consent on the pretext that we are not obliged by law? This is a crucial ethical issue, mainly in the area of psychiatry where the relationship between the therapist and the patient is crucial. Should we consider that a patient, because he is a child or a teenager suffering from psychiatric disorders, does not have to give his opinion? Or should we help them to look for a way to make their voices heard so that they become an actor of their illness and its treatment?     

Child abuse intervention in the emergency room.

The pediatrician and other emergency room caregivers are often on the frontlines in the identification and treatment of child abuse and neglect. The ability to recognize the possibility of intentional injury is crucial because immediate intervention may be necessary to prevent further harm to the child. The evaluation requires a careful taking of history, thorough physical examination, and detailed documentation. Reporting of suspected abuse or neglect is mandated and must be made to appropriate authorities. Follow-up of medical treatment, services, and available therapy should be emphasized to assure the continued safety of the child.     

When parents refuse consent to treatment for children and young persons

One of the most difficult ethical dilemmas in paediatric practice is parental refusal to consent to life-saving treatment for their children. The ethical principles in such situations are complex. Although the 'best interests' of the child are of primary concern, these must be understood widely, as including all and not just medical interests. Though ultimately the courts must decide on a course of action where refusal is continued, we believe that in non-emergency cases consultation with a properly constituted multidisciplinary group will be of assistance. A national group of this kind has been recommended for New Zealand. This will ensure that all aspects of the cases are considered and can lessen the sense of 'parent versus medical profession' opposition. If this does not lead to a resolution, the opinion of the courts may be of assistance. Following a brief discussion of important ethical considerations, this article outlines a suggested constitution for an advisory committee and a set of guidelines for clinicians faced with parental refusal of treatment for their children.     

Treating minors without their parents

Minors frequently present to the ED for treatment without their legal guardians. In most such situations, it is best to contact the parents to obtain consent for treatment and to inform them about their child's problem. However, in some emergency situations or problems involving adolescent health, it may be impractical or damaging to contact the parents. In these situations, the law is sufficiently vague to protect the well-meaning physician who gives care to consenting minors for their own benefit. Of course, if problems result from the care which is rendered, the usual malpractice law will apply, and the physician will try to demonstrate that his treatment fit into one of the legal exceptions to the general rule.     

Pediatric care recommendations for freestanding urgent care facilities

Freestanding urgent care centers are not emergency departments or medical homes, yet they are sometimes used as a source of pediatric care. The purpose of this policy statement is to provide updated and expanded recommendations for ensuring appropriate stabilization in pediatric emergency situations and timely and appropriate transfer to a hospital for definitive care when necessary.     

The limits of parental responsibility regarding medical treatment decisions

Parental responsibility (PR) was a concept introduced by the Children Act (CA) 1989 which aimed to replace the outdated notion of parental rights and duties which regarded children as parental possessions. Section 3(1) CA 1989 defines PR as 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child'. In exercising PR, individuals may make medical treatment decisions on children's behalf. Medical decision-making is one area of law where both children and the state can intercede and limit parental decision-making. Competent children can consent to treatment and the state can interfere if parental decisions are not seemingly in the child's 'best interests'. This article examines the concept, and limitations, of PR in relation to medical treatment decision-making.     

Adolescent substance abuse. Confidentiality and consent

Although all states have laws that allow minors to consent to substance abuse treatment, there is variability from state to state. Health care providers need to be aware of laws within their states. When providing health care to adolescents, many situations arise in which the provider must make a determination of the patient's competence to consent and whether parental notification would be in the patient's best interest. Confidentiality should be honored when possible, with limitations of the extent of confidentiality explained. Adolescents are able to consent for alcohol and drug treatment in most states, but involvement of the family is optimal in most cases. Physicians and other medical care providers also need to manage confidentiality issues in drug testing, billing of services, and medical records and need to work with clinical administrative staff to clarify and implement policies to maintain confidentiality. Proposed changes to medical privacy regulations may compromise confidentiality for medical care of adolescents. Medical providers should continue to work with their professional societies and legislators to ensure that appropriate consent and confidentiality statues exist to provide optimal health care to adolescents.     

Rechtliche Aspekte der Therapiebegrenzung in der Pädiatrie

By using case studies, this article focuses on the preconditions for therapy limitation in children from a medico-legal point of view. The bases for a legal appraisal include statements from the German Medical Association, specialist medical associations, as well as the jurisprudence. All therapy needs to be justified by the indication and by patient consent, or the parents’ consent in the case of children. When the issue of therapy limitation arises in the case of children, emotions often make it difficult to view the situation objectively. Even life support measures such as artificial nutrition and ventilation represent invasive medical care, but are often perceived by doctors and nursing staff as necessary basic care. In many cases, attempts are made to justify a measure by virtue of the fact that it preserves life. There is no situation more distressing than allowing a child to die. Parents wishing to take this step must be prepared to encounter extreme hostility. Arguments are put forward on the basis of“the sanctity of human life”, although precisely this life is being preserved by means of artificial prolongation. In the case of therapy limitation in children, legal disputes result.     

Emergency Care of Pediatric Asylum Seekers in the United States

There has been a significant increase in the number of asylum-seekers entering the United States in recent years, including children and unaccompanied minors. Upon arrival to the country, these young patients may seek care in an emergency department for acute medical issues related to their journey or chronic conditions that were undiagnosed or inadequately treated in their country of origin. The purpose of this article is to familiarize emergency department clinicians with the common medical conditions seen in pediatric asylum-seekers and outline the ethical and legal issues that may arise when caring for this vulnerable patient population.     

Consent by proxy for nonurgent pediatric care

Minor-aged patients are often brought to the pediatrician for nonurgent acute medical care or health supervision visits by someone other than their custodial parent or guardian. These surrogates can be members of the child's extended family, such as a grandparent or aunt. In cases of divorce and remarriage, a noncustodial parent or stepparent may accompany the patient. Sometimes, children are brought for care by adults living in the home who are not biologically or legally related to the child. In some instances, a child care professional (eg, au pair, nanny) brings the pediatric patient for medical care. This report identifies common situations in which pediatricians may encounter "consent by proxy" for nonurgent medical care for minors and explains the potential for liability exposure associated with these circumstances. The report suggests practical steps that balance the need to minimize the physician's liability exposure with the patient's access to health care. Key issues to be considered when creating or updating office policies for obtaining and documenting consent by proxy are offered.