OR WAIT null SECS
When a minor seeks treatment without the consent of a guardian, it's rarely clear how you should proceed. To whom do you owe your allegiance - the patient or the parent?
If you had a patient who tested positive for HIV, you'd tell him, right? What if the patient was 17, and it was his mother who had passed the AIDS-causing virus to her son and his siblings in utero? She had neglected to tell any of her children about their condition - and wanted you to keep the secret.
Or suppose your minor patient is in need of an organ transplant, and the best match is his older sibling, also a minor. How can you help the parents make the gut-wrenching decision of whether to risk one child's life to save the other?
These may seem like plotlines for an upcoming episode of "ER," but in fact they are real situations that physicians at Nemours, a multistate pediatric practice based in Florida, have had to confront. And while extreme, they underscore the nature of a problem often faced by doctors who treat children - navigating the confusing and sometimes conflicting thicket of laws, regulations, and ethical obligations in cases where it's unclear if the best interests of the patient are aligned with the desires of the patient's parent or guardian.
"Boy, what an ethical dilemma," says Ann Bittinger, Nemours' in-house counsel, referring the situation involving the HIV-positive teenager. The biggest question doctors had to wrestle with, she says, was, "Who are we representing?"
The organ-donor case was made less prickly by the fact that doctors were not in conflict with the parents. Still, says Bittinger, "there's just no law, no regulation, that tells you what to do in those situations. It was a matter of sitting down with everyone involved and talking it through."
If your practice treats minors - especially teenagers - then you, too, must tackle sensitive relationships involving parents and children. Even if your patients don't face choices as painful as those of Nemours', you're likely to deal with questions about treatment, information access, and payment when it comes to minors.
"It's definitely a problem," says Maxwell Mehlman, professor of biomedical ethics at Case Western Reserve University in Cleveland and the director of its Law-Medicine Center. "There are some physicians who think they've figured it out, but whether they've figured it out correctly is the question. You have these tricky, triangular relationships in which the child is clearly the patient, but the only person who can enter into that relationship is the parent."
The assumption that minors, in general, are legally incapable of entering into physician-patient relationships is one of the few universal principals that apply regardless of the state in which you practice. After that, it gets tricky.
When minors are adults
Sometimes, minors can act as adults in making their own decisions. One such instance is when the minor is an "emancipated minor," meaning that, by court order or simply based on the circumstances of his life, the patient is considered an adult despite his age.
Another is the so-called "mature minor," a legal doctrine in which physicians may conclude that a minor is mature enough to handle an adult relationship with a physician.
Most states have fairly clear laws defining emancipated minors, but they vary widely. In some states, a minor is emancipated if he or she is married. In others, she has to be pregnant - and even then, she might be emancipated only for the purposes of making decisions regarding her pregnancy. Elsewhere, a young person is an adult if he's living on his own and paying his own bills, while in still other states, he must go to a judge and be declared emancipated.
If a teenager arrives in your office and tells you she's emancipated, can you rely on that for the purposes of treatment? In general, yes.
States don't require you to be a detective or to demand court orders from your young patients, but they do require you to use solid judgment in good faith. You can assume, for instance, that a pre-adolescent child is not emancipated. Moreover, to show good faith, you should know what the emancipated minor laws are in your state, and make a reasonable effort to gather information about your minor patient's situation before accepting her claim.
"The first thing you have to do is make a rough determination of what your state laws really are," says Jeffery P. Drummond, a healthcare attorney and partner with the Dallas law firm Jackson Walker.
The same goes for the mature minor doctrine. Many states have such a legal principle, but others don't. And even if your state recognizes mature minors - and your right to determine whether a minor qualifies - that right is not unimpeachable.
"A lot of physicians rely on that, even if they're not familiar with the term 'mature minor doctrine'," says Mehlman. "The only problem is that a parent can challenge that, and without a court order saying 'this is a mature minor' - and some states specifically require a court order - you could have a problem. From the angry parent who says, 'How dare you give birth control to my child?' or 'How dare you treat my child for an STD without telling me?' the physician is at risk. The parent could file a complaint with the state medical board, or the local medical association, or even file a malpractice suit."
Although a lawsuit is highly unlikely under such circumstances, it is not impossible. In fact, according to healthcare attorney Jennifer Daniels, it is conceivable that a physician who inappropriately performs a medical procedure on a minor without a guardian's consent could face criminal consequences. Unauthorized medical treatment is technically assault, says Daniels, of the law firm Blank, Rome, Comiskey & McCauley in Philadelphia.
Daniels stresses that a criminal charge is extraordinarily unlikely lacking a case for bad faith on the doctor's part, but even the theoretical prospect underscores the conundrum physicians face - and the importance of dealing correctly with the issue.
Apart from emancipated and mature minors, there are a hodgepodge of legal exceptions to the rule prohibiting treatment of minors without consent. These exceptions, all based on the particular circumstances of the case and varying widely by state, can be classified into three categories: drugs, sex, and mental health.
"Generally, the states say that an unemancipated minor has the right to seek mental health treatment, substance abuse treatment, and sexual health treatment - including, possibly, an abortion - without the consent of her parents," says Daniels. "And obviously, that's to encourage them to do what's best in terms of their health, and public health, even if they're afraid to speak to their parents."
If you suspect a patient has been physically or sexually abused by a parent, you can treat her, at least with regard to the medical problems that may have resulted from the abuse. In general, if a minor requests it, you can also perform a test for a sexually transmitted disease without a parent's consent; after all, STDs are communicable, and therefore a public health issue. The same goes for substance abuse counseling, since many young people will not seek help if they think their parents will find out they have a problem.
Most states have specific laws that address whether you can terminate the pregnancy of a minor without parental consent or notification. Even if your state does not address this issue in its laws, remember that the general rules apply regarding the treatment of minors. Those rules are also in effect in other matters of pregnancy and sexual health, unless your state has carved out special exceptions. Can you prescribe birth control pills to a 17-year-old without consent? Only if your state says you can, or if she is emancipated, or if your state recognizes the mature minor doctrine and you've determined that she qualifies.
Privacy and payment
Once you've made a determination to treat a minor as an adult, how should you treat the medical records? According to experts, treat the records as you do the patient.
"If the child is being treated as a child, and doesn't meet any of these exceptions, the general rule is that the physician does not have a duty of confidentiality to the patient, but has to reveal whatever's in the patient's best interest to the parent," says Mehlman. "On the other hand, if the physician is treating the patient as an adult, they usually owe the same duty of confidentiality to that minor as they would to an adult."
That means that mom and dad have the right to all of their child's records to the extent that the youngster was treated as a child, and none of the records to the extent that he was treated as an adult. If you have a patient you've treated as a child on some occasions and as an adult on others, attorneys suggest you "red flag" the adult records in order to prevent their unintended release.
Payment is an issue that sometimes intersects with minors' privacy, since insurers typically send an explanation of benefits form to a patient's home whenever you make a claim. Though they vary in detail, the forms at least indicate that a patient encounter occurred, and that may be enough to blow a teenager's cover with his parents.
What can you do? You're not obligated to do anything, since it isn't your office sending the explanation of benefits. But since minors are usually oblivious to such matters, it would be a nice courtesy to find a way to inform them - perhaps by posting signs in the office, including it in your HIPAA-required privacy notice, or simply by having staff advise young patients about the matter. You'll also need to decide whether to make patients who balk at using their parents' insurance pay cash.
Bob Keaveney, associate editor for Physicians Practice, can be reached at firstname.lastname@example.org.
This article originally appeared in the April 2003 issue of Physicians Practice.