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How to Consent to Medical Care for Minors (August 07, 2001)
Parents and their teenage children often have questions concerning their rights to consent, or refuse to consent, to medical care for a child. The parent(s) or guardian of a minor child (that is, anyone under the age of eighteen years) is generally required to give informed consent for most medical decisions on behalf of that child. However, there are exceptions, and there are certain types of medical care for which minors may themselves consent. The following discusses who may consent to medical care for a minor child. The first section covers the laws which allow minors to consent to their own medical care. The second section discusses the laws which allow parents, including divorced parents and foster parents, guardians and others to consent to medical care for minors.
Laws Authorizing Minors to Consent to Treatment
Minors authorized to consent because of their status
There are two types of laws which authorize minors to consent to medical treatment. First, there are laws which authorize minors who have attained a certain status to consent to virtually all types of health care except certain irreversible and highly invasive procedures such as psychosurgery. Minors authorized to give legal consent to medical treatment under these laws include:
- Married (or divorced) minors (Family Code §§7002 and 7050(e)(1)).
- Minors on active duty with the U.S. Armed Forces (Family Code §§7002 and 7050(e)(1)).
- Minors emancipated by a court order (Family Code §7120).
- Self-sufficient minors (minors fifteen years or older living away from home and managing their own financial affairs) (Family Code §6922). These minors will generally be asked to complete a form which provides information demonstrating that they fall within the statute.
Types of treatment to which minors can consent
Second, there are a number of laws which authorize minors to consent to certain types of medical treatment. Medical treatment covered by these statutes includes:
- Pregnancy, Contraception and Abortion. Care for the prevention or treatment of pregnancy (including contraception and abortion, but not sterilization) for minors of any age (Family Code §6925). (The law which would have established a parental or court approval requirement for abortion is NOT IN EFFECT.) The right of a minor to consent to pregnancy related services includes genetic counseling and testing services which, under the law, must be offered to all pregnant women. (Health & Safety Code §125000.)
- Contagious Diseases. Care of any infectious, contagious, or communicable disease of the type which must be reported to the local health officer if the minor is twelve or older. (Family Code §6926.)
- Sexually Transmitted Diseases. Care of a sexually transmitted disease if the minor is twelve or older. (Family Code §6926.)
- Rape. Care related to the diagnosis or treatment of rape if the minor is twelve or older. (Family Code §6927.)
- Sexual Assault. Care related to the diagnosis or treatment of sexual assault for a minor of any age (but the treating physician must attempt to contact the child's parents or legal guardian unless the physician "reasonably believes" that the parent or guardian committed the sexual assault). (Family Code §6928.)
- Mental Health. Mental health treatment or counseling on an out-patient basis (not including convulsive therapy, psychosurgery or psychotropic drugs), or residential shelter services, if the minor is twelve or older and mature enough to participate intelligently and either (1) the minor is an alleged victim of incest or child abuse or (2) there is danger of serious physical or mental harm to the minor or others without such treatment. (The treating physician must contact and involve the parents unless the physician believes such contact would be inappropriate.) (Family Code §6924.) "Residential shelter services" are defined to mean the provision of residential and other support services to minors on a temporary or emergency basis in a facility which services only minors by a governmental agency or other specified entities or individuals.
- Drug or Alcohol Abuse. Care related to the diagnosis or treatment of drug or alcohol-related problems (not including methadone or LAAM treatment) if the minor is twelve or older. (The treating physician must contact the parents or guardian and give them an opportunity to participate unless the physician believes such contact would be inappropriate.) Moreover, parents have the right to seek such care and obtain the resulting medical information over the child's objection. (Family Code §6929) Federal laws prohibiting the disclosure of certain substance abuse records may control over this state law.
- HIV Tests. The performance of an HIV test for minors twelve or older. (Health & Safety Code §121020)
Confidentiality of minor's medical records
Except as otherwise provided by law or if the minor authorizes it in writing, physicians are prohibited from telling the minor's parents or legal guardian about medical care the minor was legally able to authorize.
When a minor seeks medical treatment for which the minor has the legal power to consent, for example, treatment for the prevention and care of pregnancy, and the minor's parents have no knowledge of the proposed care, the physician will generally discuss with the minor the advantages of disclosing the proposed treatment to the minor's parents or guardian before services are rendered. The physician and minor should reach an understanding concerning 1) the extent to which the parents or guardians will be informed, 2) who is responsible for paying the cost of the medical treatment and 3) to whom the physician can disclose the medical information that is necessary to obtain payment for the treatment. Minors should understand that it may be impossible to keep the information from their parents if the minor expects the parents' health plan to pay for the services.
For more information on patient access to medical records, please see the section on this web site entitled How to Get Your Medical Records.
Consent of parents and others
Adoptive Parents
If a child has been legally adopted, the adoptive parents have the same authority to consent to medical treatment as do biological parents. A stepparent has legal power to make medical treatment decisions for a minor only if he or she has legally adopted the minor.
Minors Born to Unmarried Parents
The biological mother has the legal right to make medical treatment decisions for a minor, whether or not she is married. If there is no question of the identity of the natural father, then he also has the legal right to make medical treatment decisions for the minor. In cases of uncertainty about the biological father's identity, or if the biological parents disagree about the appropriate treatment, court resolution may be necessary.
Minors Born to Minor Parents
A minor natural parent has the legal right to make medical treatment decisions for his or her minor child. It is important to make sure that the minor parent understands the nature of the treatment and the possible consequences of the treatment in order to give informed consent.
Parents Who Disagree
For most common medical procedures, it is sufficient to obtain the consent of one parent (in an intact married couple). However, if the treatment poses a significant risk to the minor, or implicates special personal or religious concerns, for example, a blood transfusion if one or both of the parents are Jehovah's Witnesses, the consent of both parents would be advisable. If the parents disagree about the advisability of the procedure, and the dispute cannot be resolved, it may be necessary for a juvenile court to intervene.
Parents Who Have Divorced
If the parents have joint legal custody, the parents must "share" the right to make health care decisions for their child. This means that either parent acting alone may consent to a recommended medical procedure, unless the court issuing the order of joint legal custody has specified that the consent of both parents is required for certain, or all, medical decisions. (See Family Code §§3003 and 3083.) If the parents with joint legal custody are unable to agree about the treatment that should be provided, it may be necessary to obtain a court order resolving the matter before treatment is provided, unless there is an emergency.
If a parent has sole legal custody of the child, that parent has the right to make health care decisions for the child. It should be noted that a court may award joint legal custody without awarding joint physical custody. Therefore, the fact that a child lives with one parent only does not mean that the other parent does not have the legal right to make a medical decision for the child. A parent with legal custody cannot be denied access to his or her child's medical record and information merely because the parent is not the child's custodial parent. (Family Code §3025.)
If a custodial parent has been diagnosed with a terminal condition, as evidenced by a physician's declaration, a court may appoint the custodial parent and a person nominated by the custodial parent as joint guardians of the minor. However, such an appointment cannot be made over the objection of a non-custodial parent unless a finding has been made that the non-custodial parent's custody would be detrimental to the minor. (Probate Code §§1419.5 and 2105.)
Parents With Children Under the Jurisdiction of the Juvenile Court But Living at Home
It is usually assumed that parents retain the right to make health care decisions for their children even when the court has taken jurisdiction due to child abuse or neglect unless the court specifically orders otherwise.
Legal Guardians
A legal guardian has, for the most part, the same authority to consent to medical treatment for a minor as a parent would have. However, if the minor is fourteen years of age or older, no surgery may be performed upon the minor without either 1) the consent of both the minor and the guardian or 2) a court order specifically authorizing the treatment. However, if the guardian determines in good faith, based upon medical advice, that there is an emergency in which the minor faces loss of life or serious bodily injury if the surgery is not performed, the guardian's consent alone is sufficient for the surgery. (Probate Code §2353) In addition, a guardian cannot authorize sterilization, convulsive treatment, experimental drugs or placement in a mental health treatment facility over the minor's objection. (Probate Code §2356)
Caregivers
Certain categories of caregivers have the same rights to authorize medical or dental care as a guardian has under Probate Code §2353. (Family Code §6550.) The caregiver must meet the requirements of §6550 and complete and sign an affidavit form as set out in Family Code §6552.
A caregiver who is a relative may consent to mental health treatment (subject to the limitations imposed on a conservator by Probate Code §2356). (Family Code §6550(a))
Stepparents
A stepparent does not have the authority to give legal consent to medical treatment for a minor stepchild, unless the stepparent has legally adopted the child or been designated a legal guardian. If the stepparent becomes the child's adoptive parent, the stepparent takes over the rights and responsibilities of the parent who loses parental rights.
Foster Parents
A person who is licensed to provide residential foster care to a child placed with him or her either 1) by order of the juvenile court or 2) voluntarily by the person or persons having legal custody of the child, may legally give consent to ordinary medical and dental treatment for the child, including, but not limited to, immunizations, physical examinations, and x-rays. A foster parent may not give consent for other types of medical or dental treatments, e.g., surgical or experimental/controversial treatments. However, if the parent or parents have voluntarily placed the child with the foster parent(s), the parties may agree in writing to permit the foster parent(s) to consent to other types of medical treatment. Moreover, with respect to court placements, the juvenile court may expressly reserve the right to consent to medical treatment to itself. (Health & Safety Code §1530.6.)
Foster parents who have only temporary custody of a child before a dependency hearing do not have the legal right to give consent to medical treatment for the child.
Minors Whose Parents are Unavailable
As discussed previously, consent of a parent or guardian is not necessary when the minor is authorized to consent him or herself as provided with respect to 1) certain categories of minors or 2) certain types of care. There are other exceptions to the general rule which allow children to receive necessary medical care even in the absence of a parent or guardian.
Vacation, Camp, Parents at Work, etc.
A child's parents or legal guardian may sign a statement form authorizing someone else (friend, relative, camp director, babysitter, etc.) to consent to medical care in the event the child or the child's parents will be away from home, such as during vacations. (Family Code §6910.)
School Children
Reasonably necessary medical treatment may be provided to school children who become ill or injured during regular school hours, unless the parent or guardian has previously filed with the school a written objection to any medical treatment other than first aid. (Education Code §49407)
Emergencies
Minors requiring immediate services for alleviation of severe pain, or immediate diagnosis and treatment of unforeseeable medical conditions, which, if not immediately diagnosed and treated, would lead to serious disability or death generally may be treated even if the parent, guardian or other person authorized to consent cannot be contacted. In these emergencies, the law "presumes" consent, since the alternative would be allowing the child to suffer avoidable injury.
World Cup or Olympic Team Members
The official team manager who is responsible for any team member participating in events at the invitation of the XV FIFA World Cup Organizing Committee or the United States Olympic Committee in California may give consent to the furnishing of hospital, medical, and surgical care to a minor who is a team member. That consent is not subject to disaffirmance because of minority. The consent of the parent, or parents, of that minor is not necessary in order to authorize the hospital, medical and surgical care. (Business & Professions Code §2076.5)
Minors 16 or Older
If a minor is sixteen years or older, and the minor has no parent or guardian available to give legal consent, the minor may apply to the superior court for consent to medical treatment. No fee may be charged for such a proceeding. (Family Code §6911.)
The California Medical Association hopes this information is helpful to you. CMA is unable to provide specific legal advice to you. For a legal opinion concerning your specific situation, consult your personal attorney.
© California Medical Association 2001
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