Medical screening, examination and treatment of an emergency medical condition of a minor in the emergency department should not be delayed because of consent issues.
Illness and injury may strike children at any time or place. Young patients may present to the emergency department (ED) without legal a guardian. Perhaps they are coming from school or daycare, or extracurricular activities or jobs. Perhaps they are immigrants without legal guardians. Maybe they are simply adolescents driving themselves to the ED or are runaway youths seeking care. One can imagine minors presenting without a guardian from mass casualties or disasters, or any other number of scenarios. This raises the question of how medical evaluation and treatment should be delivered to a minor patient in the ED. What are the legal implications of managing these patients? Who can provide legal consent? Can minors refuse care? What is the role of confidentiality when adolescents seek care?
The American College of Emergency Physicians (ACEP) updated its policy on this concern, as legal and technological implications have evolved. A crucial driver of emergency care delivery is the Emergency Medical Treatment and Labor Act (EMTALA), mandating that any hospital receiving federal funding must offer a medical screening examination to anyone seeking evaluation, and must stabilize any emergency medical condition identified, specifically including minors. Hospitals should not delay evaluation and emergency treatment based on consent issues with the assumption that if there was a guardian present, he or she would consent to treatment if in the best interest of the child.
Specific issues of patient status and condition are important in delivering care to adolescent patients. Specific state laws vary in regard to patient status, based primarily on legal emancipation or upon the “mature minor doctrine,” which allows minors who demonstrate understanding of their condition to provide consent without seeking emancipation or other legal status. Specific patient conditions also allow minors to consent for care, also varying by state and commonly including mental health concerns, substance abuse, and reproductive health. Given the variability between states on these issues, providers should be aware of their location’s current statutes.
When presenting without a parent or legal guardian (and not meeting state definitions regarding status or condition), the concept of providing consent becomes challenging and may create a barrier to providing care. Emergency care should be delivered while attempting to contact a guardian, yet nonemergent care should be withheld. Given that 90% of US adults now carry cell phones, rapid telephone consent may remove this potential barrier. When minors present with a legal surrogate decision maker, facilitated by consent by proxy forms, delivering care is straightforward. However, family members other than guardians do not commonly have legal surrogate authority, and nonemergency care should be withheld while obtaining formal consent.
Another major consideration when dealing with consent for treatment of minors is confidentiality. HIPAA generally allows parental access to a child’s record, yet exceptions exist. Adolescents seeking emergency care may request confidentiality, and this should be respected when dealing with a competent minor. This may be overridden by other considerations, such as legal or ethical requirements to protect the patient or the public. Reimbursement practices may threaten this confidentiality, as parents or guardians may obtain the information through mechanisms of financial transparency, namely the Explanation of Benefits that most states require be sent to the primary policy holder, instead of the dependent. However, federal law supports dependents receiving health plan-related communications through alternative means. The American Academy of Pediatrics specifically recommends protecting this information, and adolescent-specific portals that do not share information with parents or guardians report high usage.
The capacity for minors to consent for care also affords them the right to decline care. If the patient understands risks, benefits, and alternatives, this should be respected, and the discussion with the patient should be well documented.
Children will continue to present to EDs without guardians, and our responsibility to these patients is to deliver emergency medical care without delay. Further refinement of processes to maintain confidentiality, specifically through healthcare reimbursement processes and electronic medical record access, will be a crucial part of providing care to this sensitive population.
Benjamin L, Ishimine P, Joseph M, Mehta S. Evaluation and Treatment of Minors. Ann Emerg Med. 2017 Aug 5. Available at: https://www.acep.org/Clinical—Practice-Management/Evaluation-and-Treatment-of-Minors/#sm.008xy0y415f0efn10gu1f05nrrrkd