Dr. MedLaw answers a physician’s question concerning the legal ramifications involved in gaining patient consent during medical emergencies.

Physician: Our ER recently ran a “lunch-and-learn” series on consent issues in emergencies.  It was a canned program where a question would be asked based on a hypothetical situation. We would answer it, and the correct answer would then be shown. One of the scenarios was a 16-year-old who was 5 months pregnant and who had a compound fracture of the humerus after being in a car accident. The question specified that the girl’s aunt was her guardian, but that while the aunt was away on a business trip in Japan, the girl was staying with her 23-year-old brother and his wife. The question regarded who would give consent for the ORIF (open reduction internal fixation).  The options were: 1. Phone consent from the aunt, 2. Written consent from the brother, 3. Written consent from the patient, and 4. Just proceeding.  I went with 1. Phone consent from the aunt, but the course slide stated that the correct answer was 4. Just proceeding. This does not seem correct to me.

Dr. MedLaw: Let’s break down the question scenario.

The girl could not give consent for herself–more about this below–and even though her adult brother was covering in ordinary caretaking ways while her aunt was away, he had not been granted medical decision-making power by the aunt, so they were both out as far as consent for a surgical procedure.

That just left trying to reach the aunt in Japan or proceeding without specific consent.

The “no consent” situation appears to be the question introducing the doctrine of implied consent. If a patient cannot speak for themselves due to their physical condition or a lack of legal capacity, and no one can speak for them, then this can come into play to presume that someone would want to be made well and allow care to proceed.  However, it is typically only applied in life-saving situations because the preference to respect patient autonomy is high.

That this girl had a painful fracture that needed repair made the situation emergent, but not to the degree that a reasonable attempt to obtain consent from her guardian, such as a call or text,  while the patient was given analgesics and positioned for comfort could not be made.

Let’s extend the situation and add that the patient was developing a compartment syndrome, which required rapid care.  This would decrease how much time could be spent trying to reach someone who was in a different area of the world and another time zone, but it would still be reasonable to attempt it while the OR was being set up and then default to “no consent” if the aunt could not be reached.

That having been said, the question was also making a correct point through the red herring of the girl’s pregnancy.

It is often incorrectly assumed that a minor who is themselves having a child is now considered emancipated, a “mature minor”. The term has nothing to do with actual maturity. In fact, a teen parent is frankly probably in that situation because of immature judgment. It only reflects legal cognizance of the fact that the minor is now in a typically adult role, creating a floor that confers legal capacity to make decisions such as those about finances, contracts, and medical care. Examples of such roles are parenthood, marriage, and military service. The minor will typically have to petition Family Court to adjudicate that they are now a legal adult.

However, when it comes to medical care, the degree of emancipation will matter.  A minor emancipated by marriage or military service will probably get complete consenting power for their care, but in emancipation by pregnancy, the scope of the decision-making may be limited to the pregnancy itself.  A pregnant minor may only be able to decide about prenatal care, but not be considered emancipated as to decision-making about non-pregnancy medical issues in their care.   A practitioner needs to know the specific limits in their state.

In this scenario, though, you were told that the aunt was the girl’s guardian, and so you knew that this was either not a state where pregnancy is an emancipating issue, or the girl never applied to be emancipated, or applied but was denied.

The fact of the pregnancy was therefore legally irrelevant.

But, again, let’s expand the issue and suppose that she actually was emancipated through her pregnancy and so legally capable of giving consent.  Would that end the matter?

The answer there is, “Perhaps.”

Consent by any patient is based on layers of legal status.  The first is their baseline legal capacity through age or emancipation to enter into a binding agreement.  The next is their baseline mental competence to engage in the process. Beyond these issues, though, is their decisional capacity: Do they understand their condition, and can they assess the risks and benefits of the medical options? An emancipated minor may have the first and the second but not be able to exercise the third in the moment because, after all, they are a frightened kid or just lack enough education and life experience to do so.

Whether or not consent can be validly given is subject to the practitioner’s professional assessment, so just as you could not accept the decision of a chronologic adult who is not able to understand treatment issues, you could not do so when dealing with an emancipated minor who lacked that understanding. In that situation, you would use the same options, getting the Legal Department or a patient advocate involved to set up a substitute or using a two-physician consent, that you would use with a chronologically adult patient who could not provide a valid consent for themselves.

Finally, there is one last issue when dealing with older minors: even though they cannot give consent, if they can understand the situation, they should be involved in the process as an ethical matter. If they dispute the consent being given for them, then they should be directed to Administration for any next steps. However, as the treating physician, you can only be an explainer and cannot add to the decision.

Check out Dr. MedLaw‘s prior Q&A columns regarding navigating the complexities of a salary structure shift, and breaking down indemnification clauses, and watch for future columns addressing liability risks for on-call telephone consultations and how to avoid a regulatory kickback claim.

Any views and opinions expressed are those of the author(s) and/or participants and do not necessarily reflect the views, policy, or position of Physician’s Weekly, their employees, and affiliates.