by Ann McNary, JD
Ms. McNary is Senior Risk Manager at PRMS, Inc. in Arlington, Virginia.
Innov Clin Neurosci. 2016;13(9–10)53–55.
This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. We invite questions from our readers. The answers are provided by PRMS, Inc. (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation, education and onsite risk management audits, and other resources to healthcare providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers may provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney. Note: The information and recommendations in this article are applicable to physicians and other healthcare professionals so “clinician” is used to indicate all treatment team members.
How often do you need to update minor consent? Do you need to have a minor consent for treatment signed every time a minor has an office visit if the parent is with the minor, or will a normal consent suffice?
In order to properly answer this question, it probably makes sense to first discuss the concepts of consent and informed consent and the difference between consent and consent forms.
As we all know, a patient’s consent (or that of a parent or guardian) is typically required prior to all medical treatment. (There are exceptions of course but those are best addressed in another column.) The form of this consent will depend upon the nature and type of treatment being given. For example, when a patient is first seen in a psychiatrist’s office, the patient will usually sign a form indicating that he or she is consenting to being seen and evaluated. As it is generally understood what an evaluation will entail and as there are few risks if any, a simple statement acknowledging consent to the evaluation is sufficient. Likewise, if a patient is to begin therapy, a therapist might initially have a patient sign a form wherein the patient gives consent to receive therapy. Thereafter, as the patient continues to return for appointments, ongoing consent is implied and it is not necessary to have the patient specifically provide consent each time.
When risks or new risks are introduced, such as when treatment involves the use of medication, there is then the need to ensure that a patient (and in the case of a minor, typically also a parent or guardian) is apprised of the potential risks and benefits of treatment prior to being asked to give consent. In other words, the consent given must be informed. In order to have enough information to make an informed decision, the patient must be aware of the following:
1. The nature of the proposed treatment
2. The risks and benefits of the proposed treatment
3. The alternatives to the proposed treatment
4. The risks and benefits of the alternative treatments
5. The risks and benefits of doing nothing
Because many medications used for children and adolescents are prescribed off-label, it is also important to note this fact, making sure that the parent or patient understands that this does not mean the medication is experimental. In addition, they should be made aware of any black box warnings.
Remember that informed consent is an ongoing process; it is not a piece of paper. What is key to establishing informed consent is the documentation of the process by which the psychiatrist educates the patient about potential risks of treatment. This documentation may include the use of a consent form; however, a consent form should never take the place of the documentation of the communication process itself.
Because informed consent is an ongoing process, a psychiatrist should continue to monitor the patient’s response to medication or other treatment and the patient’s and/or parent’s desire regarding its continued use. This discussion should also be documented in the patient’s chart. If a psychiatrist elects to use a written consent form, it is not necessary to have it re-signed at each appointment; however, he or she may wish to have a new consent form signed as different medications are introduced.
In addition to the legal requirements to obtain informed consent, psychiatrists must consider the ethical requirement to obtain a minor’s assent to treatment. As stated in the American Academy of Child and Adolescent Psychiatry Code of Ethics, Principle IV: Assent and Consent (Autonomy):
“Guardians are responsible for the health and welfare of their children. Children and adolescents, however, should play a role in determining the services they receive and their participation in treatments to the extent of their capacities to understand options and act rationally. The right of assent to or dissent from treatment belongs to the individual child or adolescent of minor age. The child and adolescent psychiatrist shall, whenever reasonably possible, obtain the assent of the minor and the consent of the legal guardian prior to engaging in actions involving the child or adolescent.”
I practice in a state where minors may consent to their own psychiatric treatment, including the prescription of medications. I am treating one such patient who is sporadic when it comes to keeping appointments, and I am not certain she is taking her medication as prescribed. I would really like to get her parents involved in her care. Can I make this a condition of treatment?
Yes. Many states’ statutes have now been written to allow minors to give consent to mental health treatment. With these laws in place, minors now have greater access to care. While this is certainly a benefit for minors, it can make things complicated for the psychiatrists who treat them.
Just because a minor has the legal right to consent to his or her own treatment, it does not mean that he or she has the mental capacity to give informed consent. Before receiving care upon his or her own consent, a minor must also possess the ability to understand the risks and benefits of the treatment being proposed. The psychiatrist who treats a minor solely based upon age ignoring this puts him or herself at risk.
Another concern is that of confidentiality. Confidentiality and the right to consent to treatment go hand in hand. Thus, if a minor is allowed to consent to his or her own treatment, the minor is entitled to confidentiality regarding that treatment. This may put a psychiatrist in a difficult spot when treating a minor who possesses the intelligence to comprehend the risks and benefits of treatment but lacks the maturity to follow through with it. This may mean that the patient skips appointments, is not consistent with medication, or ignores recommendations for such things as therapy or follow up lab work. At best, the minor’s actions may be frustrating. At worst, they may pose a risk both to patient and psychiatrist. Under these circumstances, it is absolutely appropriate to make it a condition of treatment that the psychiatrist be allowed to communicate with parents or that they be involved with treatment.
I’ve been treating a child whose parents are divorced. The mother has custody, and until very recently the child’s father lived in another state and was not involved in treatment. Now he has returned to the area and is not happy that his child is seeing a psychiatrist. He is demanding that I stop treatment. Must I do so?
When a couple divorces (or legally separates), there are two types of custody that are granted to parents: residential and legal. Typically one parent will have primary residential custody of the child with visitation being granted to the other. Legal custody, which grants in part the right to consent to a child’s healthcare and to obtain information regarding the same, is most often awarded jointly; however, a court may put limitations or requirements on that authority, which will be spelled out in a divorce decree or custody agreement.
Anytime you begin treatment of a minor child of divorced parents (or if the parents divorce during treatment), you should make an effort to determine which parent(s) has the legal right to consent to treatment and to what extent each must be involved in the decision-making process. Do not presume that just because one parent brings a child to an appointment that he or she has the right to consent or that he or she has the sole right to consent to treatment. Always ask for a copy of any court documents parents may have that set forth their individual rights. (Note the same advice, asking for court documentation of authority, applies if minor patients are under the care of guardians.)
If both parents have the right to consent to healthcare, you can treat the child upon the consent of one parent but you should still try to obtain the consent of the other. Having both parents onboard helps to ensure consistency in care (particularly if medication is being prescribed), which leads to improved patient safety and better outcomes. Often, psychiatrists find that the objecting parent will come around when he or she is given information and made a part of the treatment process.
Another related issue is that of step-parents bringing a child in for treatment. Each parent can grant permission to have his or her respective spouse bring the child to appointments but if there is the need for actual consent to treatment (such as when a medication change is being made) then the actual parent should be involved.
1. American Academy of Child and Adolescent Psychiatry. Code of Ethics. September 2014. https://www.aacap.org/App_Themes/AACAP/docs/about_us/transparency_portal/aacap_code_of_ethics_2012.pdf. Accessed September 1, 2016.