Ethics In Emergency Medicine Ethics In Emergency Medicine

Alan Meisel, J.D.

From: Ethics In Emergency Medicine, Second Edition

Iserson KV, Sanders AB, Mathieu D (Editors)

ISBN 1-883620-14-7
$39.95 Soft Cover
589 pages, Bibliography, index
©Galen Press, Ltd., Tucson, AZ, 1995

Case 6- 7
An eight-year-old boy walks into the ED saying he was riding his bicycle home from school and fell on his wrist. He lives only two blocks away, and because his wrist hurt, he decided to stop by the ED to determine whether it needs any treatment. The admitting clerk attempts, but is unable, to reach his parents. The policy of this particular hospital is that minors may be seen and treated, even without parental consent, if two physicians declare a situation to be a medical emergency.
What should be done with this patient? Should a physician evaluate him in the waiting room? Should a nurse take his vital signs? If they determine that the wrist is injured, but it is not a true medical emergency, should they send the child home and ask him to return later with his parents? Alternatively, should he be x-rayed and treated appropriately, even if this Involves reduction of a fracture and casting without parental consent?

Case 6-8
A 15-year-old boy comes to the ED because he thinks that he has venereal disease. He does not want his parents to know, so he asks the admitting clerk not to call them for permission to treat. He says he will pay for the emergency visit with his own money.
Editors' Comment: Emergency Department staff generally call parents for permission to treat any minors who present "to them. In the case of a potential medical emergency, however, a physician may treat a patient even without parental consent. In this case, the emergency physician may elect to declare such an emergency and begin to treat the patient. Venereal disease, however, is generally not considered a true medical emergency and, ordinarily, time can be taken to reach the parents to obtain their permission for treatment.

As a general rule, parents have the right to make decisions about the health care services that their minor children do or do not receive. (The legal definitions of "minor" and "child" vary from state to state. Emergency professionals are expected to know their state's definitions.) This authority derives from the more general authority that parents have over their children to decide things, large and small, such as where they will live, what they will eat, where or whether they will worship, and whether they will be educated in public or private schools.
As a corollary, minor children do not have the right to make the very same decisions about their own health care. If they rebel at the idea of inoculations, surgery, or orthodontia, their parents have the authority to impose such things on them anyway-along with religion, schooling, spinach, and ballet classes instead of television-if that is the parental choice. These, of course, are general rules, and as the term suggests, there are a number of exceptions to these rules, as well as broad limitations on parental authority. Such control ends where child abuse or neglect begins-a rule simpler to state than to define but worth noting nonetheless. Parental authority also gradually diminishes as the child's [capacity to make responsible decisions increases, not only as a matter of law but also as a practical matter. And, without a parent to make a necessary decision when one must be 'made immediately to avoid harm to the child, necessity dictates that decisions be made by others, on behalf of the parents, for the benefit of the child. Sometimes this authority is expressly delegated, such as when a parent enrolls a child in a boarding school; at other times it is implicitly delegated, such as when the child is in the custody of a baby sitter, relative, or neighbor.
The law requires that parents make decisions that are in the "best interests" {however vaguely defined the term may be) of their children. Anyone acting in place of the parents, whether selected by them, imposed by the state, or resulting from circumstance, is required to be guided by the same standard.

Informed Consent Requirement
When a person being treated by a physician is an adult, the administration of treatment without that person's consent is a legal wrong-specifically, a "battery." The physician may be liable to the patient not only for any harm that may have been occasioned by the treatment, but also, even if there is no harm, for the act of non-consensual treatment which is regarded as a legal injury (though the damages awarded may be nominal). Further, even if consent is obtained, it is not legally effective if the physician has not explained, before treatment, the relevant therapeutic or diagnostic options and the risks and benefits of each-that is, if the physician has failed to obtain "informed consent. Failure to provide required information is a type of negligence for which damages may be imposed if the patient is injured and if treatment would have been refused had proper information been provided. The same is true in the case of a minor child, except that it is a parent, rather than the child, who must be informed and who must give consent before treatment is rendered.
There are a number of situations in which, depending upon the nature of the situation, one or both of the legal requirements to disclose pertinent information and to lain consent may be disregarded. The relevant exception examined here is for medical emergencies. The rationale for non-disclosure or not obtaining consent in an emergency that any delay could seriously compromise the health or life of the patient. If the patient is unconscious, consent can and should be sought from (and disclosure made to) patient's legal representative, if taking the time required to do so will not jeopardize the patient's well-being. If the patient is conscious, but time is still critical, there may be situations in which consent should be sought from the patient but no disclosure made. If, however, there is adequate time to make disclosure and obtain consent without serious jeopardy to the patient, informed consent must be obtained; for legal purposes, it is not "emergency."

Consent for Minors
Treatment in a hospital ED often falls into the gray area between emergency and elective procedures. In such situations, common sense should rule but often does not, especially in the treatment of minor children. Children are, by hospital policy, often kept waiting for hours until parents at work or who are traveling can be contacted to authorize treatment. Sometimes, parents cannot be located even after monumental efforts, so consent is obtained from a distant relative on two common, but often mistaken, assumptions: (a) that consent from some relative is an absolute prerequisite to treatment unless the child will die without it, and (b) that the consent of a relative is acceptable (table 6).
In fact, hospitals need only make reasonable efforts to obtain parental consent [ore medical personnel render standard, accepted medical treatment for an injury or suspected injury to the child. Furthermore, obtaining consent from another relative will not shield the hospital or the physician from liability if they render standard or nonstandard treatment in a negligent manner.

Table 6: Consent for Minors
a. Parental consent is not required for emergency treatment.
b. State laws may allow minors to be treated for venereal diseases, drug and alcohol abuse, mental illnesses, a~d rcproductive matters without parental consent.
c. Mature minors may authorize their own medical treatment.

Need for Evaluation of Injury

There should be no disagreement here that the child must receive, at least, a minimal medical evaluation of his condition to determine whether treatment is urgently needed. This evaluation must be conducted by properly trained personnel. Thus, a clerk's determination that the child should go home and return later with his parents is extremely risky from a legal perspective if it turns out that he does need immediate treatment. The evaluation need not be conducted by a physician if there is a nurse or a physician assistant who can determine the urgency of the need for treatment. However, if the hospital's policy or custom to have a physician evaluate patients, failure to do so be grounds for a lawsuit.
If the initial evaluation requires more than a physical examination, such as an x-ray, should it be taken even without parental authorization? The answer must be yes if the x-ray is necessary to rule out the need for emergency treatment. Since there is no parental consent, however, the administration of the x-ray is technically a battery. I believe, though, that there is a legal way to perform the x-ray, which would relieve the physician hospital of liability. If the parents were available and refused to permit the x-ray necessary to determine whether further treatment was needed, the parental failure to permit the x-ray could easily constitute grounds for child neglect. In such a case, either a state administrative agency (for example, child welfare agency) or a court would order the x-ray be taken. Thus, the x-ray should be permissible even in the absence of the parents.
This line of reasoning cannot, however, be used to justify more thorough treatment of the child should it be needed. If treatment is urgently needed, it may be given legally under the emergency exception to the requirements for consent or informed consent. If, by contrast, further treatment is needed but not urgently so, the parents ought to be consulted so that they may exercise any preferences they might have as to the time, place, and manner of treatment. They may wish to select their own physician. Or they belong to an HMO, which will pay for treatment only in a different hospital. Perhaps there is a choice of treatments available. If so, it is the parent's prerogative to e a decision based on their own values or their knowledge of their child's concerns. One treatment may be more painful than another; one may be more disfiguring; one may !lore likely to succeed. The trade-off among these concerns is a matter for the parents, not for the medical authorities.

In the case of the youngster who fears that he has venereal disease, slightly different principles must apply. The delay necessary to obtain parental consent will not, in itself, harm the child, but if the hospital insists on parental consent, the child may simply leave without obtaining treatment at all. Whether this will lead to any harm to him is impossible to say, since we do not know if he has venereal disease or whether, if he leaves now, he will obtain treatment later anyway.
Again, the evaluation of the child ought to be undertaken at his own request without parental involvement. This is so, in part, because the risks to the child seem greater if he is turned away than if he is evaluated and, in part, because at age 15 he is close to being mature enough to make such decisions for himself. That he has sought care on his own initiative testifies to that fact. A number of states permit "mature minors" to authorize their own health care in some circumstances.
If he does not have venereal disease, there is no need to notify his parents. If he does have venereal disease, he should be informed that he does, and given the options for treatment. At that point, he should be asked for his permission to notify his parents so that treatment can be discussed with them. If he refuses this, even after trained personnel make all appropriate efforts, he should receive treatment without parental notification or authorization only if the treatment has no substantial side effects. If, however, the treatment poses risks as well as benefits to the child's health, his parents should be consulted even without his permission.
Some states have statutes that specifically authorize children to consent to treatment for venereal disease. Emergency department staff must be aware of such statutes-as well as of similar statutes for the provision of drug and alcohol abuse services, mental health services, and contraceptive services, and of more general statutes authorizing children to consent to health care in a wider variety of situations. The existence of such statutes and an understanding of them may decide such problems easily.
My analysis supports the conclusion that the law, as it bears on these cases, is sensitive to the basic ethical values of parental rights, the protection of minors, and patient confidentiality, and that it provides sufficiently flexible guidance. Any impression that good patient care and the physician's legal responsibilities are in conflict here can be convincingly dispelled by a proper understanding of the law.


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