Ask the ExpertIn each publication of Risk Review, an outside guest or a member of our team of expert riskmanagement and loss prevention consultants will answer a question from a reader. If youare concerned about a risk management or safety issue at your practice or facility, let usknow and we may answer it in a future issue.

Treatment of MinorsBy Karen J. M. Savage, Esq. & Carolyn R. Sleeper, Esq.Attorneys specializing in medical malpractice

The treatment of unaccompanied minorspresenting to a physician for treatment, whetherin the context of an Emergency Department,health care facility or office, has far reachingimplications. The concept of informed consent or informed choice is muchbroader than the paper signed by a patient. The doctrine encompassesmedical treatment and the physician must disclose to a patient probablerisks, benefits and all medically reasonable course of treatment.

The provision of emergency care for minors without the consent of aparent or guardian, under EMTALA, the Emergency Medical Treatmentand Active Labor Act, requires a medical screening for anyone whopresents to an Emergency Department, including unaccompanied minors,to determine whether an emergency medical condition exists. (PediatricsVol. 111 No. 3 March 2003, pp 703-706). EMTALA, as a federal law,preempts conflicting or state laws, thus, provision of emergency treatmentfor minors without a consenting parent or guardian is essentially renderedmoot. If an emergency condition exists, EMTALA requires stabilizationand if necessary, transfer to an appropriate facility. If an emergencymedical condition is not identified, then the EMTALA regulations no longerapply and consent of the minor’s parent or guardian should be sought.(Id.)

Of course, the determination of what constitutes an “emergency medicalcondition” can be cause for debate. This is a challenge that is currentlyunder review by the New Jersey Supreme Court in a case involving theinsertion of a chest tube in an emergency department for pneumothorax.Legouri v. Elmann, et al, 188 NJ 485 (2006). The minor patient was

unconscious and the physician proceeded without obtaining consent offamily members. The plaintiff’s attorney argued that although prompttreatment was necessary, it was not so emergent as to precludecommunication with the family. As one family member was a physician, itwas also argued that they would have selected a physician with moreexperience to insert the chest tube. The New Jersey Supreme Court willbe rendering a decision as to whether every medical issue obviates theneed for informed consent. Id.

But what about the murky realm of a minor who presents for treatmentand may not necessarily require emergent care, however does requiretreatment. Afterall, a minor is considered to be incompetent in the realmof informed consent and legal decisions. In situations involvingadolescents and teenagers, there is often a conflict between theprinciples underlying the informed consent doctrine and the principlesunderlying the patient’s right to confidentiality. Although common law andstatutory law has supported physicians in providing emergency care forminors in the emergency department, there are areas worthy of furtherdiscussion.

A minor female has come seeking an abortion. Do I have aduty to inform her parents or guardian?

March 2007

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No. A minor female’s fundamental rights are not extinguished by virtue ofnot having attained the age of majority. New Jersey addressed this issuein the New Jersey Supreme Court case of Planned Parenthood of CentralNew Jersey, et al v. Farmer, 165 N.J. 609 (2000), following the ParentalNotification for Abortion Act (N.J.S.A 9:17A-1.1 et. seq.) The Act required aphysician to wait at least 48 hours after written notice about a pendingabortion to the unemancipated minor’s parents. The Court held the Actunconstitutional and found that it burdened the fundamental right of awoman to control her body and destiny. Additionally, the State did notprovide adequate justification distinguishing between minors seekingabortions and those seeking pregnancy related care, thus, the Act violatedthe minor’s right to equal protection set forth in the New JerseyConstitution.

A minor female has come seeking pregnancy related care. Do Ihave a duty to inform her parents or guardian?

No. The minor female maintains the same rights related to confidentialityas any person who has achieved the age of majority. N.J.A.C. 13:35-6.5provides that the minor is deemed his/her own authorized representativewhen the condition being treated relates to pregnancy, sexuallytransmitted disease or substance abuse.

Can a minor consent to the prevention of pregnancy?

Yes. Although there is no specific New Jersey statute that specificallyauthorizes a minor to consent to contraceptive care, a minor maintains thesame rights as an adult. Under Title X of the of Public Service Act, thoseproviders who receive Title X funds must provide contraceptive carewithout requiring consent or notification of the minor’s parent or guardian.Title X is a federally based program solely dedicated to family planningand reproductive health. Services are delivered through hospitals, clinics,health care centers, and state and local health departments. Congressenacted Title X for the purpose of providing comprehensive familyplanning services to all, including minors. 42 U.S.C.A 300, note 4.

A minor, seeking treatment, appears to have been sexuallyassaulted. Do I have a duty to notify her parents or guardian?

Yes and No. New Jersey statute, specifically N.J.S.A. 9:17A-4, providesthat in the case of a minor who appears to have been sexually assaulted,and who is at least thirteen (13) years of age may consent for treatment,however it also states that parents or guardian of the minor must benotified immediately unless the attending physician believes it is in thebest interests of the patient not to do so. Failure to locate the parent orguardian however, does not preclude rendering necessary emergencytreatment.

Do I have a duty to report the incident of sexual assault to thepolice?

No. A victim of sexual assault should be provided with a rape counselorwho will ensure that all communications between the victim and the rapecounselor are confidential. N.J.S.A 2A:84A-22.15 provides for suchconfidential communications. Pursuant to N.J.S.A. 52:4b-22, hospitalsmust afford the victim an opportunity to contact a rape care advocate priorto investigative, medical and forensic procedures occurring. Additionally,

the victim may have the advocate present during the evaluation. Theadvocate will ensure that the victim is fully cognizant of her options toreport the sexual assault to the authorities.

Do I have a duty to report the incident to the Division for Youthand Family Services (DYFS)?

Maybe. If you have reasonable cause to believe the minor was sexuallyassaulted by a caretaker, co-inhabitant, or someone in a supervisory role,then you must contact the Division for Youth and Family Services.

A minor presents for treatment for a venereal disease. Do Ihave an obligation to inform the minor’s parents or guardian?

No. By New Jersey statute, minors, who are at least thirteen (13) years ofage and believe that s/he may be afflicted with a venereal disease, mayconsent to treatment. Specifically, N.J.S.A 9:17A-4 asserts that anyconsent rendered by the minor is considered binding and would not besubject to disaffirmance by reason of minority.

A minor presents under the influence of drugs and/or alcohol.Do I have a duty to inform his/her parents or guardian?

No. Consent for treatment for drug use, drug abuse, alcohol use or alcoholabuse by a minor is as binding as if a person who had reached the age ofmajority and requires the consent of no other person, including parents orguardians. Treatment consented to, by the minor, is confidentialinformation between the physician, treatment facility or provider and theminor. N.J.S.A 9:17a-4

What if a minor who has overdosed is brought to theEmergency Department, requires stabilization and treatment?Do the same rights apply?

Yes. You do not require the consent of a parent or guardian, as long asthe medical or surgical treatment provided is for the minor’s drug use,drug abuse, alcohol use or alcohol abuse. Specifically, N.J.S.A. 9:17A-4provides that when a minor believes that s/he is suffering from the use ofdrugs and/or alcohol or is dependent on drugs and/or alcohol, s/he mayconsent to confidential treatment, as long as the treatment provider is alicensed physician, licensed or certified alcohol treatment specialist orlicensed treatment facility, just as if s/he had attained the age of majority.

A minor has mental health issues and requires treatment. Isthere a duty to inform his/her parents or guardian?

Yes. Typically, minors in New Jersey have the right to consent, on theirown, to treatment involving contraception, pregnancy, abortion, sexuallytransmitted diseases and substance abuse. Mental health issues fallsoutside those defined parameters and requires parental notification.

The minor is insured through a parent’s or guardian’s privatehealth coverage. Can I still ensure confidential treatment?

No. Minors must be aware that if they are covered under their parents’health insurance and s/he intends to utilize it for payment for servicesrendered, a statement of benefits may be sent, as a matter of course, by

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the insurance company to the policy holder. Additionally, some insurersmay not authorize payment for treatment rendered to an unaccompaniedminor.

The minor child is obtaining treatment for pregnancy,contraception or abortion care using Medicaid. Isconfidentiality ensured through this insurance?

Yes. Federal laws protect the minor receiving family planning treatmentand care for services obtained under Medicaid. Those health facilities thatreceive federal funding under Title X of the Public Health Services Actmust provide confidential family planning services to minors.

I have reason to believe that the minor is being physically orsexually abused. What are my obligations to report?

You must immediately report. Under N.J.S.A. 9:6-8.10, an “abused child”is defined as any minor under the age of eighteen (18) whose parent,guardian or someone in control subjects the minor to harmful acts oromissions of care. This may include, but is not limited to, the failure toprovide the basic necessities of adequate food, clothing, shelter, excessivecorporal punishment, excessive physical restraint or willful abandonment.New Jersey statute requires any person who has reasonable cause tobelieve that a child is being abused to immediately contact the Division forYouth and Family Services.

A child who is accompanied by a parent or guardian requestsconfidential treatment. What are my obligations to inform theparent?

This is a murkier situation to maneuver. Although you may follow theguidelines above, the physician should be assessing the minors age,maturity and level of understanding. Ambiguities in the rights of minors toobtain confidential medical treatment may be resolved by getting a parentor guardian to assent to an agreement of confidentiality. ACLU: Guide toMinors’ Right to Confidential Reproductive Healthcare, January 2006,citing 42 U.S.C 300(A)L 42 C.F.R. 59.5(a)(1); 42 U.S.C. 1396D(a)(4)(C). Inthose instances, a federal privacy regulation specifically protects a minor’sright to confidentiality when a parent or guardian signs a waiver of assent.(Id.)

Treating minors can be a confusing endeavor, particularly when renderingcare for services where they may have the authority to consent totreatment. At times, state law may be preempted by federal law, or betrumped by the minor’s Constitutional rights. At this juncture, minors havethe right to render consent for treatment in a number of situationsincluding those services involving contraceptive counseling and services;abortion; pregnancy related medical care; testing and treatment forsexually transmitted diseases; and treatment for sexual assault. However,it is important to assess the minor’s judgment, maturity and implications ofthe treatment sought and the ultimate goal of providing timely andappropriate care.v

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