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Informed consent for minors is a big issue in the ED

Statutes and exemptions can guide RNs in these situations

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By Nancy J. Brent

MS, JD, RN
Is a whistleblower always legally protected?

The doctrine of informed consent for treatment is a long-standing one in the history of medicine, nursing, ethics and law. The doctrine is a simple one — an adult individual has a right to give informed consent for treatment after receiving all pertinent information needed to make an informed choice.

Be familiar with the exemptions
This doctrine was established in the landmark case,
Salgo v. Leland Stanford Jr. University Board of Trustees
(1957). In addition, common law and statutory law — including the U.S. Constitution’s protections of privacy, liberty and religious freedom — augmented this right. In the U.S., informed consent for minors — generally defined in state laws as those 17 and under — is given by parents or authorized legal guardians. Termed the “general rule,” state common laws and statutory laws have carved out exclusions to the rule. These exceptions allow the treatment of minors without parental consent and are based on instances often seen in the ED. Currently, every state has passed consent for minors’ statutes that include some or all the exclusions of the “general rule
.”
  • Married minor
  • Pregnant minor (for herself and the fetus, and retains the right to consent for the infant but not herself, unless she fits into one of the other exceptions)
  • Minors over a specific age, 12 years of age as an example, for sexually transmitted disease, HIV
  • testing, AIDS treatment and substance use disorder treatment
  • Emancipated and mature minors, as defined by state law (e.g., in the military, living apart from parents)
  • Minors seeking birth control services, as provided by state law
  • Minors seeking outpatient mental health services or inpatient voluntary admissions to a psychiatric facility (some states require notification — not consent — of the parent or legal guardian)
  • Any emergent medical condition where delaying treatment for the purposes of obtaining consent would result in injury or death of the minor
As an ED nurse, you also must consider the Emergency Medical Treatment and Active Labor Act, a federal law mandating any ED receiving Medicare and Medicaid funds must perform a medical screening examination and stabilize the patient/minor, regardless of consent and regardless of whether the individual/minor can pay for ED services. You cannot be held individually liable for a violation of EMTALA. Even so, it is estimated 20% of EMTALA violations are due to ED nurses by, as an example, making a comment to a teenager to “go to the hospital down the street” (because of a long waiting time at the facility). Such a comment can result in a violation for the hospital. Fines up to $50,000.00 per violation are possible. Although individual liability under EMTALA is not possible, as an ED nurse you can be disciplined by the state board of nursing and/or terminated from employment because of violations that are attributed to the hospital ED,
according to an article
. And, if an injury or death occurs because of your comments or conduct, you can be named as a defendant in a professional negligence suit. Implications for you as an ED nurse are copious. Whether you practice in a children’s hospital ED or a regular ED, you need to reflect on your own role when working with minors and unaccompanied minors and the ED’s overall policies and procedures.
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Be well-versed on EMTALA
The following is a list of the U.S. exemptions that provide the authority to treat a minor without the parental or legal guardian consent when the minor presents in the ED or elsewhere unaccompanied:
These exceptions are important when one reviews statistics of minors and unaccompanied minors seen in the ED. In 2016, for example, nationwide statistics indicated minors under the age of 18 comprised 21% of
ED visits
. Other statistics are telling as well. In a
2018 Annals of Emergency Medicine article
, the authors cite numbers documented by other authors showing 45% of adolescents with serious head injuries come to the ED without a guardian to legally provide consent for a medical evaluation and treatment, day care or school personnel may accompany younger minors to the ED, and immigrant children living in the U.S. rarely have a legal guardian to consent to health care. Even so, most minors seen in an ED are treated in non-children’s hospital EDs, with 50% of EDs providing care for fewer than 10 children per day. These facts indicate that the “infrequent exposure” of ED nurses and other personnel to ill or seriously injured minors results in difficulty providing quality, skilled care to those minors, according to a 2009 American Academy of Pediatrics
joint policy statement
.
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EDITOR'S NOTE:
Nancy J. Brent, MS, JD, RN, brings more than 30 years of experience to her role as Nurse.com’s legal information columnist. Brent’s posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state.