Adolescent Consent: Medical Information Privacy and Consent for Treatment

Generally, adolescent patients cannot give consent for their own medical treatment before they reach the legal age of majority which, in most states, is 18. The circumstances in which adolescent patients can consent to their own medical treatment vary by state. However, most states have consent exceptions based on an adolescent’s legal status (e.g., married, emancipated) and select medical conditions (“sensitive medical conditions”). Sensitive medical conditions are those for which adolescents presumably are less likely to seek treatment if doing so requires them to disclose the medical condition to their parents. Such circumstances might include treatment for sexually transmitted infections (STIs), pregnancy, family planning, substance abuse, and mental health.¹

Consent and confidentiality laws provide a framework within which to consider a particular clinical situation. Clinicians must consider each adolescent consent and/or privacy issue on a case-by-case basis.² Many states allow clinician discretion in making a decision that is in the best interest of the adolescent patient.¹ Consequently, it is important to know the adolescent consent and privacy laws that apply in your state. It is important to obtain sufficient information from parents and patients to counsel both parties in a manner that is consistent with clinical and ethical guidelines and furthers the patient’s treatment goals.

A proactive approach to patient and parent education about changes to decision-making autonomy and privacy that occur at adolescence can reduce parent/adolescent/clinician conflict. It is important to remember that adolescent consent and privacy will be novel concepts for many patients and their parents. Providing educational materials, developing and adhering to adolescent consent and privacy policies and procedures, and encouraging open lines of communication can help set appropriate patient and parent expectations. Practices that treat adolescent patients often find these areas challenging relative to obtaining consent:

• Drug testing
• Exams of private or sensitive areas
• Treating adolescent patients who come to their appointment unaccompanied
• Treatment of patients brought to their appointment by someone other than a parent or guardian (i.e., third-party consent)

Many states allow third parties (e.g., relatives and nannies) to consent to a minor’s medical treatment if the parent’s/guardian’s authorization is already in place. In these situations, a minor’s parent/guardian may sign a statement authorizing a third party to consent to medical care if the minor’s parents/guardians will not be available.

Case Study

Issue: A 16-year-old patient’s caregiver was available to consent for treatment, but she was not a legal guardian.

A child psychiatrist scheduled a new patient visit with a 16-year-old female. During the intake process the physician learned that the patient resided with an aunt and that her parents’ whereabouts were unknown. The physician was concerned about who could consent if the teenaged patient presented a need for prescribed psychotropic medications. Pursuant to state law, the aunt signed an affidavit allowing her to act as caregiver for the patient. Consultation with Risk Management helped the physician determine that patients 15 years old or older in the state could consent to nearly all their own medical care, except for psychotropic medications. However, pursuant to probate and child welfare laws of the state, the caregiver affidavit permitted the aunt to consent to necessary medical treatment including “mental health treatment.” Further, the same state law included protection against civil, criminal, or professional liability for a physician acting in good faith reliance upon a caregiver’s authorization affidavit. Therefore, in this case, the physician felt comfortable that if psychotropic medications were indicated for the new patient the aunt could consent on her behalf.

Discussion

Unless an adolescent patient has a legal right to consent to proposed treatment, or there is a third-party authorization for consent on file for the person accompanying the minor, any non-urgent diagnostic and treatment decisions should be delayed until informed consent can be obtained from a parent/guardian.³ In general, medical care that is “necessary and likely to prevent imminent and significant harm” to a minor patient can be provided if parental consent is not possible.³

Risk Reduction Strategies

Careful planning and sound office policies and procedures can help prevent situations where clinicians and staff will be tempted to treat an adolescent patient without proper consent. Consider the following strategies:^3,4

• Review state laws related to consent for minor healthcare, and only adopt policies and procedures consistent with those laws.
• Educate physicians and staff about consent policies and procedures.
• Discuss the risks, benefits, and alternatives with the person authorized to consent.
• Document in the minor’s medical record who consented, who obtained the consent, manner obtained (in-person, by phone, etc.) and who witnessed it.
• If the practice will allow third-party consent, create a third-party consent policy.
• Consider creating a template form that can be used for third-party consent. The American College of Emergency Physicians’ Consent for Medical/Surgical Care/Emergency Treatment and Child’s Medical Information form⁵ may be helpful as a sample.

Adolescent autonomy and privacy are affected by a tangled web of state and federal laws which clinicians are expected to know and abide by. With these laws as a guide, the process of working through the sometimes-competing interests of adolescents and their families should focus on promoting the well-being of the adolescent patient.⁶ Policies and procedures should be consistent with the laws but allow flexibility to accommodate unanticipated scenarios. Proactive conflict management during this period in the patient’s healthcare journey is accomplished through parent and adolescent patient education about changes that occur in patient autonomy and privacy at adolescence. This education can diminish stress and frustration for patients, parents, and clinicians. When in doubt about an adolescent issue, a physician or other practitioner can look to the Risk Management department or contact a healthcare attorney for legal advice about their own state’s laws.

References

1. Amy L. McGuire and Courtenay R. Bruce, “Keeping Children’s Secrets: Confidentiality in the Physician-Patient Relationship,” Houston Journal of Health Law & Policy 8 (2008 Adolescent Consent: Medical Information Privacy and Consent for Treatment. https://www.law.uh.edu/hjhlp/volumes/Vol_8_2/McGuire.pdf
2. American College of Emergency Physicians, “Evaluation and Treatment of Minors: Policy Resource and Education Document,” revised 2021. https://www.acep.org/siteassets/new-pdfs/preps/evaluation-and-treatment-of-minors---prep.pdf
3. Paul E. Sirbaugh et al., “Consent for Emergency Medical Services for Children and Adolescents,” Pediatrics 128 no.2 (August 2011). https://doi.org/10.1542/peds.2011-1166
4. Gary N. McAbee et al., “Consent by Proxy for Nonurgent Pediatric Care,” Pediatrics 126, no.5 (November 2010). https://doi.org/10.1542/peds.2010-2150
5. “Consent for Medical/Surgical Care/Emergency Treatment and Child’s Medical Information,” American College of Emergency Physicians (Website), accessed July 10, 2023. https://www.acep.org/siteassets/uploads/uploaded-files/acep/clinical-and-practice-management/resources/pediatrics/medical-forms/consent.pdf
6. Timothy M. Smith, “Pediatric Decision-Making: Help Parents Protect, Empower Kids,” citing American Medical Association, Code of Medical Ethics, Opinion 2.2.1, 2019. https://www.ama-assn.org/delivering-care/ethics/pediatric-decision-making-help-parents-protect-empower-kids