NOTE: The UW Dept. of Bioethics & Humanities is in the process of updating all Ethics in Medicine articles for attentiveness to the issues of equity, diversity, and inclusion. Please check back soon for updates!
Author:
Douglas S. Diekema, MD, MPH, Adjunct Professor, UW Dept. of Bioethics & Humanities
Topics addressed:
- Who has the authority to make decisions for children?
- What is the basis for granting medical decision-making authority to parents?
- When can parental authority to make medical decisions for their children be challenged?
- What are some examples of a decision that places a child a significant risk of serious harm?
- What if parents are unavailable and a child needs medical treatment?
- Should children be involved in medical decisions even though their parents have final authority to make those decisions?
- What happens when an older child disagrees with her parents about a medical treatment?
- Under what circumstances can minors make medical decisions for themselves?
- Is there a resource that summarizes the various state laws regarding adolescent consent?
Adult patients have the moral and legal right to make decisions about their own medical care. Because young children are not able to make complex decisions for themselves, the authority to make medical decisions on behalf of a child usually falls to the child's parents.
Who has the authority to make decisions for children?
Parents have the responsibility and authority to make medical decisions on behalf of their children. This includes the right to refuse or discontinue treatments, even those that may be life-sustaining. However, parental decision-making should be guided by the best interests of the child. Decisions that are clearly not in a child's best interest can and should be challenged.
What is the basis for granting medical decision-making authority to parents?
In most cases, a child's parents are the persons who care the most about their child and know the most about him or her. As a result, parents are better situated than most others to understand the unique needs of their child and to make decisions that are in the child’s interests. Furthermore, since many medical decisions will also affect the child's family, parents can factor family issues and values into medical decisions about their children.
When can parental authority to make medical decisions for their children be challenged?
Medical caretakers have an ethical and legal duty to advocate for the best interests of the child when parental decisions are potentially dangerous to the child's health, imprudent, neglectful, or abusive. As a general rule, medical caretakers and others should challenge parental decisions when those decisions place the child at significant risk of serious harm. When satisfactory resolution cannot be attained through respectful discussion and ethics consultation, seeking involvement of a State child protection agency or a court order might be necessary.
What are some examples of a decision that places a child a significant risk of serious harm?
Childhood vaccination provides an example of the kinds of factors that must be weighed in making this determination. While most physicians believe it is in a child’s best interest to receive the routine childhood vaccinations and therefore recommend them to parents, they do not generally legally challenge parents who choose not to vaccinate their children. This is because in a well-vaccinated community the risk of contracting the vaccine-preventable illness and suffering harmful consequences from the infection are quite small. However, this calculation might shift if a clinician is faced with an unvaccinated child who has suffered a puncture would from a dirty nail. In the latter case, the risk of tetanus (a serious and almost always fatal disease if not prevented) has become significant, and the provider would be justified in seeking the power of the State (through a court order or involvement of child protective services) to assure that the child receives the vaccination and treatment necessary to prevent tetanus in a high risk situation.
What if parents are unavailable and a child needs medical treatment?
When parents are not available to make decisions about a child's treatment, medical caretakers may provide treatment necessary to prevent harm to the child's health. In general, a child can be treated or transported without parental permission if the child has an emergency condition that places his or her life or health in danger, the legal guardian is unavailable or unable to provide permission for treatment or transport, and treatment or transport cannot be delayed without further endangering the child. Providers should administer only those treatments necessary to prevent harm to the child until parental permission can be obtained. Examining a child who presents to medical attention is always appropriate in order to establish whether a threat of life or health exists.
Should children be involved in medical decisions even though their parents have final authority to make those decisions?
Children with the developmental ability to understand what is happening to them should be allowed to participate in discussions about their care. As children develop the capacity to make decisions for themselves, they should be given a voice in medical decisions. Most children and adolescents lack full capacity to make complex medical decisions, however, and final authority to make medical decisions will usually remain with their parents.
What happens when an older child disagrees with her parents about a medical treatment?
The wishes of competent older children regarding their medical care should be taken seriously. If the medical caretaker judges a child competent to make the medical decision in question, she should first attempt to resolve the issue through further discussion. If that fails, the medical caretaker should assure that the child's voice has been heard and advocate for the child. In intractable cases, an ethics consultation or judicial hearing should be pursued.
Under what circumstances can minors make medical decisions for themselves?
There are three situations in which minors (those who have not reached the age of majority in their state of residence) have the legal authority to make decisions about their health care.
First, every state has emancipated minor laws which designate minors who meet certain criteria as having the authority to make decisions (including medical decisions) for themselves. Although emancipated minor laws vary from state to state, most states recognize an emancipated minor as a person who meets one of the following criteria:
- Economically self-supporting and not living at home
- Married
- A parent
- On active duty in the armed services
Second, most states recognize some minors as sufficiently mature to make medical decisions on their own behalf. A determination that a minor is mature usually requires that the minor be older than 14 years of age and have demonstrated a level of understanding and decision-making ability that approximates that of an adult. While some states allow physicians to make this determination, most require a judicial determination of mature minor status.
Third, all states make condition-specific exceptions to the requirement of parental consent. These laws may allow an adolescent to seek treatment without parental consent for sexually transmitted diseases, pregnancy, contraception, psychiatric disorders, and drug or alcohol abuse.
Is there a resource that summarizes the various state laws regarding adolescent consent?
The Guttmacher Institute publishes a summary of the adolescent consent laws that can be found at: www.guttmacher.org/statecenter/spibs/spib_OMCL.pdf