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childmeddecisions

Children’s Medical Treatment Decisions

As a general rule, parents are entitled to make all of the decisions for their minor child’s medical treatment. But that right is not absolute. The age of majority in North Carolina is eighteen, although there are several exceptions when it comes to choosing medical treatment for himself or herself before that age.  When the type of medical care a child receives is disputed, there are laws that allow the child and/or the doctor to consent to the treatment instead of (or along with) the parent in several limited circumstances.  Although our statutes allow physicians limited independent authority to make choices of treatment for a child, when confronted with these choices, physicians may or may not be willing to exercise that option, risking a lawsuit by the parent(s).

When Can Physician Treat Without Consent?

Generally, a doctor must have consent of parent or guardian to give medical treatment to a minor. But what happens when the parent isn’t there?  The law says that if the parent can’t be located or contacted with reasonable diligence while the minor needs to receive the treatment, the physician may treat without the consent of the parent(s). A related scenario permits treatment without the consent of parents if the physician cannot identify the child, and therefore, cannot identify the parents. There are numerous examples of situations where a child may be by himself or herself when there is a bike or other accident that leaves a child unconscious, and the parents are unknown.  After all, children under the age of 16 usually don’t have a wallet and identification.  A physician may treat a minor without consent if a child’s life would be endangered by delaying immediate treatment in order to get parental consent, or when efforts to reach the parent(s) would result in a delay that would seriously worsen the minor’s physical condition.

When Can Physicians Treat Over the Objection of a Parent Who Refuses Consent?

While the first category of treatment for children seems based on common sense, physicians also face complicated and difficult questions about treatment when parents are aware of the proposed treatment but they object to it and refuse to give consent. When that happens, the doctor must get a court order to override the parent’s objection.  These types of cases may be filed by the NC Department of Social Services on behalf of the child. But if the “necessity for immediate treatment is so apparent that the delay required to obtain a court order would endanger the life or seriously worsen the physical condition of the child” the doctor may override the parent’s objection.  If that is the case, the law also requires a second opinion from another licensed physician that such procedure is in fact necessary to prevent immediate harm to the child. Doctors who refuse to give treatment in good faith because a parent will not give consent are protected from criminal charges, and civil lawsuits filed against them for complying with the wishes of the parent.

When parents refuse consent, emergency treatment may be provided against the parent’s wishes when it appears failure to administer treatment places the minor in “immediate harm.”  In this situation, the court is allowed to give consent instead of the parents based on the necessary details in a written statement from the doctor, or even a phone call if the emergency is acute. If the court consents to the treatment in place of the parents, the court must then hold a hearing on whether the parent(s) should be ordered to pay for the treatment for which they refused to consent.  The county must pay the cost of the treatment if the court rules the parents are unable to pay.

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Consent of the Minor is Adequate 

If a minor is married or otherwise emancipated, he or she can give independent consent to certain medical health services. However, when children have certain adult medical issues, they are given a limited right to consent to treatment without the need for any parental involvement.

Minors who are not emancipated are allowed to independently give consent to a doctor for medical health services for the prevention, diagnosis and treatment of:

1.  Certain diseases such as venereal disease or HIV status, or

2. Pregnancy (this statute does not include abortion or sterilization), or

3.  Abuse of controlled substances or alcohol, or

4.  “Emotional disturbance.”

Consent of the Minor: Sterilization

In conjunction with his or her parents, a minor may petition the court for permission to be sterilized. Outside of the mental illness setting, when an unmarried minor requests to be sterilized in writing, a parent may petition the court for authorization.  As long as the minor meets the criteria for the statute as applied to adults, a judge must decide whether the petition for sterilization would serve the child’s best interests. If so, the court will enter an order authorizing the doctor to perform the surgery.

Consent of the Minor: Abortion

A pregnant minor does not necessarily have to involve her parents in her decision to seek an abortion.  If she wishes to petition a district court judge to waive the need for her parent to consent for an abortion to be performed, she may use what is sometimes called the judicial by-pass option.  If she chooses to do so, the records of the proceeding are sealed. Time being of the essence, the judge must rule on the request within seven days. When approached by the pregnant minor, who has the right to file alone without an adult being joined as a plaintiff, the court shall waive the requirement of parental consent for an abortion on any one of three reasons:

1.  It’s in her best interest for parental consent to be waived, or

2. She’s mature and well-informed enough to make the abortion decision on her own, or

3.  She has been raped or is a victim of felonious incest.

Another exception to the need to get either a judge’s or a parent’s consent is when there is a medical emergency requires an abortion.  But, a doctor who “intentionally performs an abortion” on a minor, with “knowledge” or “reckless disregard” of her age is guilty of a misdemeanor if the proper person has not consented, or there is no medical emergency requiring it.

 See NC Gen. Stat. 90-21.1 – 21.10, 90-272 and 7B-3600.

 

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