Treatment of Minors
The treatment of unaccompanied minors presenting to a physician for treatment, whether in the context of an Emergency Department, health care facility or office, has far reaching implications. The concept of informed consent or informed choice is much broader than the paper signed by a patient. The doctrine encompasses medical treatment and the physician must disclose to a patient probable risks, benefits and all medically reasonable course of treatment.
The provision of emergency care for minors without the consent of a parent or guardian, under EMTALA, the Emergency Medical Treatment and Active Labor Act, requires a medical screening for anyone who presents to an Emergency Department, including unaccompanied minors, to determine whether an emergency medical condition exists. (Pediatrics Vol. 111 No. 3 March 2003, pp 703-706). EMTALA, as a federal law, preempts conflicting or state laws, thus, provision of emergency treatment for minors without a consenting parent or guardian is essentially rendered moot. If an emergency condition exists, EMTALA requires stabilization and if necessary, transfer to an appropriate facility. If an emergency medical condition is not identified, then the EMTALA regulations no longer apply and consent of the minor’s parent or guardian should be sought. (Id.)
Of course, the determination of what constitutes an “emergency medical condition” can be cause for debate. This is a challenge that is currently under review by the New Jersey Supreme Court in a case involving the insertion 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 of family members. The plaintiff’s attorney argued that although prompt treatment was necessary, it was not so emergent as to preclude communication with the family. As one family member was a physician, it was also argued that they would have selected a physician with more experience to insert the chest tube. The New Jersey Supreme Court will be rendering a decision as to whether every medical issue obviates the need for informed consent. Id.
But what about the murky realm of a minor who presents for treatment and may not necessarily require emergent care, however does require treatment. Afterall, a minor is considered to be incompetent in the realm of informed consent and legal decisions. In situations involving adolescents and teenagers, there is often a conflict between the principles underlying the informed consent doctrine and the principles underlying the patient’s right to confidentiality. Although common law and statutory law has supported physicians in providing emergency care for minors in the emergency department, there are areas worthy of further discussion.