Consent for the Healthcare of a Child

The question of who can give consent for the healthcare of a minor can be a multi-layered one that depends largely on individual circumstance. Children are treated differently than adults by the law in North Carolina with regards to issues of consent generally, including consent for healthcare.

There are clear developmental reasons surrounding children’s different legal status under the laws of consent. Children’s brains often lack the sufficient maturity to make the reasoned decisions required of adults. Social science now indicates that the rational portion of a teenager’s brain is not normally fully developed until the age of 25 or so.

Parents have inherent legal authority to consent to the medical treatment of their child. A legal guardian or custodian also has the authority to consent to healthcare on behalf of the minor. If neither is available, a person standing in loco parentis to the child might have authority to consent to the child’s care. In loco parentis refers to an adult who has informally taken on the responsibility for raising the child. North Carolina’s public health law provides that an adult with such a relationship to a minor is permitted to consent to immunization for the minor. However, our courts do not show much deference to the concept of in loco parentis imbuing an adult with the power to consent to non-emergency healthcare for the minor.

Custodial parents and legal guardians in the Charlotte, Lake Norman area may also authorize a third party adult to consent to the minor’s healthcare on a temporary or limited basis. The parent or guardian can limit the care to which the third party can consent, but cannot authorize the person to consent to withholding or withdrawing life-sustaining procedures.

Sometimes a parent refuses to consent to medical treatment for a minor that the physician believes is necessary. N.C.G.S. 7B-3600 provides an avenue for a court of law to authorize consent for treatment in such a situation if the physician submits a signed, written statement to the court explaining the circumstances. However, in some circumstances the time that this procedure would take can seriously worsen the minor’s condition or threaten their life. In such a case, the physician is permitted to proceed with the required emergency treatment with no consent or court order as long as another physician agrees that it is necessary to prevent immediate harm to the minor.

Despite their developing brains, the majority of minor children acquire so-called “decisional capacity” that is similar to that of adults at some point before they reach 18, the age of consent for most legal purposes. Decisional capacity in the context of healthcare is the ability to understand your health status, needs and options, and to make a decision about them. It is typically examined by looking at a person’s understanding, appreciation, reasoning and ability to make a choice and express it. There is no specific age at which a minor reaches the age of decisional capacity; rather, it is a child-specific inquiry.

In North Carolina, a minor is permitted to give consent for their own healthcare IF they are determined to have the requisite decisional capacity, in a select few circumstances. N.C.G.S. 90-21.5, North Carolina’s minor consent law, permits a minor to consent to medical care for the prevention, diagnosis and treatment of sexually transmitted diseases, pregnancy (but not abortion), controlled substance abuse, and emotional disturbance.

North Carolina law authorizes a physician to treat a minor without the consent of a parent, legal guardian, or third party standing in loco parentis in certain emergencies and urgent circumstances. Specifically, a physician is authorized to treat a minor without consent when any one of the following applies:

1. The minor’s authorized person cannot be contacted or located with reasonable efforts during the time frame within which the minor requires treatment
2. The minor’s identity is not known
3. The minor’s need for immediate treatment is so obvious that any effort to obtain consent would delay the treatment long enough to endanger the minor’s life
4. An effort to contact the minor’s authorized person would delay the treatment long enough to seriously worsen their physical condition.

“Treatment” within the meaning of this statute refers to any medical procedure or service, including physician-ordered diagnostic and laboratory procedures, administration of drugs, x-rays, blood transfusions, and use of anesthetics. The term also includes surgical procedures, although ordinarily at least two surgeons must agree that the surgery is necessary in such a situation.

If you are facing a family law situation involving consent for the healthcare of a child, it is important to speak with an experienced local family law attorney. Arnold & Smith, PLLC is a civil and criminal litigation firm in North Carolina. Our dedicated family law attorneys take an individualized approach to each case. Contact us today for a consultation with one of our family law attorneys about your case.