Legal hurdles to leap to get medical treatment for children.

• Author: Bittinger, Ann
• Position: Florida

Because of the establishment of The Florida Bar's Commission on the Legal Needs of Children and former Florida Bar presidents' emphasis on the legal rights of children, Florida lawyers have witnessed unparalleled attention being given to children's rights and legal needs. The emphasis on children's rights, however, was not just legal in nature. Leaders recognized that improving access to the legal system for children would benefit not only their civic standing, but also their lives in general. No area of the law will have a greater direct and long-term effect on children than laws that will allow them to receive needed medical care.

The main hurdle lower income children must leap to receive health care is clearly the cost of the care itself. (1) However, the issue of who can give consent for the treatment of the children and identification of the child's legal representative who should apply for government assistance to pay for the child's care, can block children's access to doctors' offices and hospitals as much as lack of financial resources.

Generally, minors cannot consent to their own medical treatment. If a physician places his or her hands on a child without the parent's or legal representative's consent, the physician could be liable for battery under the common law. (2) Additionally, providing treatment without consent could be considered unprofessional conduct under the Medical Practice Act, (3) and physicians' licenses to practice medicine can be suspended for unprofessional conduct. (4)

There are many situations in which consent to treatment of minors arise. In one situation, for example, a mother threatened to sue a surgeon who performed a circumcision on a newborn boy. The grandmother had taken the child to the surgeon, but the mother, who did not want the child circumcised for religious reasons, knew nothing of the surgery. In another situation, a child suffered hearing loss and ruptured ear drums while the government, social workers, family, and foster parents failed to agree as to who was authorized to give consent for the child to have surgery. Many surgeries have been delayed and cancelled while a hospital's risk management department, a child's social worker, and the county courts try to identify a legal representative who can consent to the child's surgery.

The purpose of this article is to outline the law governing consent for medical and surgical treatment of pediatric patients in Florida. Florida statutes contain a plethora of rules regarding who can give consent for a child's healthcare treatment. In many cases, minors can consent to their own treatment without the consent of, or notice to, their parents, which may be surprising considering the new Florida law requiring minor girls to notify their parents before obtaining an abortion. (5) Parental notification is needed for abortion, but not for a cesarean section, drug therapy, sexually transmitted disease treatment, or birth control prescriptions in some situations. Understanding these laws will allow Florida lawyers and others helping children to overcome potential legal hurdles that could keep children from having access to the healthcare they need. It will also point out inconsistencies in Florida law and examples of how decades-old statutes may no longer reflect modern society.

Minors, Emancipated Minors, and Married Minors

The starting point in identifying the person with standing to consent to the child's medical treatment is to determine if the child is a minor. Under Florida law, a person under the age of 18 years who is not emancipated is a minor. (6) In turn, there are two bodies of law under which it may be determined whether a minor has become emancipated: 1) under the common law or 2) pursuant to statute. A minor is emancipated under the common law if the minor is financially independent and maintains a residence away from his or her parent. (7) A minor is statutorily emancipated only if the "disability of nonage" is formally removed by a circuit court upon petition by a natural or legal guardian or, if none is available, by a guardian ad litem. (8) Statutory emancipation applies only to 16- and 17-year olds.

An emancipated minor can consent to his or her own medical treatment and surgery. (9) Providers may ask for proof that a minor is living away from home and is financially independent to determine if the minor falls within the common law parameters for emancipation. Sometimes, it is even appropriate to contact the minor's parent and ask whether the child is emancipated.

Although technically not emancipated, the disability of nonage is also removed when a minor marries. (10) This means that a married minor can consent to his or her own medical treatment and surgery. As a practical matter, providers may want to ask for a copy of a marriage license when relying on a minor's statement that he or she is married and therefore has the legal standing to consent.

Pregnant Minors

An unmarried, pregnant minor may consent to medical and surgical care related to her pregnancy by a hospital, clinic, or physician. (11) She cannot, however, consent to medical treatment for herself that is not related to her pregnancy.

Furthermore, although what constitutes "related to pregnancy" has not been litigated, whether treatment is "related to" the pregnancy may be based on the facts, circumstances, and medical judgment, but it is possible that amniocentesis, prenatal care, and hospitalization are considered related to the pregnancy. Similarly, a pregnant, unwed minor likely can, for example, consent to a cesarean section but not to an appendectomy. She also likely can seek prenatal care from an obstetrician but cannot consent to medical treatment by an otolaryngologist, for example, for a suspected ear infection. A gray area arises when chronic illnesses are exacerbated by the pregnancy. For example, can a teenager go, without parental consent, to a cardiologist after her obstetrician suggested a cardiologist reevaluate a dormant heart condition that has not been a problem for quite some time but may be exacerbated by the pregnancy?

In summary, a pregnant minor is not emancipated under Florida law but can consent to medical treatment related to her pregnancy. Accordingly, lawyers assisting a pregnant minor may want to explain to the physicians providing obstetric care to the minor that the minor has the legal authority to consent to any treatment "related to" the pregnancy that the physician should document in the medical record as linked to the pregnancy and the related care, or otherwise obtain the pregnant minor's parent's consent.

Minor Mothers

Giving birth does not...