Q.

I have a question regarding consent for treatment of minors. We have many aunts, uncles, grandparents, etc. who come to our office with the child of a family member.  The adult has a handwritten, signed note from the parent stating that this adult has authority to consent to treatment for the child.  The notes are not notarized and there has been no official transfer of authority to the other family member through the legal system.  We are not only uncomfortable providing care in this situation, but feel it is illegal.

What level of documentation do we need to provide care to a minor child? Will a handwritten note suffice? Would the same note, if notarized, suffice? Or, must we obtain a court document stating this adult has legal guardianship or other legal authority to consent to treatment?

A.

It is prudent for your staff to answer these questions in the context of a real case rather than in generalities.  The standard of care for health care providers requires that the provider do what a reasonably prudent health-care provider would do under similar circumstances.

This will vary depending on the unique facts of each case. For instance, if a minor child in need of emergency mental-health services because of suicidal ideation presents to your facility accompanied by a grandparent with an non-notarized note giving the grandparent authority to consent to treatment, the legal risk of declining to provide service is substantially greater than providing the emergency service without appropriate legal consent. On the other end of the continuum, if a minor child presents to your facility needing routine care and no harm will be done by delaying care, it could be reasonable to delay care to get a parent or other legal guardian to sign a consent.

It is probable that in most instances the risk of declining service is greater than the risk of providing service. Claims for negligence can be made only when a mental health care provider breaches the standard of care and also causes injury. Thus, it would be unusual to see a lawsuit for providing service without consent unless the patient has been injured in some way. Simply providing care without consent does not cause injury in itself.

Sexual misconduct by staff with patients, suicide malpractice and instances involving violent patients are the most common circumstances from which lawsuits arise against mental health care providers. None of these types of claims depend on a lack of informed consent for their validity. If one of your minor patients otherwise has a valid claim for malpractice, you can expect that lack of informed consent will be an issue raised during the litigation.

In regard to the level of documentation, it is best to have a signed consent form from the actual guardian or parent. If you have some reason to believe that the person presenting as a parent or guardian actually does not have legal authority, you could ask for a copy of any legal document such as a divorce decree.

I understand from our conversation, however, that in your real-world practice you are presented with many instances in which minor patients live with persons who are not their actual legal guardians but who are the only adults in their lives. There is no good, clear answer for your dilemma here, but it seems improbable that you will be successfully sued for providing good care simply because the only consent you were able to obtain was from this type of adult.