State law allows minors under the age of 18 to consent to medical care and treatment under certain conditions that are described below. State law allows minors to make decisions about the handling of their protected health information (PHI) when the law allows them to consent for their own treatment.
In Washington a person under the age of 18 cannot consent to medical care unless one or more of the following exceptions apply:
• If the minor is emancipated (legally independent) or married to someone at or above age 18 (RCW 26.28.020).
• In the event emergency care is necessary (when impractical to get parental consent first).
• For birth control and pregnancy-related care at any age (see State v. Koome).
• For outpatient drug- and alcohol-abuse treatment beginning at age 13 (RCW 70.96A.095).
• For mental health treatment beginning at age 13 (RCW 71.34.500 and 71.34.530).
• For sexually transmitted diseases, including HIV/AIDS, beginning at age 14 (RCW 70.24.110).
In Oregon minors have the right to consent to certain health care without a parent or guardian’s consent. A minor may consent to medical care:
• At age 15 or above for most types of medical treatment (ORS 109.640).
• In the event emergency care is necessary (ORS 418.307).
• For birth control and pregnancy-related care at any age (ORS 109.610 and ORS 109.640).
• For outpatient chemical dependency (excluding methadone maintenance), and outpatient mental health diagnosis and treatment beginning at age 14. Parents or guardians must be involved at some time prior to the end of treatment except under special circumstances (ORS 109.675).
• For sexually transmitted diseases at any age (ORS 109.610 and ORS 109.640).
• For HIV testing and treatment at any age. Additionally, HIV test results and details regarding treatment of HIV/AIDS may not be disclosed to anyone without the express consent of the minor (ORS 433.045).
In Idaho a person under the age of 18 cannot consent to medical care unless one or more of the following exceptions apply (these exceptions are much more limited in Idaho):
• If the minor is emancipated (economic self-sufficiency, Ireland v. Ireland 123 Idaho 955(1993).
• If the minor is or has been married (Idaho Code 32-101).
• For treatment of infectious, contagious, or communicable disease, beginning at age 14, if the disease or condition is one required by law or regulation to be reported to the local health officer (Idaho Code 39-3801).
Other treatment of minor issues in Idaho law are not easily summarized and we recommend you contact a risk management consultant or attorney if you have questions.
Documentation
The underlying facts for the application of any of these exceptions should be
documented in the medical record at the time of treatment. When consent forms are applicable to these exceptions, such as pregnancy termination, the minor may sign these forms. Due to the minor patient’s relative immaturity and lack of sophistication, adequate time needs to be spent concerning these consent issues.
Emancipation
A person under the age of 18 who is either emancipated or married (Idaho) to a spouse 18 years of age or older (Washington) can consent to his or her own medical care. An emancipated minor is an individual who is free from parental control and is self-
supporting.
Emergencies
Washington State law provides that no clinician or hospital is liable for failing to secure consent when rendering emergency medical, surgical, hospital, or health services to any individual, regardless of age, where the patient is unable to provide consent for any reason and where there is no other person reasonably available who is legally authorized to give such consent. In Washington, Oregon, and Idaho, though not
specifically addressed in Idaho, emergency care should not be unduly delayed pending attempts to obtain any such consent. If the child’s condition could deteriorate, treatment should begin at once and permission to treat should be sought concurrently. Although “emergency” can be defined either broadly or narrowly, we believe the interpretation should be considered as broader than “life-threatening.” For example, in the instance of an upper respiratory infection in a child, we believe that treatment should be started even if consent is not readily available. Although it could be argued that in most cases a delay in treatment of an upper respiratory infection will not cause sequelae, clearly a delay in treatment increases a child’s suffering, and we can’t conceive of an instance where a parent would refuse this care and a court would support such a decision. As in most cases, the issue of determining when to treat without parental or guardian consent requires good judgment and common sense.
In cases involving minors, clinicians or hospital personnel should thoroughly chart their efforts to contact the parent or guardian for consent for emergency care. If parental consent is obtained by phone, document it in the chart.
Sexual activity, substance abuse, and mental health
Some courts and legislatures have granted minors the right to consent to medical care in a number of situations where forced consultation would most likely deter the minor from seeking needed treatment. In Washington and Oregon a minor may consent to medical care relating to birth control, medical conditions relating to pregnancy, and pregnancy terminations. In Washington persons 14 years of age or older may give their own consent for medical care relating to HIV/AIDS or sexually transmitted diseases. In Idaho, beginning at age 14, minors can consent to treatment of some STDs as described by Statute 39-3801 as quoted above. Persons 13 years of age or older (14 in Oregon) may give their own consent for outpatient mental health care or the outpatient treatment of substance abuse. However, minors cannot be admitted for inpatient treatment of substance abuse or mental health without parental consent or a commitment order.
Cost of care
For other than emergency care, parents or guardians are not liable for the cost of care provided without their consent when the minor has the right to consent without
consulting the parents. In these instances, each minor needs to be informed that he or she will be responsible for paying for services, and appropriate arrangements should be made.
Divorced or separated parents
For health care of a minor that does require parental consent, the parent or guardian who brings the child to the medical office can provide consent for the child’s care. A parent or guardian can provide consent for the treatment of a minor child regardless of whether the parents are married, unmarried, or separated at the time of the treatment. This applies whether the parent is the custodial parent or not, and would only be
impacted by a court order limiting the parent’s parental rights, including the right to direct medical care. You may treat a minor when one parent provides consent to care even if the other parent demands you not treat the minor, although there may be occasional circumstances where, in your judgment, you choose not to provide care when the parents disagree.
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Conclusion
The law concerning treatment of minors has numerous exceptions and nuances, and this article attempts to focus on the most common issues. It does not address the more case-specific problems related to extremely immature minors who may lack mental competence to consent, the court-ordered treatment of minors, or the right of minors to refuse medical care. If health care providers use their common sense and their best judgment, with an emphasis on what is best for the patient, the liability risk will be minimized. Whenever difficult case-specific consent issues arise, Physicians Insurance members can call the Risk Management Department at (206) 343-7300 or 1-800-962- 1399 (Western Washington) or (509) 456-5868 or 1-800-962-1398 (Eastern