CLINICAL REPORT Guidance for the Clinician in Rendering Pediatric Care

Consent by Proxy for Nonurgent Pediatric Care Jonathan M. Fanaroff, MD, JD, COMMITTEE ON MEDICAL LIABILITY AND RISK MANAGEMENT

Minor-aged patients are often brought to the pediatrician for nonurgent abstract acute medical care, physical examinations, or health supervision visits by someone other than their legally authorized representative, which, in most situations, is a parent. These surrogates or proxies can be members of the child’s extended family, such as a grandparent, adult sibling, or aunt/uncle; a noncustodial parent or stepparent in cases of divorce and remarriage; an adult who lives in the home but is not biologically or legally related to the child; or even a child care provider (eg, au pair, nanny, private-duty nurse/nurse’s aide, group home supervisor). This report identifi es common This document is copyrighted and is property of the American Academy of Pediatrics and its Board of Directors. All authors have situations in which pediatricians may encounter “consent by proxy” for fi led confl ict of interest statements with the American Academy nonurgent medical care for minors, including physical examinations, of Pediatrics. Any confl icts have been resolved through a process approved by the Board of Directors. The American Academy of and explains the potential for liability exposure associated with these Pediatrics has neither solicited nor accepted any commercial circumstances. The report suggests practical steps that balance the need to involvement in the development of the content of this publication. minimize the physician’s liability exposure with the patient’s access to health Clinical reports from the American Academy of Pediatrics benefi t from expertise and resources of liaisons and internal (AAP) and external care. Key issues to be considered when creating or updating offi ce policies reviewers. However, clinical reports from the American Academy of Pediatrics may not refl ect the views of the liaisons or the organizations for obtaining and documenting consent by proxy are offered. or government agencies that they represent.

The guidance in this report does not indicate an exclusive course of treatment or serve as a standard of medical care. Variations, taking into account individual circumstances, may be appropriate.

BACKGROUND All clinical reports from the American Academy of Pediatrics automatically expire 5 years after publication unless reaffi rmed, Before providing nonurgent medical care to a minor patient not revised, or retired at or before that time. accompanied by a legally authorized representative (LAR), important DOI: 10.1542/peds.2016-3911 questions regarding informed consent and the delegation of parental PEDIATRICS (ISSN Numbers: Print, 0031-4005; Online, 1098-4275). responsibilities need to be asked and answered. These questions include the following: Copyright © 2017 by the American Academy of Pediatrics FINANCIAL DISCLOSURE: The authors have indicated they do not have 1. Who has a legal right to delegate consent to health care decisions for a a fi nancial relationship relevant to this article to disclose. child? FUNDING: No external funding. 2. To whom can the power to consent to health care for a child be POTENTIAL CONFLICT OF INTEREST: The authors have indicated they delegated? have no potential confl icts of interest to disclose. 3. In what circumstances can the power to consent to health care for a child be delegated? To cite: Fanaroff JM and AAP COMMITTEE ON MEDICAL 4. What are the limitations on the right to delegate the power to consent LIABILITY AND RISK MANAGEMENT. Consent by Proxy for Nonurgent Pediatric Care. Pediatrics. 2017;139(2):e20163911 to health care for a child?

Downloaded from www.aappublications.org/news by guest on September 27, 2021 PEDIATRICS Volume 139 , number 2 , February 2017 :e 20163911 FROM THE AMERICAN ACADEMY OF PEDIATRICS 5. How is authorization of proxy 2010 clinical report on consent by on the specific state rule (eg, consent verified and documented? proxy. 7 The authors acknowledge emergency treatment; treatment that not permitting consent by of an emancipated or “mature” 6. When or how often does proxy may pose a challenge to the minor; treatment of an adolescent information on proxy consent efficient operation of a busy pediatric for a specific clinical situation need to be updated? practice. However, suggestions such as sexual assault, sexually Many aspects of informed consent are offered to help pediatricians transmitted infections, contraception, in pediatrics have been set forth in minimize their exposure to legal risk pregnancy-related care, mental previous policy statements from the in situations in which an LAR has health disorders, drug abuse, or American Academy of Pediatrics delegated the authority to consent to alcohol dependency). (AAP). Some of these statements nonurgent medical care to another addressed informed consent in adult. Pediatricians should use A physician who provides nonurgent broad terms, and others addressed their good judgment in balancing care, including the physical narrowly focused situations. the patient’s health care needs with examination, to a minor without The AAP statement on informed their own need for legal protection. the consent of someone who is consent 1 noted that, unlike in Because pediatricians are primarily legally authorized to speak for the other specialties, “the doctrine of concerned with their patients’ minor may be vulnerable to legal ‘informed consent’ has limited direct welfare, discretion should be used to action. Lawsuits that allege a lack of application in pediatrics,” because differentiate situations in which care informed consent usually are based parents or other surrogates provide can be delayed pending appropriate on the concept of negligence but informed permission, rather than LAR consent from situations in which may involve battery as well. 9 – 11 In informed consent, for diagnosis and the pediatrician should provide general, battery is the unsolicited treatment of children. Other AAP care and accept the risk of legal physical touching of a person. policy statements have provided repercussions. Careful planning and Medical battery may be alleged guidance to pediatricians on consent good office policies can minimize if treatment is provided without for treatment of minor patients those instances. appropriate informed consent, when in specific circumstances such as a procedure is performed that is emergency care, 2 genetic testing and substantially different from the one newborn screening, 3 procedures that LEGAL BACKGROUND for which consent was given, when involve sedation, 4 and parental denial the treatment exceeds the scope of of medical care for religious reasons.5 All states, as supported by AAP the consent, or when a physician policy, allow the provision of different than the one to whom This report does not replace the specified services (eg, the treatment consent was granted performs the aforementioned policy statements; of sexually transmitted diseases) to procedure.12 A physician may face a they stand on their own merit. In minors without parental consent. battery claim even if the treatment or addition, it is important to recognize In general, however, people who procedure may have been performed the relevance of the AAP policy have not yet reached the age of without any negligence.13 When “Achieving Quality Health Services majority are not considered adults a plaintiff (person who files the for Adolescents” 6 (noting the and do not usually have the right to lawsuit, usually parents on behalf importance of confidentiality for consent to their own medical care. of their child) is not satisfied with quality adolescent care). This clinical In most states, the age of majority the results of the medical treatment report does not replace or supersede is 18 years. Thus, a physician is or procedure but is unable to prove this policy, nor does it apply when a required to obtain consent from an negligence in litigation against the parent has given consent during an LAR before performing a medical or physician, the plaintiff may resort early- or mid-adolescent visit for a surgical test, procedure, or treatment to the theory of battery to seek pediatrician to provide ongoing care on a minor. 8 Under some scenarios, a recovery. If the plaintiff who to the teenager alone. the consent can be obtained from alleges an unauthorized procedure Instead, this report addresses the LAR via telephone, even if a cannot prove actual harm, typically the potential liability risks that proxy accompanies the minor. It is only nominal damages will be physicians may incur when advisable to have a witness confirm recovered. However, in a successful providing nonurgent medical and document phone consent. In battery case, punitive damages care to pediatric patients without addition, judicial decisions and may be assessed, which may not be obtaining permission or consent legislative action have resulted covered by malpractice insurance directly from the patient’s LAR. in several exceptions to the LAR- or dischargeable by bankruptcy. This report is a revision of the consent requirement, which depends Some states have replaced the

Downloaded from www.aappublications.org/news by guest on September 27, 2021 e2 FROM THE AMERICAN ACADEMY OF PEDIATRICS theory of battery with the theory of However, there is also judicial DEFINITION OF TERMS medical negligence. In addition to precedent in which liability was civil liability, physicians may face imposed on the physician. 10, 17– 19 Nonurgent Pediatric Care penalties from licensing boards For the purposes of this clinical Although not specifically addressing for performing services without report, nonurgent pediatric care is consent by proxy, more recent court appropriate consent. 14 defined as preventive medicine (ie, cases have assessed the validity of services encompassed in pediatric informed consent when a parent was The impact of state privacy laws health supervision visits, including not present. 20, 21 These cases have and the federal Health Insurance immunizations and screening tests) involved consent by adolescents Portability and Accountability Act and outpatient medical encounters for treatments and diagnoses other (HIPAA)15 on physician liability for for minor illnesses or injuries. than those already permitted in disclosure of health information of Differences in operations and most jurisdictions, such as treatment minors to unauthorized individuals procedures may depend on whether of sexually transmitted infections has not yet been tested. Although the nonurgent medical encounter is and mental health disorders. In HIPAA, as a federal law, takes priority the initial visit or a follow-up visit. viewing the informed consent as when it conflicts with state laws, in valid, these courts have determined most situations HIPAA expressly Informed Consent that the adolescents were “mature incorporates state laws regarding Informed consent is a general minors,” although the minors had disclosure. To date, physician principle of law that imposes on not previously sought mature-minor liability for treating without consent physicians a duty to disclose to status through adjudication. The by an LAR seems to be uncommon. their patients the benefits and risks courts relied on the adolescents’ However, past frequency may not associated with each of the following: age, ability, education, training, reflect future likelihood, because (1) the proposed course of treatment, degree of maturity and judgment, the concepts of informed consent (2) alternate treatments, and (3) no conduct and demeanor, and the and consent by proxy have evolved treatment at all (informed refusal). In nature and risks of the treatments both ethically and legally. In fact, general, informed consent is meant in assessing whether the minor inadequate informed consent, which to allow patients to exercise their adolescents were capable had not previously been a major right to autonomy and to voluntarily of consenting on their own. source of liability for physicians, has consent to medical interventions by Nevertheless, despite this legal become increasingly problematic, reasonably balancing the probable precedent, pediatricians should especially in the context of issues risks against the probable benefits. 25 be wary of treating adolescents such as limited English proficiency State standards in assessing the without parental consent unless the (LEP) and limited health literacy adequacy of disclosure under adolescent is seeking treatment of a (discussed later). Consent by proxy informed consent can be physician/ legally permitted condition. could become a source of future professional based (ie, benefits and concern, and physicians should A claim of “inadequate” informed risks that a reasonable physician not ignore the risks associated consent is usually predicated on the would disclose), patient based (ie, with it. notion that a “reasonable” person benefits and risks that a reasonable would have refused the treatment patient would want to know), or a Many of the published cases are or procedure offered to the plaintiff hybrid of both. Some states have of older judicial decisions. 16 The had proper informed consent been appointed interdisciplinary panels ramifications of these cases are conducted. 12 A claim of inadequate to develop specific informed-consent unclear to a contemporary jury informed consent may be added to a disclosure requirements for selected and judge. In addition, these older claim of medical malpractice because procedures.26 cases did not address issues such proof of inadequate informed as LEP and limited health literacy, consent might imply to a jury that Consent by Proxy which may affect informed-consent the physician was careless about the The process by which people situations, including consent by care delivered.22 The importance delegate to another person the legal proxy. In many of these cases, of appropriate informed consent right to consent to medical treatment treatment without consent by an LAR is underscored by appellate court of themselves, for a minor, or for was deemed appropriate by the court decisions that held that neither a ward is called consent by proxy. either on the basis of the emergency proof of medical malpractice nor There are 3 fundamental constraints treatment doctrine or because the battery is required for a claim of on this right to delegate consent for court deemed the minor patient to be inadequate informed consent to be children: (1) the guardian of a minor a “mature” or emancipated minor. 16 valid. 23, 24 must have the right to consent to

Downloaded from www.aappublications.org/news by guest on September 27, 2021 PEDIATRICS Volume 139 , number 2 , February 2017 e3 medical treatment of that minor, on consent by proxy lack specific FAMILY LIVING ARRANGEMENTS (2) the guardian must be legally and guidelines for implementation. Changes in family living medically competent to delegate the In addition, some states provide arrangements and the use of right to consent to medical treatment immunity for physicians from civil child care are leading reasons of that child, and (3) the right to and criminal liability if the physician why someone other than an LAR consent to medical treatment of the obtains the consent in good faith. 27 may bring a minor patient in for child must be delegated to a legally Even in states without laws defining nonurgent ambulatory pediatric and medically competent adult. 8, 16, 27 “ordinary” care, it is important care. The US Census Bureau has Physicians should realize that for the physician to recognize and described many aspects of family people who have been delegated distinguish between appropriate living arrangements. Although consent-by-proxy status may have non-LAR consent and inappropriate the majority of children spend different opinions than the LAR about non-LAR consent. It would be their childhood living in 2-parent both recommended and alternate perfectly appropriate, for example, families, millions of children in the treatment. to perform a rapid test for group A United States live in homes with streptococcal infection in a patient other family configurations. More Physicians need to be aware that with a sore throat with consent by than one-quarter (23.4 million) of state laws may mandate a hierarchy proxy. It would be inappropriate, all children younger than 21 years of people who may give consent on the other hand, to perform most lived with only 1 of their parents. 40 by proxy to nonurgent treatment genetic testing (ie, for Huntington In addition, an increasing number of if an LAR cannot be contacted. 28 – 30 disease) with non-LAR consent. children (5.4 million [7%]) live with a An example of such a hierarchy grandparent. Overall, approximately is as follows: (1) stepparent, (2) Minor one-third of all children in the United grandparent of minor, (3) adult States do not have 2 parents in the brother/sister, and (4) adult aunt/ A person who is younger than the home with legal authority to consent uncle of minor. 31 When a hierarchy age of legal competence is a minor by to medical treatment. At the initial is the rule, a person lower on the list definition. In most states, a person is visit, pediatricians should ask about generally cannot give consent if a no longer a minor after reaching 18 the child’s living arrangements. person higher on the list is available. years of age. At future visits, changes in living A written power of attorney or Current Pediatric Practice arrangements can be ascertained affidavit may be needed. Such a either through a questionnaire or document may need to be notarized Because there is no legal requirement direct inquiry. or witnessed, 27, 32, 33 may have a time to provide nonurgent pediatric care limit to it, 27, 32– 34 and may be needed to a minor without the consent of to supersede this hierarchy. 31 State an LAR, pediatricians who choose CHILD CARE law or custodial agreement may to treat such patients should be not permit a noncustodial parent aware of potential liability risks. Census reports confirm that an to consent to treatment of a child. Many pediatricians have not increasing proportion of children State law may permit foster care adopted policies to minimize liability spend substantial amounts of time licensees and court-appointed risks.38 For example, one-third of in the care of a person other than guardians to consent, depending on pediatricians in an AAP survey their parents. According to recent the scope of authority granted by the responded that they had no set census data, 12.5 million (61%) of court and the treatment proposed. policy regarding treating patients children younger than 5 years had Typically, consent to “routine” care brought in for nonurgent acute care some type of regularly scheduled is permitted, although the definition or preventive visits by child care child care arrangement. 41 The time of routine may vary among states. providers. A different national study spent in child care was significant, Some states have permitted proxies showed that 64% of pediatricians averaging 33 hours per week. A to consent to routine or “ordinary” and family physicians often or always number of arrangements were medical and dental care, which can saw adolescent patients for routine reported, including care by relatives include radiography, surgery, and health maintenance examinations such as siblings and grandparents, anesthesia. 35 Other states have without a parent present. 39 Practices nonrelatives such as babysitters excluded surgery, anesthesia, and that maintained a specific clinic and neighbors, and organized even psychotropic drugs from the policy were less likely to see an child care facilities such as day definition of ordinary care. 27, 28, 36, 37 adolescent for routine care without care or child care centers, nursery Immunizations may be excluded from a parent present than those without schools, preschools, and Head Start consent by proxy. 27 Some state laws such a policy. 39 programs. 41 Other children are cared

Downloaded from www.aappublications.org/news by guest on September 27, 2021 e4 FROM THE AMERICAN ACADEMY OF PEDIATRICS for by private-duty nurses or nurse’s will be provided. The patient’s the initial visit. Pediatricians who aides, who should be considered as medical record should be flagged decide to treat children under these proxies when they bring a child in for to alert all pediatric care team circumstances may want to consider medical care. members of situations in which the “flagging” such charts so that baseline caregiver cannot provide consent. information obtained from the initial If the pediatrician has any doubts visit can be later verified by the LAR. DOCUMENTING CONSENT BY PROXY about the caregiver’s capability to This flagging procedure would be provide permission for medical care especially important for details such Whenever someone other than (eg, lack of maturity, presence of as medication allergy and family the LAR accompanies the child intoxication, 43 unclear legal standing, history. for medical care, it affords an or the inability to understand risk opportunity to assess the relationship communication, perhaps because of between the child and the caregiver, language barriers or limited health UNACCOMPANIED TRAVEL but it precludes face-to-face contact literacy), then the pediatrician may between the pediatrician and the Consent-by-proxy forms can be need to consider deferring elective LAR. If it has been anticipated that useful in other situations as well. care until permission from the LAR a caregiver other than an LAR may Children who travel without their can be obtained. bring the child to pediatric visits, LAR sometimes require medical arrangements should be made for the If the pediatrician is uncomfortable treatment of a minor injury or illness, LAR to provide a written consent by with consent-by-proxy arrangements, which often occurs when children are proxy. In general, these documents it needs to be communicated visiting friends or relatives without specify the name of the LAR, the with the LAR as soon as possible. their LAR. Although most LARs will name of the person to whom the The topic could be broached sign a proxy consent form when their LAR’s legal authority to consent to during early discussions of child children go to school or summer the child’s medical care has been care arrangements at prenatal camp, few LARs think about sending delegated, and the relationship or newborn visits or addressed a signed proxy consent form along of that person to the child. Such during medical encounters before when their children leave home documentation may need to delineate the parent returns to employment for an extended period (eg, a week the extent of the surrogate’s outside the home. If parents are visiting grandparents). Depending authorization (ie, the circumstances, the caregivers, the pediatrician on state law, a child may not be the kinds of medical services, or the can explain the importance of the able to obtain routine medical care specified time period for which the “therapeutic alliance” 44 between the (which may or may not be defined surrogate may provide consent for pediatrician, parents, and patient and under state law) without consent medical care). State law related to emphasize why it is preferable for at to such care by an authorized adult. consent by proxy should be reviewed. least 1 parent to be present during Pediatricians may encourage LARs Signatures may be required, and state nonurgent visits. Offering extended to anticipate these problems and law may require that the signatures office hours (evenings or weekends) to take appropriate action so that be notarized. 27, 42 State law may also is another way pediatricians have their children traveling without an dictate the specific time period for made it possible for working parents LAR can receive needed nonurgent which a written consent by proxy is to attend their children’s medical medical care. When in doubt, valid. 27, 34 appointments. pediatricians should consider the best interests of the child in making The proxy relationship should be their decision about rendering care. verified and documented periodically. INITIAL VISIT The proxy accompanying the patient should be the same person Pediatricians should be cautious CUSTODY AND CONSENT to whom proxy has been delegated about proxy situations if they are on the aforementioned form. providing initial care for the child. It is prudent for the physician to Requesting a dated signature and Medical decisions may be made on inquire about marital status and government-issued photograph the basis of information obtained custody issues when relevant. In identification from the proxy is 1 from the proxy that may not be most states, parents who are married way to document that verification. entirely accurate. Similarly, medical to each other have an equal right Dissimilar signatures may indicate decisions may be made on the basis to consent to medical care for the a problem. It should also be verified of follow-up visits that are contingent children of that marriage, and the that the person is authorized to on the accuracy of the information consent of only 1 parent is required consent for the specific care that from the documentation during for nonurgent pediatric care in

Downloaded from www.aappublications.org/news by guest on September 27, 2021 PEDIATRICS Volume 139 , number 2 , February 2017 e5 such cases. The physician should have equal right to consent to care OTHER CIRCUMSTANCES not assume which parent has the for their child, the physician need A significant number of children in right to consent for the child when only obtain consent from 1 parent the United States do not live with the parents are divorced or legally to provide that care. However, there either of their biological parents. 40 separated. The right to consent in may be situations in which it is Children may be in foster care, these situations may be contingent not clear whether the pediatrician under the care of a relative, with a on state law or court order. Some may seek consent from 1 parent potential adoptive parent, wards states limit the rights of noncustodial if consent has been refused by the of the juvenile justice system, or parents and fathers of children born other.8 The pediatrician should in other situations in which their out of wedlock, in which case proof clarify who has the right to medical caregiver is not a biological parent. of paternity may not be available, to information and may specifically The pediatrician should ascertain provide consent to medical care for ask for a copy of any joint physical the exact nature of the relationship, children. or legal custody agreement. 45 Joint verify the authority of the proxy, One of the most difficult situations legal custody may be relevant to and document the legal basis of the for securing parental consent for coordinating medical care, because proxy-child relationship and the a child’s health care occurs when some joint custody agreements exercise of the informed consent children are used as pawns in marital require that both parents need to process within that context. conflict. “Physical custody” refers to give consent and be informed about For some children, a request has where the child lives. A “residential their child’s medical needs. not yet been made to the court for custodial parent” has sole physical a guardian to be appointed. For custody, and this parent’s home Less commonly recognized is the this reason, authority to consent to is the child’s primary residence. A problem of children visiting a these children’s nonurgent care may “noncustodial parent” is usually noncustodial parent in another be unclear, but a physician should granted visitation or access rights state, especially if that state’s law probably not deny them necessary to the child. “Legal custody,” which does not permit a noncustodial care because of their legal status. The can be sole (if only 1 parent has legal parent to give permission for the pediatrician should use his or her custody) or joint (if both parents child to receive medical care. These best judgment in deciding whether equally share legal custody), refers to situations are usually unexpected to postpone care until a guardian parental rights and responsibilities, can be appointed or to render the which include medical decisions and but not unmanageable. For instance, a pediatrician may be puzzled when care. If care is provided, careful other issues that pertain to the child’s documentation of the circumstances a family associated with the practice general welfare. “Joint custody,” when is recommended. Pediatricians seeks medical care for a child never used generically, can either be joint should notify child protective mentioned or seen previously. It legal custody (parents share nearly services when a child needs a legal may be a child or stepchild from a equal responsibilities for parenting guardian. As noted previously, for previous marriage or relationship decisions, such as medical care) or children in state custody under a who lives in another state and who, joint physical custody (providing foster care arrangement, there may the child with a home). It should while visiting the family, develops a be restrictions on consent by proxy. be noted that each divorce or legal minor illness and requires medical Consent for surgery may require a separation agreement is unique, and attention. In such situations, court order.28, 30 specific rights may be granted or pediatricians need to make sure that denied to a parent, even when the the adult accompanying the child court document describes them as has the authority to consent to the IMMUNIZATIONS having legal custody of the child. It is medical care before treating. Unless Although some would debate the important, therefore, to inquire about a stepparent has legally adopted logic of requiring informed consent who has “medical decision-making the child or has been designated as for state-mandated services such rights,” because it is more directly a legally authorized caregiver, he as immunizations, it is clear that pertinent to the issue of providing or she may have no legal authority open dialogue about risk is at the consent for the child’s medical care. to give consent for treatment. 8 It is crux of the national Vaccine Injury Disputing parents can use situations suggested that office staff document Compensation Program (VICP). 46 for deciding whether the child should the name and relationship of the Vaccine information statements receive nonurgent medical care as person providing permission and (VISs) were created to meet the an opportunity to spar over parental how his or her authority to do so was informational requirements of the rights. Generally, if both parents ascertained. VICP; the VIS alone is not considered

Downloaded from www.aappublications.org/news by guest on September 27, 2021 e6 FROM THE AMERICAN ACADEMY OF PEDIATRICS informed consent. The VICP requires AAP produces vaccine administration proportions of people with LEP. 60 that providers distribute a VIS to record forms to help pediatricians If the pediatrician suspects that the patient’s legal representative comply with the VICP documentation language barriers may compromise every time a covered immunization requirements. For non–English- the communication between him is administered. Federal law does speaking patients, VISs have or her and the proxy necessary not require parental consent for been translated into more than for informed consent, other steps immunizations but instead uses 40 languages. These VISs can be may need to be taken. Health care the term “legal representative” as accessed and downloaded from the professionals who participate one who may consent. Federal law Immunization Action Coalition Web in federal health programs (eg, defines legal representative as a site (www. immunize. org/ vis). 52 Medicaid, state Children’s Health parent or other individual who is Insurance Program, TriCare, qualified under state law to consent Medicare) are expected to meet to the immunization of a minor. Thus, LANGUAGE BARRIERS TO INFORMED requirements for accommodating regarding immunizations, state law CONSENT BY PROXY patients with LEP, which may involve controls consent. Non-LAR consent qualified translators other than An increasing number of patients to immunizations may be restricted family members. 61 Some patients and their proxies in the United under some state laws. 47, 48 These with LEP may be eligible for language States have LEP. A similar approach state laws may cover procedural assistance if their health care may be needed for patients or LARs requirements (eg, whether consent provider participates in a federal with hearing impairment. 53 LEP can may be verbal or must be written) government program. 62 Health care impede communication, affect the or substantive requirements (eg, providers may be placing themselves quality of care, and become a major types of information required). Most at risk of liability if proxies have future medical malpractice issue states require separate consent for problems understanding them relating to informed consent. 54 These each injection when more than 1 because of a language barrier. issues will only be compounded in injection is required to complete Malpractice lawsuits related to the scenarios that involve consent by immunization. Most states require issue of LEP have been based on proxy. Various federal and state consent for immunization services both negligence and inadequate laws and regulations apply to provided to adolescents. 49 Some informed consent. 63, 64 It is preferable individuals with LEP, including the states allow adolescents to provide to have someone who is medically Americans with Disabilities Act, 55 informed consent for immunization. knowledgeable explain the illness, the Rehabilitation Act of 1973, 56 Unless the law provides otherwise, treatment options, and known risks title VI of the Civil Rights Act, 57 and immunizations should not be given and benefits in the proxy’s own HIPAA. 15 More than 60 million people without appropriate consent. The language. The practice should record in the United States speak a language Centers for Disease Control and and retain on file the name, address, other than English in the home. 58 If Prevention Web site contains and background of the translator. the proxy does not speak the same information on state laws at http:// Translators should be instructed language as the pediatrician, it www. cdc. gov/ vaccines/ imz- that they are to communicate the may be difficult to obtain informed managers/ laws. Each state also has caregiver’s answer directly, which is consent. 59 a Department of Health or Bureau vital for conveying to the pediatrician of Immunization that can provide Although patient education materials whether the respondent’s answer beneficial information. and consent forms can be developed indicates an understanding of the in various languages for common elements needed for informed VISs explain the benefits and risks procedures that require informed consent and whether an agreement associated with each childhood consent, it would be unwise to rely has been reached as to the medical immunization. They are intended exclusively on written informed- treatment. It is not advisable to use to facilitate, not replace, effective consent methods. Translations children (eg, the patient or an older risk communication and proper that are accurate according to the sibling or relative) as translators for informed consent between the health textbook language may not be informed consent. The use of adult care professional and the patient’s appropriate to the comprehension family members as translators may legal representative. Instructions level of the reader. Most pediatricians result in incorrect history because for using VISs and documentation report the use of untrained of concerns about their desire to requirements are available from interpreters to communicate with not disclose personal information. the Centers for Disease Control and patients and families with LEP, not Certain scenarios could violate Prevention 50 and are summarized in only in smaller and rural practices section 601 of title VI of the Civil the AAP Red Book. 51 In addition, the but also in states with higher Rights Act, which states that no

Downloaded from www.aappublications.org/news by guest on September 27, 2021 PEDIATRICS Volume 139 , number 2 , February 2017 e7 person shall “on the ground of race, applicable laws without blocking ancillary services that may be color, or national origin, be excluded access to necessary but nonurgent used during an office visit, such as from participation in, be denied health care. Pediatricians have sought radiology or laboratory services. the benefits of, or be subjected to ways to accommodate the diverse 4. It is advisable to create a template discrimination under any program living and working arrangements form to be used in cases in which or activity receiving Federal financial of their patients’ families. Many individuals other than LARs may assistance.” 61 pediatricians are working parents be expected to accompany a child themselves and know well the to the office. Suggested items to challenges of family life. Developing a address include the following: PROBLEMS WITH PROXIES WITH legally sound office policy on consent LIMITED HEALTH LITERACY by proxy is essential for maintaining a. Who has the legal right to Modern health care is very complex, efficient office operations and strong delegate consent to health care and many patients and parents have physician-patient relationships. decisions for the child? poor health literacy, defined as “the degree to which individuals have b. To whom can the power to the capacity to obtain, process, and IMPLEMENTATION SUGGESTIONS consent to health care for a child be delegated? understand basic health information 1. Determine whether the practice and services needed to make will see minor patients without an c. In what circumstances can the 59 appropriate health decisions.” LAR present. It is usually best if power to consent to health care Indeed, nearly 9 of 10 adults have a all physicians within the practice for a child be delegated (eg, hard time understanding routinely adopt the same policy; otherwise, while child is vacationing out of 65 available health information, problems can occur during state with grandparents or while and the Institute of Medicine has coverage situations. parents are traveling overseas estimated that 90 million American 2. If the practice’s decision is to and the child remains home with adults lack the literacy skills to the nanny)? effectively use the health care system not provide nonurgent care to in this country. 59 Informed consent patients without an LAR present, d. For which services (eg, works best when efforts are made to then the policy for the office and radiology, preventive care, help proxies understand the health an information sheet explaining immunizations, laboratory information that is being conveyed it should be provided to patients tests) can the power to consent to them. and their LAR. The policy should to health care for a child be also be made clear during contacts delegated? with new or prospective patients. SUMMARY e. With what limitations can the 3. If the practice decides to provide power to consent to health care When the care provided is done so nonurgent care to patients for a child be delegated? (For in the best interest of the child, the accompanied by someone other example, the proxy may consent liability risk is generally low, even than their LAR, then it should to treatment of a child’s sprained without appropriate consent. This establish a policy and procedural ankle but may not be authorized risk is likely to be higher in certain guide for the office as well as to take the child to the visit with situations, such as in those that a patient information sheet the orthopedic surgeon.) involve immunizations, language that explains the policy. This barriers, limited health literacy, and statement may spell out the LAR’s f. How is authorization of the initial visit. Medical practice is responsibilities in providing and proxy consent verified and primarily regulated by the states, documenting his or her consent- documented? and it is essential that pediatricians by-proxy arrangement. The g. When or how often should are aware of the medical consent pediatrician should educate office information on proxy consent be laws where they practice. Pediatric staff members, particularly those updated? practices need to anticipate that involved in telephone triage and situations that involve consent scheduling appointments, so that 5. The proxy relationship should by proxy can occur for a variety they understand the policy and be verified and documented of reasons. Policies should be their responsibilities, including periodically. In addition, when developed that promote good, verifying the identity of the proxy. the office or pediatrician does not informed decision-making and risk In addition, the pediatrician know the proxy personally, photo management. Care should be taken and practice should determine identification, such as a driver’s to make sure that such policies meet the consent-by-proxy policy of license, may be required.

Downloaded from www.aappublications.org/news by guest on September 27, 2021 e8 FROM THE AMERICAN ACADEMY OF PEDIATRICS 6. Establish an office procedure 7. McAbee GN; American Academy of for providing and documenting ABBREVIATIONS Pediatrics Committee on Medical informed consent for proxies with AAP: American Academy of Liability and Risk Management. LEP, hearing impairment, and Pediatrics Consent by proxy for nonurgent limited health literacy. Similarly, HIPAA: Health Insurance pediatric care. Pediatrics. 2010;126(5):1022–1031 information sheets related to Portability and office policies should be accessible Accountability Act 8. Vukadinovich DM. Minors’ rights to for proxies with LEP and limited LAR: legally authorized consent to treatment: navigating the health literacy. representative complexity of State laws. J Health Law. LEP: limited English proficiency 2004;37(4):667–691 7. A number of state and federal laws VICP: Vaccine Injury 9. Gouveia v Phillips, 823 So2d 215 (Fla affect the ability to give consent by Compensation Program 4th DCA 2002) proxy. 27, 30 Pediatricians need to VIS: vaccine information 10. Bonner v Moran, 126 F2d 121 (DC Cir be aware of these laws (available statement 1941) at www. plol. org). In addition, it is advisable to have legal 11. Mohr v Williams, 104 NW 12 (Minn counsel review office policy and 1905) supporting documents to promote 12. Merz JF. An empirical analysis of the REFERENCES compliance with applicable laws. medical informed consent doctrine: 1. American Academy of Pediatrics search for a standard of disclosure. 8. It is recommended that informed Committee on Bioethics. Informed Risk Issues Health Saf. 1991;2:27–76 consent, including consent by consent, parental permission, and 13. Buie v Reynolds, 571 P2d 1230 (Okla Civ proxy, be included in residency assent in pediatric practice. Pediatrics. App 1977) training and continuing medical 1995;595(2):314–317. Reaffi rmed May education. Such educational 2011 14. Fla Stat §458.331(1)(p) (2014) efforts have been effective 2. American Academy of Pediatrics 15. Health Insurance Portability and in improving knowledge and Committee on Pediatric Emergency Accountability Act of 1996 (Pub L No. attitudes about informed Medicine; Committee on Bioethics. 104-191) consent. 66 Consent for emergency medical 16. Coleman DL, Rosoff PM. The legal services for children and adolescents. authority of mature minors to 9. When in doubt about informed Pediatrics. 2011;128(2):427–433. consent to general medical treatment. consent in a proxy situation, Reaffi rmed September 2015 Pediatrics. 2013;131(4):786–793 pediatricians should use 3. Committee on Bioethics; Committee on 17. Moss v Rishworth, 222 SW 225 (Tex discretion in deciding whether to Genetics; American College of Medical Com App 1920) treat and should base the decision Genetics and Genomics Social, Ethical, 18. Tabor v Scobee, 254 SW2d 474 (Ky Ct on the best interests of the child. and Legal Issues Committee. Ethical App 1951) and policy issues in genetic testing LEAD AUTHOR and screening of children. Pediatrics. 19. Zaman v Schultz, 19 Pa D&C 309 (1933) 2013;131(3):620–622 20. Belcher v Charleston Area Medical Jonathan M. Fanaroff, MD, JD, FAAP, FCLM 4. Cote CJ, Wilson S; American Academy Center, 422 SE2d 827 (W Va Ct App of Pediatrics; American Academy of 1992) COMMITTEE ON MEDICAL LIABILITY AND Pediatric Dentistry, Work Group on RISK MANAGEMENT, 2015–2016 21. Caldwell v Bechtol, 724 SW2d 739 (Tenn Sedation. Clinical report: guidelines 1987) William M. McDonnell, MD, JD, FAAP for monitoring and management Robin L. Altman, MD, FAAP of pediatric patients during and 22. Housel v James, 172 P3d 712 (Wash App 2007) Steven A. Bondi, JD, MD, FAAP after sedation for diagnostic and Jonathan M. Fanaroff, MD, JD, FCLM, FAAP therapeutic procedures. Pediatrics. 23. McQuitty v Spangler, 976 A2d 1020 (Md 2006;118(6):2587–2602. Reaffi rmed Sandeep K. Narang, MD JD, FAAP 2009) March 2011 Richard L. Oken, MD, FAAP 24. Bubb v Brusky, 768 NW2d 903 (WI 2009) 5. American Academy of Pediatrics John W. Rusher, MD, JD, FAAP 25. Garner BA. Black’s Law Dictionary. 8th Committee on Bioethics. Religious Karen A. Santucci, MD, FAAP ed. St Paul, MN: West Publishing Co; objections to medical care. Pediatrics. 2004 James P. Scibilia, MD, FAAP 1997;99(2):279–281. Reaffi rmed May Susan M. Scott, MD, JD, FAAP 2009 26. 25 Tex Admin Code §601.1 6. Committee on Adolescence. Achieving 27. American Bar Association. Medical STAFF quality health services for adolescents. consent law. Available at: www. Julie Kersten Ake Pediatrics. 2016;138(2):e20161347 americanbar.org/ content/ dam/ aba/

Downloaded from www.aappublications.org/news by guest on September 27, 2021 PEDIATRICS Volume 139 , number 2 , February 2017 e9 migrated/ child/ PublicDocuments/ ethical considerations. Pediatrics. 56. Rehabilitation Act of 1973 (Pub L No. medical. authcheckdam. pdf. Accessed 2004;114(3):869–873. Reaffi rmed 93-112, 87 Stat 355 [codifi ed at 29 USC March 7, 2016 September 2010 and 31-41c USC]) 28. Fla Stat Ann §743.0645 (2006) 44. Cohen GJ; Committee on Psychosocial 57. Title VI of the Civil Rights Act of 1964 (42 USC §2000d et seq) 29. Tex Fam Code Ann §32.001(a) (2006) Aspects of Child and Family Health. The prenatal visit. Pediatrics. 58. Ryan C. Language use in the United 30. American Bar Association. Kinship 2009;124(4):1227–1232 States: 2011. American Community caregiving and medical consent laws: 45. Cohen GJ; American Academy of Survey Reports. August 2013. Available an in-depth analysis. Available at: www. Pediatrics Committee on Psychosocial at: www.census. gov/ prod/ 2013pubs/ americanbar.org/ content/ dam/ aba/ Aspects of Child and Family acs- 22.pdf. Accessed March 7, 2016 migrated/ child/ PublicDocuments/ Health. Clinical report: helping summary_ memo2. authcheckdam. pdf. 59. Institute of Medicine, Committee on children and families deal with Accessed March 7, 2016 Health Literacy. In: Nielsen-Bohlaman divorce and separation. Pediatrics. L, Panzer AM, Kindig DA, eds. Health 31. Fla Stat §743.0645(2)(a–e) (2006) 2002;110(5):1019–1023. Reaffi rmed Literacy: Prescription to End Confusion. 32. Fla Stat §709.02, §709.08 (2005) January 2006 Washington, DC: National Academies 33. Del Code Ann Tit 13 §707(b)(6), §708(a) 46. The National Childhood Vaccine Press; 2004 (2006) Injury Act of 1986, 42 USC 60. Kuo DZ, O’Connor KG, Flores G, §300aa-1–300aa-34 Minkovitz CS. Pediatricians’ use of 34. Idaho Code Ann §15-5-104 (2007) 47. NY Public Health Law, Article 25, Title I, language services for families with 35. Cal Fam Code 6902 (2006) §2504 (2012) limited English profi ciency. Pediatrics. 2007;119(4). Available at: www. 36. Department of Children and Family 48. Tex Fam Code Ann 32.001 Services v GM and JJ, 816 So2d 830 pediatrics. org/ cgi/ content/ full/ 119/ 4/ (Fla 5th DCA 2002) 49. English A, Shaw FE, McCauley e920 MM, Fishbein DB; Working Group 61. US Department of Health and Human 37. Ariz Rev Stat Ann §8-514.05(c) (2006) on Legislation, Vaccination, and Services, Offi ce for Civil Rights. Title Adolescent Health. Legal basis 38. American Academy of Pediatrics, VI: Prohibition Against National Origin of consent for health care and Division of Health Policy and Discrimination as It Affects Persons vaccination for adolescents. Pediatrics. Research. Periodic Survey of With Limited English Profi ciency. 2008;121(suppl 1):S85–S87 Fellows No. 58: Pediatricians’ Available at: www.hhs. gov/ ocr/ Experiences With Child Care Health 50. Centers for Disease Control and civilrights/ resources/ specialtopics/ and Safety. Elk Grove Village, IL: Prevention. Vaccine information lep/ . Accessed March 7, 2016 American Academy of Pediatrics; 2004 statements: at a glance. Available at: 62. Revised guidance to federal fi nancial www.cdc. gov/ vaccines/ hcp/ vis/ index. 39. Bravender T, Price CN, English A. assistance recipient regarding Title html. Accessed March 7, 2016 Primary care providers’ willingness to VI prohibition against national origin see unaccompanied adolescents. 51. Kimberlin DW, Brady MT, Jackson MA, discrimination affecting limited J Adolesc Health. 2004;34(1): Long SS, eds. Red Book: 2015 Report English profi cient persons. Fed Regist. 30–36 of the Committee on Infectious 2003;68:47311 Diseases. 30th ed. Elk Grove Village, IL: 40. Grall T. Custodial mothers and fathers 63. Harsham P. A misinterpreted word American Academy of Pediatrics; and their child support: 2011. Available worth $71 million. Med Econ. 2015 at: www.census. gov/ prod/ 2011pubs/ 1984;61(12):289–292 p60- 240. pdf. Accessed March 7, 52. Immunization Action Coalition Web site. 64. Quintero v Encarnacion, no. 99-3258, 2016 Vaccine information statements (VIS). Lexis 30228 (10th Cir 2000) 41. Laughlin L. Who’s Minding the Available at: www.immunize. org/ vis. 65. US Department of Health and Human Kids? Child Care Arrangements. Accessed March 7, 2016 Services, Offi ce of Disease Prevention 2013 Current Population Reports. 53. Borngesser v Jersey Shore Medical and Health Promotion. National Action Washington, DC: US Census Bureau; Center, 340 NJ Super 369 (App Div Plan to Improve Health Literacy. 2013:70–135 2001) Washington, DC: US Department of 42. Fla Stat §709.02, §709.08 (2006) 54. Ku L, Flores G. Pay now or pay later: Health and Human Services; 2010 43. Fraser JJ Jr, McAbee GN; American providing interpreter services in 66. Sherman HB, McGaghie WC, Unti Academy of Pediatrics Committee health care. Health Aff (Millwood). SM, Thomas JX. Teaching pediatrics on Medical Liability. Dealing with the 2005;24(2):435–444 residents how to obtain informed parent whose judgment is impaired 55. American with Disabilities Act 1990 (42 consent. Acad Med. 2005;80(10 suppl): by alcohol or drugs: legal and USC §12101–12213, amended 2008) S10–S13

Downloaded from www.aappublications.org/news by guest on September 27, 2021 e10 FROM THE AMERICAN ACADEMY OF PEDIATRICS Consent by Proxy for Nonurgent Pediatric Care Jonathan M. Fanaroff and COMMITTEE ON MEDICAL LIABILITY AND RISK MANAGEMENT Pediatrics 2017;139; DOI: 10.1542/peds.2016-3911 originally published online January 23, 2017;

Updated Information & including high resolution figures, can be found at: Services http://pediatrics.aappublications.org/content/139/2/e20163911 References This article cites 20 articles, 13 of which you can access for free at: http://pediatrics.aappublications.org/content/139/2/e20163911#BIBL Subspecialty Collections This article, along with others on similar topics, appears in the following collection(s): Current Policy http://www.aappublications.org/cgi/collection/current_policy Committee on Medical Liability and Risk Management http://www.aappublications.org/cgi/collection/committee_on_medica l_liability_and_risk_management Administration/Practice Management http://www.aappublications.org/cgi/collection/administration:practice _management_sub Medical Liability http://www.aappublications.org/cgi/collection/medical_liability_sub Permissions & Licensing Information about reproducing this article in parts (figures, tables) or in its entirety can be found online at: http://www.aappublications.org/site/misc/Permissions.xhtml Reprints Information about ordering reprints can be found online: http://www.aappublications.org/site/misc/reprints.xhtml

Downloaded from www.aappublications.org/news by guest on September 27, 2021 Consent by Proxy for Nonurgent Pediatric Care Jonathan M. Fanaroff and COMMITTEE ON MEDICAL LIABILITY AND RISK MANAGEMENT Pediatrics 2017;139; DOI: 10.1542/peds.2016-3911 originally published online January 23, 2017;

The online version of this article, along with updated information and services, is located on the World Wide Web at: http://pediatrics.aappublications.org/content/139/2/e20163911

Pediatrics is the official journal of the American Academy of Pediatrics. A monthly publication, it has been published continuously since 1948. Pediatrics is owned, published, and trademarked by the American Academy of Pediatrics, 345 Park Avenue, Itasca, Illinois, 60143. Copyright © 2017 by the American Academy of Pediatrics. All rights reserved. Print ISSN: 1073-0397.

Downloaded from www.aappublications.org/news by guest on September 27, 2021