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