Question: A 15-year-old boy develops excruciating testicular pain from torsion of the testis. The family internist urged emergency surgery as recommended by the urologist, but the parents refused. Which of the following accurately describes the issue of consent?
A. Even if the boy nods in assent, this would be invalid consent as he is a minor.
B. Acquiesce to the parents, as they have the legal authority to decide.
C. Try to persuade the parents that surgery is in the boy’s best interests, but operate even if they continue to insist on withholding consent.
D. Request a court hearing and treat the boy conservatively in the meantime.
E. Consent is deemed unnecessary in most cases so long as a second independent doctor documents his or her agreement.
Dr. Siang Yong Tan
Answer: C. This hypothetical raises the issue of doing what’s best for a minor in the face of parental refusal of beneficial medical treatment. Here, the boy’s assent may constitute indicia of consent, and should be strongly considered given the surgical indication and the urgency of the circumstances; a two-signature practice merely documents peer agreement and does not constitute legal permission to proceed. Because there is insufficient time to obtain court-sanctioned approval, the doctor should rely on the principle of necessity, which vitiates consent, to do what’s in the best interests of the patient. Thus, C is the best choice under the facts.
Consent is unnecessary in an emergency only if it cannot be readily obtained, and a delay places the patient in jeopardy. The treatment need not be life saving, so long as the potential harm to the patient is significant. This exception is typically provided for in state statutes on informed consent. For example, Hawaii Revised Statutes Section 671-3 (d) stipulates: "Nothing in this section shall require informed consent from a patient or a patient’s guardian when emergency treatment or emergency surgical procedure is rendered by a health care provider and the obtaining of consent is not reasonably feasible under the circumstances without adversely affecting the condition of the patient’s health." This comports with the policy of the American Academy of Pediatrics, which emphasizes the treatment of minors with an identified emergency medical condition regardless of consent issues. Such treatment should never be withheld or delayed because of problems with obtaining consent.
All adults of sound mind are presumed to be competent to give informed consent. But for a minor, the doctor must usually obtain permission from the parents or guardian unless the minor is emancipated, i.e., conducting himself or herself as an adult and no longer under the support or control of the parents, or is a "mature minor." The latter category defines the minor who is able to understand the nature and consequences of treatment. In fact, many adolescents are thought to have medical decisional skills that virtually match those of adults. In commonwealth jurisdictions, the term "Gillick competence" is used to describe a minor under the age of 16 who is deemed to have legal capacity to consent to medical treatment if there is sufficient intelligence and maturity to understand the nature, implications and consequences of treatment.
The mature or emancipated minor, like the adult, is entitled to the constitutional right to accept or forgo medical treatment. In general, courts have respected the minor’s judgment even in the face of parental objections. For example, a court held that a 14-year-old boy should decide whether he wanted his cleft palate and harelip repaired, regardless of his father’s objections to the operation. In another case, the court ordered treatment for a 12-year-old arthritis victim whose parents relied on faith healing, where there was uncontested medical testimony in favor of treatment. In yet another case, a 13-year-old boy was placed under state supervision for purposes of receiving chemotherapy and surgery that was estimated to have a 65% of curing his cancer. The court ruled that the information given by his father regarding the preference for and effectiveness of herbal therapy was wrong, and the minor’s refusal of consent was not an informed one.
Physicians have an ethical and legal obligation to obtain parental permission to undertake recommended medical interventions. In many circumstances, physicians should also solicit a patient assent when developmentally appropriate. In cases involving emancipated or mature minors with adequate decision-making capacity, or when otherwise permitted by law, physicians should seek informed consent directly from patients. Occasionally, a doctor faces the dilemma of parents refusing to give permission for a proposed effective treatment. One should always respect parental values, but the doctor has to look out for the patient’s best interests as well. In situations where the intervention is burdensome or its effectiveness limited, one might ethically acquiesce to parental wishes. However, where the intervention is highly effective or lifesaving with few risks, then the doctor may be obligated to pursue legal means in the face of continued parental resistance. Parental rights over their children’s health care should, in general, be respected, unless there is clear and convincing evidence that the parent’s approach is harming their child. The U.S. Supreme Court has famously said: "Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children." On the other hand, even a mature minor does not have an unfettered right to refuse treatment, especially where such refusal is against medical advice. For example, a 16-year-old was forced, against her will, to accept tube feedings to treat her condition of anorexia nervosa.