What is ‘consent by proxy’ for medical care?
When a child’s life is at stake, pediatricians rightfully rush to action—even if there isn’t someone present to consent to treatment of the child.
What about in everyday practice? The daily life of families is changing, and more often persons other than parents are bringing children to medical appointments. Should you treat these children, and how can consent be provided?
In a recent report published in Pediatrics, the American Academy of Pediatrics offers guidance on treating minors brought in by individuals who are not their legal guardians for nonurgent medical care.1 In these cases, the grandparents, childcare provider, or other caregiver may give consent by proxy for care, but this consent can also open the door to liability exposure for the physician.
Before providing any nonurgent medical care for a minor without the legal guardian present, physicians should address a number of important questions. First, who has the legal right to consent to care for the child and to whom and in what circumstances can the power of consent be delegated in their absence? What are the limitations on the right to delegate consent for the minor, and how is authorization of consent verified and documented? Physicians should also be aware of when and how often proxy consent should be updated.
This report addresses the specific liability risks of providing nonurgent medical care without permission or consent directly from the child’s legally authorized representative (LAR).
“Pediatricians should use their good judgment in balancing the patient’s healthcare needs with their own need for legal protection. Because pediatricians are primarily concerned with their patients’ welfare, discretion should be used to differentiate situations in which care can be delayed pending appropriate LAR consent from situations in which the pediatrician should provide care and accept the risk of legal repercussions,” the guidance states. “Careful planning and good office policies can minimize those instances.”
Jonathan M Fanaroff, MD, JD, FAAP, FCLM, associate professor of pediatrics at Case Western Reserve University School of Medicine, director of the Rainbow Center for Pediatric Ethics, co-medical director of the Neonatal Intensive Care Unit, Rainbow Babies and Children's Hospital, Cleveland, Ohio, and lead author of the guidance, says pediatricians providing nonurgent care to a patient without a parent present need to think about the process by which the legal decision-maker delegates to another person the right to consent to medical treatment for the child.
“Children are often brought to the pediatrician for nonurgent care by caregivers other than the parents, such as an aunt, grandparent, or nanny,” Fanaroff says. “In these situations, it is important for the pediatrician to have considered how to establish rules for medical consent and notify families of these policies.”
The guidance, updated from a 2010 version, addresses the legal and ethical obligations pediatricians have to obtain consent and care for pediatric patients.
“Hopefully this report will aid practices to establish clear rules for medical consent in nonurgent proxy situations and appropriately convey those rules to families in order to allow pediatric practices to both meet their ethical obligations and minimize liability risks,” Fanaroff says.
All states allow certain services to be provided without parental consent, but these are generally limited to services that are reproductive in nature. In most other cases when an LAR cannot be present, a physician is required to obtain consent for medical or surgical tests, procedures, or treatment of a minor. Consent can be obtained from the LAR by phone if the minor is brought in by another adult, but having a witness confirm and document the consent is best practice. Emergency cases are another story, and physicians are usually free to treat the minor without consent and without worrying about liability.