February 02, 2012

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.

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.

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