Treating Minors of Divorced Parents: Determining Consent to Treat

Many hotline calls are made by physicians treating minors of divorced parents attempting to determine just who has the right to consent to the child's treatment; who has the right to access the child's records; and who is responsible for payments for the care received.

Often, one parent will bring the child in for care and then the other parent will call concerned or angry that they were not consulted before care was rendered, claiming they would not have approved what was done.

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This places the treating physician in the middle of a very unpleasant situation that is uncomfortable at best and potentially volatile at least.

The tough question confronting the physician is: "Which parent has the legal authority to consent to medical care on behalf of this minor?"

To answer this, we need a better understanding of the respective rights of each parent as defined by the custody arrangement approved by the court.

In a nutshell, there are two types of custody arrangements: physical custody and legal custody. Physical custody means the child lives with that parent and is under his or her supervision. However, physical custody does not always give that parent the legal authority to consent for the child.

Legal custody means this particular parent has the authority to make decisions relating to education, religious practice, and health care. Typically, only the parent with legal custody may consent to the child's medical care and authorize the release of the child's medical record to third parties. Legal custody may be awarded to one parent (sole custody) or to both parents (joint custody).

So in order to resolve custody conflicts in deciding who may give the consent to treat, it is wise to request a copy of the court order relating to custody. This will state the rights of both parents and should be retained in the child's medical record. This should be done during the intake process for new patients before further discussion of treatment. Once you receive the court order relating to custody, be sure that your office contact information accurately reflects the court order.

Also, make sure your staff is aware of who may give consent, authorize the release of records, and who serves as the main contact person for the child.  

 

Authored by
Linda Sue Mangels, BSED, MSED, CPHRM
Senior Risk Management & Patient Safety Specialist

 

If you have questions about this article, please contact us. This information should not be considered legal advice applicable to a specific situation. Legal guidance for individual matters should be obtained from a retained attorney.