by Ann Bittinger
Because of the establishment of The Florida Bar’s Commission on the Legal Needs of Children and former Florida Bar presidents’ emphasis on the legal rights of children, Florida lawyers have witnessed unparalleled attention being given to children’s rights and legal needs. The emphasis on children’s rights, however, was not just legal in nature. Leaders recognized that improving access to the legal system for children would benefit not only their civic standing, but also their lives in general. No area of the law will have a greater direct and long-term effect on children than laws that will allow them to receive needed medical care.
The main hurdle lower income children must leap to receive health care is clearly the cost of the care itself.1 However, the issue of who can give consent for the treatment of the children and identification of the child’s legal representative who should apply for government assistance to pay for the child’s care, can block children’s access to doctors’ offices and hospitals as much as lack of financial resources.
Generally, minors cannot consent to their own medical treatment. If a physician places his or her hands on a child without the parent’s or legal representative’s consent, the physician could be liable for battery under the common law.2 Additionally, providing treatment without consent could be considered unprofessional conduct under the Medical Practice Act,3 and physicians’ licenses to practice medicine can be suspended for unprofessional conduct.4
There are many situations in which consent to treatment of minors arise. In one situation, for example, a mother threatened to sue a surgeon who performed a circumcision on a newborn boy. The grandmother had taken the child to the surgeon, but the mother, who did not want the child circumcised for religious reasons, knew nothing of the surgery. In another situation, a child suffered hearing loss and ruptured ear drums while the government, social workers, family, and foster parents failed to agree as to who was authorized to give consent for the child to have surgery. Many surgeries have been delayed and cancelled while a hospital’s risk management department, a child’s social worker, and the county courts try to identify a legal representative who can consent to the child’s surgery.
The purpose of this article is to outline the law governing consent for medical and surgical treatment of pediatric patients in Florida. Florida statutes contain a plethora of rules regarding who can give consent for a child’s healthcare treatment. In many cases, minors can consent to their own treatment without the consent of, or notice to, their parents, which may be surprising considering the new Florida law requiring minor girls to notify their parents before obtaining an abortion.5 Parental notification is needed for abortion, but not for a cesarean section, drug therapy, sexually transmitted disease treatment, or birth control prescriptions in some situations. Understanding these laws will allow Florida lawyers and others helping children to overcome potential legal hurdles that could keep children from having access to the healthcare they need. It will also point out inconsistencies in Florida law and examples of how decades-old statutes may no longer reflect modern society.
Minors, Emancipated Minors, and Married Minors
The starting point in identifying the person with standing to consent to the child’s medical treatment is to determine if the child is a minor. Under Florida law, a person under the age of 18 years who is not emancipated is a minor.6 In turn, there are two bodies of law under which it may be determined whether a minor has become emancipated: 1) under the common law or 2) pursuant to statute. A minor is emancipated under the common law if the minor is financially independent and maintains a residence away from his or her parent.7 A minor is statutorily emancipated only if the “disability of nonage” is formally removed by a circuit court upon petition by a natural or legal guardian or, if none is available, by a guardian ad litem.8 Statutory emancipation applies only to 16- and 17-year olds.
An emancipated minor can consent to his or her own medical treatment and surgery.9 Providers may ask for proof that a minor is living away from home and is financially independent to determine if the minor falls within the common law parameters for emancipation. Sometimes, it is even appropriate to contact the minor’s parent and ask whether the child is emancipated.
Although technically not emancipated, the disability of nonage is also removed when a minor marries.10 This means that a married minor can consent to his or her own medical treatment and surgery. As a practical matter, providers may want to ask for a copy of a marriage license when relying on a minor’s statement that he or she is married and therefore has the legal standing to consent.
An unmarried, pregnant minor may consent to medical and surgical care related to her pregnancy by a hospital, clinic, or physician.11 She cannot, however, consent to medical treatment for herself that is not related to her pregnancy.
Furthermore, although what constitutes “related to pregnancy” has not been litigated, whether treatment is “related to” the pregnancy may be based on the facts, circumstances, and medical judgment, but it is possible that amniocentesis, prenatal care, and hospitalization are considered related to the pregnancy. Similarly, a pregnant, unwed minor likely can, for example, consent to a cesarean section but not to an appendectomy. She also likely can seek prenatal care from an obstetrician but cannot consent to medical treatment by an otolaryngologist, for example, for a suspected ear infection. A gray area arises when chronic illnesses are exacerbated by the pregnancy. For example, can a teenager go, without parental consent, to a cardiologist after her obstetrician suggested a cardiologist re-evaluate a dormant heart condition that has not been a problem for quite some time but may be exacerbated by the pregnancy?
In summary, a pregnant minor is not emancipated under Florida law but can consent to medical treatment related to her pregnancy. Accordingly, lawyers assisting a pregnant minor may want to explain to the physicians providing obstetric care to the minor that the minor has the legal authority to consent to any treatment “related to” the pregnancy that the physician should document in the medical record as linked to the pregnancy and the related care, or otherwise obtain the pregnant minor's parent’s consent.
Giving birth does not emancipate a minor, neither does becoming a father result in emancipation. Thus, an unmarried minor who has given birth remains unable to consent to her own medical treatment.
She can, however, consent to medical or surgical care for her child.12 For example, if a 17-year-old mother and her child have sore throats and the minor mother thinks she and her child were exposed to strep, the minor mother has standing to consent to a physician examining her child’s throat, but under Florida law she lacks standing to consent to the physician looking at her own throat. In fact, the Florida Supreme Court has pointed out that a minor, unwed mother may make life-or-death decisions about her baby and can put her baby up for adoption without parental consent “even though this decision clearly is fraught with intense emotional and societal consequence,” but cannot consent to her own surgery.13 In contrast, if the minor mother marries, she has the legal authority under Florida law to consent to her own medical treatment and to surgery, gaining greater legal standing through marriage than by becoming a mother.
Often, providers will not require parental consent for routine treatment of young mothers. That is because the person who would have standing to bring a battery claim, the minor mother’s parents, usually treat the minor as having the maturity to make decisions on her own relating to her medical care. Under the law, however, an unmarried mother under age 18 is not emancipated under Florida law and her parents or legal representative, thus, must consent to her medical and surgical treatment.
A lawyer assisting a minor, unwed mother who is financially independent from her parents may want to explore establishing statutory emancipation so that she has the legal standing to consent to her own medical treatment. Lawyers assisting young mothers who live with their parents should advise the minor mother’s parents that their consent is still required for their daughter’s medical and surgical treatment. And, lawyers advising young mothers who are living with another relative may want to explore the option of having that relative appointed as the minor mother’s legal representative for healthcare consent purposes.
Custody alone is irrelevant under Florida law in determining if a parent has the right to consent to his or her child’s medical care. If the minor’s parents are divorced and only one has custody, either parent may consent to medical or surgical treatment for the child unless a court has held that shared parental responsibility would be detrimental to the minor or has otherwise stated that one parent had the exclusive right to consent to medical or surgical treatment. 14 A provider should ask for proof that a court made such a ruling. In the absence of such a ruling, a provider is protected as long as one parent consents to the medical or surgical treatment.
This can create a tug-of-war between divorced or separated spouses who are, in effect, using their child as leverage in their marital dispute. This seems to arise most often when children need in-patient or full-day treatment for psychiatric issues related to depression, often caused by the family discord. One parent thinks the treatment is needed and the other parent thinks it is not. For example, a mother may admit the child on Monday, only to have the father take the child home against the physician’s medical advice on Tuesday and the mother re-admit the child on Wednesday. Other times, however, the noncustodial parent simply wants more involvement in the child’s life and withholds his or her consent until he or she is given more information and obtains a better understanding of the child’s needs.
Healthcare providers and hospitals are advised to seek alternative means of settling spousal disputes, such as asking the physician, clergy, social workers, or the spouse’s family members or friends (with the spouse’s consent) to sit down face-to-face with the spouses to discuss the matter. Often, if the physician personally meets with both spouses and explains the need for the child’s medical or surgical treatment, the spouse who did not want to consent to the treatment has a change of heart. Another option is to hold a meeting with the spouses and their divorce attorneys to see if a consensus can be reached, but that often revives tension from the divorce, which is not productive.
Lawyers should use the court system as a last resort in spousal disputes. In rare circumstances, an emergency modification of a divorce order or a new order may be entered by the court that presided over the former spouse’s divorce. Such situations often require an emergency hearing in which a physician may be asked to testify as to the need for the child’s medical or surgical treatment. Hospital risk managers often get involved to explain the dispute between the parents and the hospital’s predicament.
Although there is no Florida case on point, it is widely understood that if one parent consents to the treatment, the provider is protected and the medical or surgical treatment may go forward. The other parent then cannot sue the provider for battery if the treatment commences without his or her consent. In other words, one parent’s consent is enough as a matter of law. The provider has no duty to obtain the consent of both parents.
An exception to the rule that a parent or legal guardian must consent to a minor’s medical or surgical treatment arises in the situation of emergencies. Florida law provides for a detailed procedure for providing medical or surgical care to a child in an emergency situation without the parent’s or guardian’s consent. The statute defines an emergency as a situation in which there is an accident or the patient is suffering from an acute illness, disease, or condition, if within a reasonable degree of medical certainty, delay would endanger the health or physical well-being of the minor.15 Specifically, in an emergency, the physician and hospital are prohibited from providing medical or surgical treatment to the child unless: 1) the minor is unable to reveal the parent’s or guardian’s identity and such information is unknown to anyone who took the child to the hospital, or 2) a parent, guardian, or legal custodian cannot be immediately located by telephone at their place of business or residence.
Accordingly, the law puts the burden on physicians and hospitals to inquire as to the whereabouts of a parent and guardian and to attempt to contact him or her if the child or those accompanying the child make the name of the parent or guardian known. Providers should document in the medical record whether the child’s parent or guardian was known and if the providers attempted to contact him or her.
In turn, if treatment is provided, the provider must notify the parent or guardian as soon as possible after the emergency medical or surgical care is provided.16 By law, the hospital medical record must reflect the reason contact was not initially obtained and contain a statement by the attending physician that immediate emergency medical care or treatment was necessary for the patient’s health or physical well-being.
When Others Can Consent
Some children do not live with their parents. Some may have no contact with their parents because their parents are in jail or they were raised by relatives since birth. Some parents may be overseas or out of town on assignment in the military or work and the children are living with a relative or stepparent. The child may be in jail or living with a foster parent. In such cases, healthcare providers and social workers often face a dilemma as to who can consent to the child’s medical treatment and surgery. Determining who, other than the parent, can consent to a child’s medical or surgical treatment turns on whether the child is in the custody of the state.
When children who are not in state custody require medical attention but their parents cannot be contacted, a provider may obtain consent to provide “medical care or treatment” — but not to perform surgery — from the following persons, in the following order: 1) a person with power of attorney;17(2) stepparent; 3) grandparent of the minor; 4) an adult brother or sister of the minor; or 5) an adult aunt or uncle of the minor.18
For example, a six-month-old child is being raised by his grandmother because his mother gave birth while in jail. The child requires immunizations. The grandparent takes the child to the pediatrician or county health department, but the provider refuses to administer the shots because the parent is not there to initial the immunization forms. A lawyer helping the grandmother, the pediatrician, or county health department should first attempt to contact the mother in jail and request her to sign a faxed copy of the immunization forms. If that is not possible, the lawyer would contact, in order, the statutory list of alterative consent providers. Specifically, the lawyer would first determine if the mother gave the grandmother a power of attorney for the child’s medical care. If not, the lawyer should prepare this document and ask the mother to sign it to facilitate healthcare consent issues in the future, because the provider would have proper consent if the grandmother presented the power of attorney. If time was of the essence in seeking care, however, the lawyer would attempt to comply with the next category in the statute: consent from a stepparent. If there is no stepparent, the lawyer would proceed to the next category: consent from a grandparent of the minor. In turn, the provider would document in the medical record the attempts to reach the mother and would then provide medical treatment pursuant to the consent of the grandparent.
Significantly, the statutory list of alternative persons who may provide consent applies only to routine medical care.19 If, for example, in the scenario above, when getting the baby’s immunizations and routine baby care, the physician found something that required surgery, the surgeon and the hospital would have to get the mother’s consent before the surgery is performed.
Because of the legal quagmire that can arise when a child being raised by individuals other than his or her parents requires surgery, and because of the steps nonparents have to undertake with different providers and hospitals to get treatment for the child until he or she reaches 18, prudent lawyers helping such children should either obtain powers of attorney from the parent or a court ordered guardianship of the child by the nonparent. Furthermore, although terminating parental rights is often a difficult and lengthy process because of the constitutional issues involved, attorneys can, upon proper evidence, obtain guardianships or other orders that allow the caretaker to consent to the child’s medical and surgical care. Lawyers should make sure the order includes both medical and surgical care. If the language is limited to “medical” care, many hospitals and providers will not interpret an order for “medical” care to include surgery due to the differentiation between medical and surgical care in the Florida statutes.
Additionally, if a person does not fit within one of the five categories enumerated in the statute, that person cannot consent to the medical treatment. For example, a babysitter cannot consent to a child’s treatment. Many babysitters or nannies take children to the doctor for routine or follow-up care, for example, a 10-day follow-up after antibiotics have been administered for an inner ear infection. The providers often believe that, because the parent already consented to the treatment at the initial visit, they still have the parent’s consent to examine and treat the child in the follow-up visit. Practically speaking, the risk of a battery claim may be remote, but the risk does exist. Under such situations, if the condition requires additional treatment, perhaps a parent can be reached on the telephone to provide consent to the treatment.
If the child is a foster child in state custody, the Department of Children and Families has “the right . . . to provide the child with . . . ordinary medical . . . care.”20 The state, not the foster parents, has the legal authority to consent to the foster child’s medical treatment. However, for surgery to be performed on a foster child, a court must order the surgery.21
Specific Health Situations When Minors Can Consent
Florida law contains a number of exceptions to the rule that minors cannot consent to medical treatment. In enacting those exceptions, the legislature recognized that, in certain situations, minors will not seek treatment if doing so requires them to disclose the medical condition to their parents. In turn, the rationale was that it was better for minors to receive medical treatment for certain diseases or conditions than to go without any treatment for fear of being disciplined by their parents. The Florida electorate disagreed with this rationale, however, in the case of abortion, as described below.
• STDs — Any minor may consent to examination for and treatment of sexually transmissible diseases.22 The law even provides that the occurrence of the consultation, examination, and treatment cannot be divulged in any direct or indirect manner, including sending a bill to the parent. As a result, providers should have a system in place so that insurance providers are not billed for STD treatment, which is often difficult because co-payments are often requested prior to medical care being provided, and minors may not realize that, if their parents’ insurance pays for the care, their parents will automatically receive an explanation of benefits for the treatment. As a result, a lawyer helping a child receive treatment for an STD or helping the physician who is providing such services may want to make sure the patient pays in cash for the visit if the child could be harmed if the parent learned of the treatment. Attorneys for healthcare providers should inform their clients of the need to shelter this superconfidential medical STD treatment information from parents.
• Maternal Health and Contraceptive Information and Services — Minors may receive, without parental consent, maternal health and contraceptive information and services of a nonsurgical nature only if the minors are married, have become parents, are pregnant or, in the opinion of the physician, would suffer probable health hazards if such services were not provided.23 There is no exception for situations in which the minor may be the victim of sexual abuse or incest. Under this law, a sexually active, nonpregnant, unmarried 17-year-old who has no children cannot receive birth control without parental consent unless she would suffer a “health hazard” by failing to obtain the prescription. The statute further states that insertion of temporary internal contraceptive devices are not deemed surgical procedures. That means that a minor could have an intrauterine device (IUD) inserted without parental consent so long as she was married, already had a child, or otherwise would suffer a “health hazard.”
For example, if a social worker wanted to assist a minor with obtaining a contraceptive pill, and consulted with an attorney on whether it could be done without parental consent, the lawyer could advise that the child could go to the doctor and receive information without her parent’s permission only if the minor was already pregnant, a mother, married, or if a “health hazard” would result.
The term “health hazard” is undefined in the law. One could argue, based on the recent findings of the American Academy of Pediatrics (“AAP”), that any developing minor’s pregnancy itself is a “health hazard.”24 If it were not, why would medical treatment be needed if the child became pregnant? Indeed, the AAP reports that pregnant adolescents have more complications, lower birth weight infants, hypertension, anemia, and prematurity than adult women. A lawyer defending a physician who sought to prescribe the contraceptive pill to a 17-year-old unmarried, nonparent teen would advise the physician to document the health hazards that were probable to result if the teen became pregnant.
It is interesting to contrast the STD law with the pregnancy/maternal health law because the STD law would provide a minor more rights than the pregnancy/maternal health law. Florida allows a doctor to treat any minor for herpes, for example, but can share contraceptive information only if the minor is already pregnant, already a parent, is married, or would have a probable “health hazard” if the information is not shared. In other words, a minor has the right to medical treatment to prevent and treat STDs but not to prevent pregnancy.
• Abortion — A physician is subject to discipline under the Medical Practices Act if he or she performs an abortion on a girl age 17 or younger without giving the girl’s parent or legal guardian notice, in person or by telephone, of the planned abortion 48 hours in advance of performing the procedure.25 If a referring physician provides the notice, then the physician who actually performs the abortion must receive a written statement from the referring physician certifying that the referring physician has given notice. If notification in person or by phone is not possible after a reasonable effort has been made, the physician must send a letter by certified mail to the last known address of the parent or guardian.
Notice is not required if a medical emergency exists and there is insufficient time for the attending physician to comply with the notification requirements. If a medical emergency exists, the physician may proceed but must document reasons for the medical necessity in the patient’s medical records. Notice is not required if the minor is or has been married, is statutorily emancipated, or has a minor child “dependent on her.” Having given birth before does not meet the exception.
A circuit court may waive the notice requirement only if the court finds “by clear evidence” that either (1) the minor is “sufficiently mature to decide whether to terminate her pregnancy,” or (2) there is evidence of child abuse or sexual abuse of the girl by one or both of her parents or her guardian or (3) that the notification of a parent or guardian “is not in the best interest of the girl.”26 Denials may be appealed on an expedited and confidential basis to the Florida Supreme Court.
• Substance Abuse Treatment — A physician and other providers, including psychologists, social workers, and therapists, may provide substance abuse services to a minor without the patient’s parent’s consent.27 Thus, a lawyer advising a minor about substance abuse treatment could tell the minor that under Florida law, he or she can receive treatment for substance abuse without the consent of his or her parent. The law also prohibits the release of information about such treatment without the minor’s consent. Even when a parent consents to treatment, medical information about the substance abuse treatment cannot be released without the parent’s and the minor’s consent.28 A similar federal law may also apply.29
• Outpatient Emotional Crisis Services — A child 13 years old or older can receive, without parental consent, mental health diagnostic and evaluative services or individual psychotherapy, group therapy, counseling, or other forms of verbal therapy from a licensed mental health professional.30 A lawyer advising a minor about his or her right to receive treatment without parental approval, however, should be aware that there are limitations to the number of sessions and type of treatment that can be provided without parental consent. Also, unless the parent participates, the parent does not, according to the statute, have to pay for the treatment.
By understanding these laws affecting minors’ access to healthcare, lawyers can assist nonparents who are raising children get the medical care the children need. Raising awareness of who can consent to medical care to minors raises issues of possible inconsistency and out- datedness in the law. Does Florida law adequately represent today’s society in terms of implementing a process by which nonparents can consent to medical treatment? When abandoned babies are born to drug addicted mothers and raised by aunts and grandparents, should the law require a formal guardianship designation before the child can obtain surgery? Should parents have to consent to a doctor talking to a minor about birth control, particularly where the law does not require consent for STD treatment? These are the issues that Florida legislators, courts, and citizens will have to address in order to provide minors with appropriate access to health care.
1 The Center for Economic and Policy Research published a 2004 study stating that, between 1999 and 2004, the percentage of children with health insurance from their parents’ employers dropped 6.5 percent. Additionally, a Families USA study reported that Florida has 274,000 low income parents who are uninsured but who, because they make more than 200 percent of the amount that marks the poverty line ($29,260 for a family of three), do not qualify for Medicaid. The HealthCare Safety Net: Millions of Low-Income People Left Uninsured, Families USA (July 2001).
2 See, e.g., Gouveia v. Phillips, 823 So. 2d 215, 226 (Fla. 4th D.C.A. 2002).
3 Fla. Stat. §458.331(p) (2005) and Fla. Stat. § 456.072(1)(aa) and (1)(b), (2005).
4 Fla. Stat. §456.072(2)(b) (2005).
5 Fla. Stat. §390.011115 (2005). Justice Anstead points out this inconsistency in his concurring opinion in North Florida Women’s Health and Counseling Services, Inc. v. Florida, 866 So. 2d 612, 640 (Fla. 2003).
6 Fla. Stat. §743.07 (2005).
7 Ison v. Florida Sanitarium Benevolent Assn., 302 So. 2d 200 (Fla. 4th D.C.A. 1974); Doerrfeld v. Konz, 524 So. 2d 1115 (Fla. 2d D.C.A. 1988).
8 Fla. Stat. §743.015 (2005).
9 Fla. Stat. §743.015(7) (2005).
10 Fla. Stat. §743.01 (2005).
11 Fla. Stat. §743.065(1) (2005).
12 Fla. Stat. §743.065(2) (2005).
13 North Florida Women’s Health, 866 So. 2d at 640.
14 Fla. Stat. §61.13(2)(b)(2) (2005).
15 Fla. Stat. §743.064(1) (2005).
16 Fla. Stat. §743.064(3) (2005).
17 A power of attorney must be signed by the parent, guardian, or established legal representative in the presence of two witnesses and must be notarized. Fla. Stat. §§709.02, 709.08 (2005).
18 Fla. Stat. §743.0645(2) (2005).
19 Fla. Stat. §743.0645(1)(b) (2005).
20 Fla. Stat. §39.01(70) (2005); Department of Children and Families v. G.M., 816 So. 2d 830, 831 (Fla. 5th D.C.A. 2002).
21 G.M., 816 So. 2d at 832.
22 Fla. Stat. §384.30.
23 Fla. Stat. §381.0051(5).
24 Adolescent Pregnancy: Current Trends and Issues, 116 Pediatrics 281-86 (No. 1 July 2005).
25 Fla. Stat. §90.011115(3) (2005).
26 Fla. Stat. §390.011115(4) (2005).
27 Fla. Stat. §397.601(4) (2005).
28 Fla. Stat. §397.501(c)(2) (2005).
29 42 U.S.C. Part 2.
30 Fla. Stat. §394.4784 (2005).
Ann Bittinger, board certified by The Florida Bar in health law, is the president of The Bittinger Law Firm in Jacksonville, and handles healthcare, corporate, and contractual matters. She received her B.A., cum laude, from The American University in Washington, D.C. and her J.D. from The University of Kansas School of Law. Ms. Bittinger is also vice chair of the American Health Lawyers Association’s Physician Organizations Committee and is past chair of the Health Law Section of the Jacksonville Bar Association. She thanks Jessica Sexton for her assistance with this article.