clinical brief

NEW AAP GUIDANCE

Before providing any nonurgent

What is ‘consent medical care for a minor without the

legal guardian present, physicians

by proxy’ for
should address a number of impor-
tant questions. First, who has the legal
right to consent to care for the child

medical care?
Practices need a legally sound office policy for
medical care without a legal guardian present.
RACHAEL ZIMLICH, RN
When a child’s life is at stake, pediatri-
cians 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 med-
ical 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 non-
urgent 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 expo-
sure for the physician.
and to whom and in what circum-
stances 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 au-
thorization 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 le-
gally authorized representative (LAR).
“Pediatricians should use their
good judgment in balancing the pa-
tient’s healthcare needs with their
own need for legal protection. Be-
cause pediatricians are primarily

According to the American Academy of Pediatrics’ 2017 clinical

DEFINITION report “Consent by proxy for nonurgent pediatric care,” consent by
OF CONSENT proxy is the “process by which people delegate to another person
the legal right to consent to medical treatment of themselves, for a
BY PROXY minor, or for a ward . . . .”

There are 3 constraints on the right to delegate Individual state laws may mandate a hierarchy of
such consent for children: persons able to give consent by proxy for nonurgent
treatment of a minor child if the parent or LAR
1 2 3 cannot be contacted; however, a notarized power of
The guardian The guardian The right attorney or affidavit may be needed. In order of first
of a minor must must be legally to consent to last, these persons may be:
have the right and medically to medical
to consent competent to treatment of } Stepparent } Adult brother/sister
to medical delegate that the child must } Adult aunt/uncle
} Grandparent
treatment of the right to consent be delegated
child. for medical to a legally
treatment of the and medically Abbreviation: LAR, legally authorized representative.
child. competent adult. From: Fanaroff JM, et al.1

A P R I L 2 017 | C O N T E M P O R A RY P E D I AT R I C S . C O M 27
 clinical brief
concerned with their patients’ wel-
fare, 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 repercus-
sions,” 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, direc-
tor of the Rainbow Center for Pediat-
ric Ethics, co-medical director of the
Neonatal Intensive Care Unit, Rain-
bow Babies and Children’s Hospital,
Cleveland, Ohio, and lead author of
the guidance, says pediatricians pro-
viding 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,
“Hopefully this report will aid
practices to establish clear
rules for medical consent in
nonurgent proxy situations
and . . . convey those rules
to families in order to allow
pediatric practices to both meet
their ethical obligations and
minimize liability risks.”
— JONATHAN M FANAROFF,
MD, JD, FAAP, FCLM
28 C O N T E M P O R A RY P E D I AT R I C S . C O M
OFFICE POLICIES
THAT SUPPORT
CONSENT BY
PROXY
Establish a policy to
determine whether the
practice will even treat
minor patients without an
LAR present. It is helpful for
all physicians in a practice
to adopt the same policy.
If the practice decides not
to provide nonurgent care
without an LAR present,
then the office should
have an information sheet
available to provide to the
patient and the person who
brought him or her. Existing
and new patients should be
informed about consent by
proxy policies in advance.
If a practice does decide
that it will provide
nonurgent care without
an LAR present, a policy
and procedure guide
should be created to spell
out the LAR’s duties to
provide consent by proxy.
Pediatricians should
educate staff members and
schedulers about the policy.
Templates addressing the
key questions of by proxy
consent are also helpful for
front-office staff to use.
| A P R I L 2 017
such as an aunt, grandparent, or nan-
ny,” 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 2010,
addresses the legal and ethical obli-
gations pediatricians have to obtain
consent to care for pediatric patients.
“Hopefully this report will aid prac-
tices to establish clear rules for medi-
cal consent in nonurgent proxy situa-
tions and appropriately convey those
rules to families in order to allow pedi-
atric practices to both meet their ethi-
cal obligations and minimize liability
risks,” Fanaroff says.
Care without consent
All states allow certain services to
be provided without parental con-
sent, 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 med-
ical 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. In emergency cases, phy-
sicians are usually free to treat the
minor without consent and without
worrying about liability.
In nonurgent cases, however, even
a physical exam can be grounds for
legal action claiming negligence or
medical battery, according to the
guidance.
“In general, battery is the unsolic-
ited physical touching of a person.
Medical battery may be alleged if
treatment is provided without ap-
propriate informed consent, when a
procedure is performed that is sub-
stantially different from the one for

which consent was given, when the
treatment exceeds the scope of the
consent, or when a physician differ-
ent than the one to whom consent was
granted performs the procedure,” the
report states. “A physician may face a
battery claim even if the treatment or
procedure may have been performed
without any negligence. When a plain-
tiff (person who files the lawsuit, usu-
ally parents on behalf of their child)
is not satisfied with the results of the
medical treatment or procedure but
is unable to prove negligence in litiga-
tion against the physician, the plain-
tiff may resort to the theory of battery
to seek a recovery.”
Even if no harm can be proven,
damages may be awarded in these
cases. More serious cases can also
carry punitive damages that might
not be covered by malpractice insur-
ance. These charges may also be ac-
companied by discipline from licens-
ContemporaryPediatrics.com/PedsApp
In nonurgent cases, even a physical exam can be
grounds for legal action claiming negligence or
medical battery.
ing boards, according to the guidance.
Whereas liability for treating with-
out consent by the LAR hasn’t been
a big problem for physicians so far,
inadequate informed consent is a
growing issue, especially when those
providing consent have limited un-
derstanding of English or poor health
literacy. To this end, the guidance
urges that consent by proxy be well
understood and that physicians not
ignore the risks involved.
Care that is provided in the best
interests of the child generally car-
ries low liability risk, even without
appropriate consent. However, some
We’ve made
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clinical brief
factors—such as language barriers
or poor understanding of healthcare
procedures—may increase liability
risks, and pediatricians should an-
ticipate situations that might require
consent by proxy and develop office
policies that manage the risks. The
guidance offers several suggestions
for office policies that support consent
by proxy (see sidebar, page 28).
REFERENCE
1. Fanaroff JM; Committee on Medical Liability
and Risk Management. Clinical report: Consent
by proxy for nonurgent pediatric care. Pediatrics.
2017;139(2):e20163911.
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