Sept. 17, 2014 – Parents or legal guardians are vested with the power to make medical decisions for their minor children or wards, but this power is not absolute. Medical decision-making for minors can pose knotty legal and ethical dilemmas for parents, health care providers, and lawyers. In this video, Madison attorney Tyler Wilkinson highlights considerations for attorneys.
When disputes involving medical treatment of a minor arise, attorneys must help clients sort through the alternatives and the potential ramifications. Wilkinson, who advises hospitals, physicians, and health care providers on risk management issues, litigation, government investigations, and administrative issues, said, “Disputes over medical decision-making for minors are difficult precisely because we are making incredibly personal decisions on behalf of someone who is legally incapable of making the decision for themselves.
“Perhaps the hardest part of this legal issue for any lawyer is being mindful that the decision of what medical treatment, if any, is someone else’s to make,” he said. “We cannot substitute our own judgment for the real decision maker.”
Wilkinson offers the following best practices advice if you find yourself caught in a medical decision-making dispute.
Representing the Parents
Understand and explain your client’s legal rights and the legal obligations, as well as the legal consequences of their actions.
Advise the parents that they have the right to consent to treatment on behalf of their child, but they do not have the right to withhold consent for what could be lifesaving treatment. They have an obligation to provide necessary medical treatment.
Warn the parents that the potential consequences of withholding treatment could result in them being reported for suspected neglect or child abuse, and they could face criminal prosecution if the child is injured by their decision.
Representing the Health Care Provider
Advise them about their obligation to provide emergency treatment under the Emergency Medical Treatment and Active Labor Act or the state law equivalent.
Advise them of their obligations imposed by the standard of care in the situation.
Explain what their obligations would be in both the ethical and professional realms.
You are the Appointed Guardian – Know Your Role
- Understand your legal charge. Do you have a legal duty to actually provide consent on behalf of the child or is your role solely to make a recommendation based on the best interests of the child.
Do your homework and once you know all the various legal rights and obligations, ask questions:
Ask the parents what course of treatment if any would they consent to and then ask why.
Is their decision based on a deeply held religious belief?
Is their decision based on a quality of life consideration?
Does the child share the parents’ belief?
If you represent the health care provider, ask if the child’s condition is truly emergent or life threatening.
Understand the medicine, and ask whether the treatment being advocated for is experimental or is generally accepted in the medical community.
Ask the medical provider about the relative success rates of the various treatment options.
Ask the medical provider and colleagues about what the standard of care requires in this situation.
If you are a guardian, ask what the child really wants and see if the child prefers one form of treatment over the other. This can be difficult and you may need the help of a child psychologist
Once you understand the legal landscape and the dynamics of the situation, oftentimes the attorney can find a creative solution that will resolve the dispute and advance your client’s interests.
