From: MEG04@ALBNYDH2.BITNET
Newsgroups: misc.emerg-services
Subject: consent of a minor
Date: 15 Oct 92 14:02:49 GMT
Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU
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I have about 15 pages worth of legal opinions from the General Counsel
of the State Health Department on this complex subject.

A very general summary follows.  This should not be relied upon as
a substitute for consultation with an attorney on specific issues.

1.  A minor is anyone under 18 years of age.  The emancipation of a minor is
renunciation by a parent of all his/her legal duties whereby he/she
surrenders all parental rights to the child.  The presumption is that a
child is not emancipated and the burden of proving emancipation is on the
minor.

2.  In a non-emergency situation, consent of the parent/guardian having
custody of the child is required.  A written consent may or may not be
valid, depending on how specific or general are the terms of the consent
form.  Oral consent is acceptable, but an explanation of the child's
condition, the proposed treatment, and the reason it is needed should be
conveyed to the parent.  In those non-emergency situations where the
consent of the parent is unavailable, whether to treat or not will depend
on the medical circumstances.  If an EMT is faced with a questionable
consent situation, generally the decision to treat should be favored.
If the parents bring suit for assault and battery, they will be complaining
of the EMTs having given treatment for the child's welfare.  If the EMT
does not treat and the parents sue, it will be for abandonment, which makes
a more convincing case to the jury since the EMT did not act in the best
interests of the child.

The EMT should never force treatment on a child where the parents have
refused consent.  Every attempt should be made to explain and document
the explanation of the danger of refusing treatment.

3.  NYS Public Health Law 2504(4) provides that medical services may be
rendered to persons of any age without the consent of a parent or legal
guardian when, in the physician's judgment an emergency exists and the
person is in need of immediate medical attention and an attempt to secure
consent would result in a delay of treatment which would increase the
risk to the persons life or health.
Notice that a physician must make the judgment, which means getting medical
control involved.  This section does not authorize treatment when the
child or parent objects.  See also above regarding situations when medical
control can't be reached or timeliness is crucial.

4.  In this State, a parent or guardian has the right to consent to medical
treatment on behalf of a child.  However, the parent may not deprive a child
of life saving treatment, even when the parents' decision is based on
constitutional grounds, such as religious beliefs.  The decision of the
parent must yield to the state's interest, as "parens patriae" in
protecting the health and welfare of the child.

This probably raises more questions than it answers, but perhaps it gives
folks a framework.

                           Mike Gilbertson
                           (meg04@albnydh2.bitnet)