Minors and Medical Consent

A minor is any person under eighteen years of age. The general rule throughout the United States is that minors may not consent to medicat treatment on their own behalf without the approval of a parent or guardian. However, the Florida Legislature has addressed a number of exceptions to this proposition and incorporated them into the laws of Florida. This article is intended as a review of those statutes which allow minors to consent to certain procedures without parental or guard­ian approval.

Emergency Medical Care

The courts in most states, including Florida, have long recognized the right of a physician to treat a child without parental consent in emergency situations. This is generally understood to include those circumstances where the life of the child is at risk or where he is in imminent danger of suffering bodily harm.

The Florida Legislature has codified this right in Florida Statute 743.064. The Act provides that a physician may render care or treatment to any minor if, within a reasonable degree of medical certainty, delay in initiation of emergency medical care or treatment would endanger the health of the minor. It provides, however, that this emergency care must be administered in a hospital or college health service. In addition, the Act is only applicable if parental consent cannot be obtained immediately for one of the following reasons:

1. the minor's condition has rendered him unable to reveal the identity of his parents;
2. the parents, guardian or legal custodian cannot be immediately located by telephone at their place of residence or business;

If this section is utilized to authorize treatment, notification to the parents must be accomplished as soon as reasonably possible after the emergency care has been administered. A note must additionally be made in the medical records reflecting the reason that consent was not initially obtained and affirming the fact that immediate emergency medical care or treatment was necessary for the patient's health.

Although this statute restricts the care to a hospital or college health service, it would seem that Florida case law would allow emergency medical services without parental consent in any setting necessary to avoid death or serious harm to the child.

Pregnancy and Abortion

Pursuant to Florida Statute 743.065, an unwed pregnant minor may consent to the performance of medical or surgical services relating to her pregnancy by a hospital, clinic or physician. In addition, the unwed minor mother, once her child is born, may consent to care or services for her child.

Florida Statute 390.001 deals with the termination of pregnancy and consent of minors. It provides that a physician may rely upon the written informed consent of a parent, custodian, legal guardian or a court order. A court order offers the pregnant minor an opportunity to obtain consent without her parents being involved. If she is able to demonstrate to the court that she is sufficiently mature to give an informed consent to the procedure, that a parent has unreasonably withheld consent, or that she is in fear of physical or emotional abuse if her parent were requested to consent, the court may grant such an order. This can be done on an emergency basis in an uncontested hearing. The court order would then be provided to the physician and he may proceed with the termination of pregnancy based upon it alone.

Even if the above requirements have not been complied with, a physician may terminate a pregnancy if a medical emergency exists. To do so, however, he must have obtained at least one corroborative medical opinion attesting to the medical necessity for an emergency medical procedure and to the fact that to a reasonable degree of medical certainty, the continuation of the pregnancy would threaten the life of the pregnant woman.

Venereal Disease, Drug and Alcohol Abuse

Florida Statute 384.061 provides for consent by minors affiicted with, or exposed to, an infectious, contagious or communicable disease designated as a venereal disease. However, the physician must make an attempt to persuade the minor to permit him to divulge the nature of the condition to the parent or parents of the minor. Regardless of the minor's descision, a physician may use his own discretion in determining whether to divulge this information himself to the parent, custodian or guardian.

Pursuant to Florida Statute 397.099 and 396.082, a minor may consent to rehabilitative or medical treatment for drug or alcohol abuse from a private physician, hospital, public clinic or facility administered or licensed by the Department of Health and Rehabilitative Services.

Blood Donations

A minor who has reached the age of seventeen, may give consent to the donation, with compensation, of his blood and to the penetration of tissue which is necessary to accomplish such designation. It must be noted, however, that if a parent objects in writing to the donation or penetration of the skin, it may not be done without the parent's approval.

Aside from the statutory provisions outlined above, there are two other categories into which a minor may fall to allow him to consent to medical care and treatment. The first of these is the emancipated minor. An emancipated minor is generally thought of as an individual who lives apart from his parents and who is no longer dependent upon them for support or services. If a minor falls within this category, he may consent to medical care and atten­tion for himself. However, if there is some confusion or his situation is unclear, the physician should obtain the consent of a parent or guardian. (It is interesting to note that Florida does recognize, by statute, the right of a minor to consent to care if he is married or has ever been married in the past.)

The second category is the mature minor. He is generally described as a child who has reached a physical and mental age that allows him to fully comprehend the nature of the medical treatment and consent to same. Unfortunately, there is no specific age which can be used as a guide. Obviously, this is an amorphous area of the law and fraught with danger for the physician. As a result, unless the physician is dealing in an emergency or a situation which is covered by statute, he should endeavor to obtain the consent of a parent of guardian.