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Consent for the Healthcare of a Child Part 2

The issue of who is authorized to grant consent for the health care and treatment of a minor child is a complicated one, with many layers that are dependent upon the specific circumstances involved. The case is no different when it comes to the consent for the healthcare of a child in Waxhaw. Under North Carolina law, and the laws of virtually every other state in the nation, minor children are not treated the same way as adults. This differential treatment includes issues regarding consent in general but is particularly true when it comes to a child’s health care needs. The main reasons for the difference in treatment under the laws of consent is developmental. In short, social science shows that the prefrontal cortex, or the portion of a person’s brain responsible for rationalizing, is not fully developed until around a person is about 25 years old.

When an Adult Provides Consent for the Child

Not surprisingly, parents of children have an inherent legal authority to consent to medical treatment on their child or children’s behalf and someone who is a legal guardian or custodian is also given the legal authority to consent to medical treatment on behalf of a minor child. If no parent, legal guardian, or custodian is available, then it is possible that a person who is standing in loco parentis - or a competent adult who has informally taken on the responsibility to raise the child - may have the authority to consent to the minor child’s healthcare.

Under North Carolina’s public health law, a person standing in loco parentis is sometimes allowed to consent to immunization of a child, however, North Carolina courts do not grant such deference to someone standing in loco parentis over an adult who has the power to consent to both emergency and non-emergency healthcare for a minor child. Custodial parents and legal guardians in Waxhaw, North Carolina and other parts of the state may decide to give authority to a third-party competent adult to consent for the healthcare of a minor child on a limited or temporary basis. One way a parent or guardian can provide limitations on care to which a third party is authorized to consent is not allowing them to consent to withholding or withdrawing life-sustaining medical procedures among other possible limitations.

When a Parent Will Not Consent to a Child’s Necessary Treatment

While not common, sometimes the parent of a child may refuse to provide consent to medical treatment for the minor that the attending physician maintains is medically necessary for their treatment. North Carolina law provides a legal method for a court of law to allow consent for this treatment and override the parent’s wishes. This legal intervention, however, requires the physician to provide a signed and written statement to the court explaining the particular circumstances and why the treatment is medically necessary. Sometimes, going through this lengthy process can worsen the child’s medical condition and health or even threaten his or her life. With such extreme cases, North Carolina law allows a physician to proceed, over the objection of the nonconsenting parent, with the medically necessary emergency treatment without consent or court order as long as another physician concurs in the decision that the treatment in question is necessary to prevent immediate harm to the child.

When the Law Allows a Minor to Consent

Despite the fact that a person’s brain is not fully developed until around age 25, there are a majority of children who are minors acquire the age of “decisional capacity” - the ability to make decisions comparable to that of an adult - at some point prior to reaching 18 years of age. Of note, 18 is the age for most legal issues that a person is able to provide their own consent. In the setting of healthcare, “decisional capacity” means the capability to understand one’s health status, health needs, and medical options and be able to make a decision regarding them. Generally, “decisional capacity” is analyzed by looking at the individual’s appreciation, understanding, reasoning, and ability to determine a choice and express that choice to others.

In North Carolina, this is a child-specific inquiry and in other words, there is no specific age or set of requirements at which a minor reaches the point of “decisional capacity” under the law. Accordingly, North Carolina allows a minor to consent to his or her own healthcare and treatment if it has been determined that the minor has the requisite decisional capacity in rare cases. The state’s minor consent law allows a minor to provide consent to healthcare treatment for pregnancy (but not abortion); emotional disturbance; controlled substance abuse; and the prevention, diagnosis, and treatment of sexually transmitted diseases.

Contact a Family Law Attorney in Waxhaw

If you or someone you know is handling a family law situation in Waxhaw or anywhere else in North Carolina involving consent for the healthcare of a minor child, speak with an experienced family law attorney immediately. Arnold & Smith, PLLC is a North Carolina law firm that is experienced in family law and these sensitive issues.