Medical Treatment of a Child – implied consent vs consent not required

Medical Treatment of a Child – implied consent vs consent not required – Before a physician can perform any medical treatment or procedure on a patient in Texas, they must first receive authority or consent from the patient. The reasoning behind this is based on the patient’s right to either accept or refuse treatment. This seems simple enough, right?

Well, what if the patient is a child?

The law states that, with limited exceptions, minors cannot legally consent to their own medical treatment. Consent can only be given by someone who is legally authorized to do so – the child’s parents, conservators, guardians, and even the state in some cases. Consent can be given verbally or in writing.

But here is another question: What if that adult is not available, or under suspicion for child abuse?

This is where implied consent and consent not required can come into play. Let’s take a quick look.

Implied Consent

Implied consent to medical treatment is invoked when a child’s parent or legal guardian is not available to give consent, especially if the child has life-threatening injuries. In that situation, the law presumes consent would be granted by the parent or legal guardian. Some examples of this include:

1. The minor is unconscious and needs immediate attention.
2. A sick child is brought to an emergency room by a neighbor. The child’s condition is serious, but doctors cannot tell how serious without running tests. The parents are unavailable.

Consent Not Required

Unlike implied consent, a physician can make the call to provide treatment to a child even if the parents or legal guardians refuse to give consent. This sounds like a crazy scenario, but it’s a scenario that nonetheless exists in today’s world and doctors can be afforded that reasonable discretion.

Some examples where consent is not required to care for a minor can include:

1. Emergency circumstances – The child will likely die before the healthcare provider can consult parents or seek court intervention if the parents are withholding consent.
2. The child is in foster care – The doctor can perform treatment, but must notify the person who is authorized to consent to medical care for the child no later than the second business day after treatment.
3. Suspicion of child abuse – The is scary, but true. If the physician has reasonable grounds to believe the child’s physical or mental condition is due to abuse or neglect, consent for treatment is not required.

It is important to note that the State can consent to medical treatment for a child and has a wide range of power to limit parental freedom and authority in matters affecting a child’s welfare.

This blog was meant to provide a general overview. If you have any further questions on this topic, please contact a team member at Nelson Law Group, PC.

Thanks for reading.