Law emanates from both state and federal levels of government. In the medical area, state law is generally the more important source of legal guidelines and constraints. It is important to remember that, unlike federal law, state law varies by jurisdiction. Therefore, it is necessary to know the laws of the state in which you practice before making treatment decisions. It is equally important to understand that when state and federal law conflict, federal law, under the doctrine of preemption, usually takes precedence. For example, if the federal government permits abortions and state law does not, the federal law controls.

Both state and federal laws have similar sources. The U.S. Constitution is interpreted by the federal courts, including the U.S. Supreme Court, while state courts interpret the state constitutions. Constitutional rights may differ between the state and federal levels, with state rights being either broader or narrower when compared with the federal Constitution.

Law that is made or interpreted by judges is called case law. Judges, in deciding a particular case, are guided by legal precedents. The process of using decisions of prior courts to decide a case is called stare decisis. Much legal debate exists as to whether the proper function of judges is to interpret narrowly existing case law and statutes or actually to create law in response to a matter before them. Those who oppose “judicial legislation” argue that courts have as their sole responsibility the interpretation of legislative action, that is, the action of elected representatives.

Laws promulgated by the legislature are called statutes and usually appear in bound volumes under various chapters and sections. Generally, when one wishes to clarify the law in a certain area, the first step is to find out whether there is a statute dealing with the issues.

In addition to constitutional law, case law, and statutes, there are laws promulgated by the executive branch of government called executive orders. There are also laws created by state or federal agencies called regulations. State agencies such as a department of public health or a department of mental health and federal agencies such as the Federal Trade Commission enact regulations that serve to clarify and interpret statutes. These regulations of executive agencies have the force and effect of law.

A final distinction of importance is that between civil and criminal law. Civil law involves such actions as medical malpractice, where a plaintiff, the alleged victim, brings suit against a defendant, the alleged wrongdoer, seeking monetary damages for harmful acts. In civil actions, the burden of proof is on the plaintiff, who must prove his or her case by a preponderance of the evidence, that is, more evidence showing that the plaintiff has been wronged than evidence legally exculpating the defendant. In a criminal case, the state acts as the prosecutor and must prove criminal wrongdoing beyond a reasonable doubt. While the primary purpose of a civil suit is to recover damages for an injured plaintiff, the primary purpose of criminal action is to punish a guilty defendant. Such punishment can range from a fine to death.

The general rule regarding consent to medical care is that any competent person who has reached the age of majority, usually 18 or 21 years, may consent to treatment. If a patient is under the age of majority, a parent or legal guardian must usually consent to medical intervention. Every legal rule, however, has exceptions. In the case of an emergency, consent is implied, and neither a parent, legal guardian, nor patient need explicitly authorize the medical care. It is important, however, to document that an emergency existed and what efforts were made to notify the parents of a minor patient. It is also necessary to determine how state law defines an emergency. For example, in Massachusetts, an emergency is defined as the following: “When delay in treatment will endanger the life, limb, or mental well-being of the patient” (1). The definition of an emergency may vary from state to state but generally involves the same concept.

In addition to the emergency exception, minors are legally capable of consenting to their own health care if they are emancipated. Emancipation generally has two statutory definitions. The first is a minor fulfilling an adult status. If a patient is a member of the armed forces; is a parent of a child; is married, widowed, or divorced; or is living separately from and is financially independent of parents, he or she may consent to intervention without informing the parent or guardian. These minors may consent to any kind of medical care.

The second basis of emancipation is where the minor’s health may be endangered and the state wishes to encourage the minor to seek help despite possible parental resistance. Such areas where a minor may consent to treatment under state law include pregnancy, diseases dangerous to the public health, and alcohol or drug dependency. Reasoning that getting treatment is more important than obtaining parental consent, the state in these areas encourages the minor to seek intervention on his or her own authority by allowing treatment without parental consent.
Unlike minors fulfilling an adult status, minors in the second category generally may only consent to treatment for the specific condition creating emancipation.

The separate concept of “mature minor” has received increasing judicial approval. Courts have recognized that there may be situations not otherwise controlled by statute in which it is in the best interest of the minor not to notify parents of the intended medical treatment. If the minor is able to give informed consent to the intended treatment, the mature minor rule may apply.

The initial determination of whether a minor is mature usually rests with the treating health care provider, who assesses the nature of the procedure, its likely benefit, and the capacity of the particular minor to understand fully what the medical procedure involves. Thus, in a situation where a minor is not emancipated, it may still be possible to enter into a provider–patient relationship with the minor and without parental consent on the basis of the provider’s assessment that the minor is mature.

Generally, a health care provider will not be held liable for providing medical treatment without parental consent if he or she relies in good faith on the minor’s reasonable representation that he or she is emancipated. Consents obtained from emancipated and mature minors, and any interventions resulting from such consents, moreover, are confidential. Parents should not be informed unless the minor agrees. Such agreements should be documented in the patient’s medical record.

Some states require health care providers treating minors to inform the parent if the minor’s condition is endangering of life or limb. Under such circumstances, the situation should be discussed with the minor before informing the parent, and this discussion should be documented in the patient’s record. Under circumstances not endangering to life or limb, no information should be shared with the parent without the consent of the minor patient, and billings should not be mailed to parents if they undermine or are likely to undermine the confidentiality of the relationship.

In medical management, disagreements may arise among care providers, minor patients, and their parents. For example, an adolescent diagnosed with an ovarian tumor may resist chemotherapy that her parent requests; or both parents and patient may refuse surgery that physicians feel is medically necessary. Hopefully, these conflicts will resolve with ongoing dialogue and the obtaining of second opinions. If consensus does not emerge, however, the legal options vary, depending on such factors as the age of the patient, the seriousness of the underlying condition, the nature and variety of possible interventions, their contraindications, and the probability of their success.

Courts, for example, would likely order treatment in a minor’s “best interest” if her parents are unwilling to consent to treatment, the underlying condition is potentially fatal, the recommended treatment is the only one available or is clearly preferred, and the risks of treatment are minimal. However, prior to making an order, the court will generally appoint a guardian ad litem. A guardian ad litem (GAL) is generally an attorney or clinician who is appointed to investigate and report to the court regarding the medical necessity of a given procedure and whether it is in the patient’s best interest to perform, or not perform, the procedure. The GAL is generally “neutral,” and renders a report to the court. The court may also appoint an attorney to represent and advocate for the minor patient in court proceedings (2).

Health care providers should obviously resist the coercive imposition of treatment on a minor. If, however, the patient is not “mature,” the underlying condition is serious, and the parents are consenting to its use, the parents’ desires can legally “trump” the minor’s right to refuse.

Obtaining informed consent is a process that involves four distinct steps. The first step, which has already been discussed, is determining who has the authority to consent. The second step is determining whether the person with the authority to consent is competent to consent. Legally, an adult or mature minor is presumed competent until demonstrated otherwise. Parents of an incapacitated patient who has reached the age of majority do not automatically become their child’s legal guardian. They must be appointed by a court, and without such judicial appointment, they do not have the legal authority to consent to their child’s treatment. The provider should be cautious about providing treatment if there is any question regarding a person’s capacity to understand the nature and consequences of a proposed procedure. Such reasons may include cognitive limitations, inebriation, drug use, or mental illness.

The third step in obtaining informed consent involves providing the person who has the authority to consent with all the material information necessary for a reasonable person to make an informed decision. Generally speaking, the patient or parent/guardian must be informed of the nature of the patient’s condition, the nature and probability of the risks, the benefits to be reasonably expected, the inability of the treater to predict results, the reversibility of the procedure, the likely result of no treatment, and the alternatives to the proposed treatment, including the risks and benefits of such alternatives. The provider should keep in mind that the more elective a proposed treatment, the more necessary it is to disclose all risks.

The final step in the informed consent process is obtaining the agreement of the person with the authority to consent. The person with legal authority to consent should sign the consent form agreeing to any interventions after such interventions have been fully communicated and understood. It is important to note that merely obtaining the signature of the person with authority to consent, without going through the other steps in the process, does not constitute informed consent. It is advisable therefore to make a note in the medical record documenting the informed consent process.

Finally, it is necessary for the practitioner to be aware of special situations where the general rules of consent may not apply. Such situations include a child’s being in the custody of the state or a divorce situation where one parent may have physical care of a child but both parents may have legal custody or decision-making responsibility. Other special situations may include abortion, sterilization, management of child abuse cases, and consent to HIV testing (to be discussed subsequently).

To illustrate a special situation, if the Massachusetts Department for Children and Families (DCF) has legal custody of a child, it is authorized to consent to the youngster’s routine medical care e.g., immunizations, preventive health services, and treatment of illnesses. If, however, the required medical interventions are “extraordinary”—for example, “do not resuscitate” orders, the giving or withholding of life-prolonging medical treatment, or the use of antipsychotic medications, then DCF cannot consent but must seek judicial approval before proceeding. If the child is in state custody, the child will have had an attorney appointed to represent the child and that attorney will appear at any court hearings and advocate on the child’s behalf. Additionally, the court may appoint a GAL to investigate and report to the court.

As a general rule, medical records and communications between providers and patients and their families are confidential and should not be released without the written authorization of the patient/guardian or a proper judicial order. Even though parents, including noncustodial parents, usually have access to medical information of their minor children, certain situations may mandate a denial of access. As indicated previously, mature minors and emancipated minors who consent to treatment need not reveal either the consent or the treatment to their parents. Later sections will discuss other exceptions to parental notification, including the prescription of contraceptives to unemancipated minors.

Physicians and other care providers should learn whether statutory or common law privileges protect the confidentiality of a patient relationship. In some jurisdictions statutory privileges exist between psychotherapists and patients, physicians and patients, and social workers and clients. Absent a duty to warn or protect because of a patient’s dangerousness, these privileges prevent professionals from revealing any information about their patients without specific authorization. Case law may further prohibit a professional’s ability to disclose information without written consent.

Regardless of maturity, emancipation, or privilege, teenagers may hesitate to reveal sensitive information to care providers if it is automatically shared with their parents. At the beginning of the professional relationship, therefore, the physician should consider negotiating ground rules with families: that before any sharing, the older minor will be notified as to what will be communicated and why and that to maintain a teenager’s trust, parents will only receive information that is legally or clinically necessary to share—for example, indications of serious illness or potentially life-threatening behavior.

Though all clinical information in a patient’s chart is confidential, recorded data concerning such matters as psychiatric history and HIV status are especially sensitive. To facilitate increased protection of these notes, care providers might stamp the word “confidential” on the relevant pages.

On April 14, 2003, federal privacy legislation called the Health Insurance Portability and Accountability Act (HIPAA) went into effect. Covered entities, including health care providers, must implement standards to protect against the misuse of individually identifiable health information. Such protected health information (PHI) may not be used or disclosed except as required or permitted under the law.