………………..…………………………………………………………………………………………………………………………………….. Legal Issues Related to Consent, Custody and Abuse Leslie McCarthy, Esq. Associate General Counsel Nationwide Children’s Hospital

………………..…………………………………………………………………………………………………………………………………….. 1.Legal issues regarding consent. 2.Common custody issues encountered in pediatric clinical care. Goals for today

………………..…………………………………………………………………………………………………………………………………….. Consent Requirements: What is consent? Person authorized to give consent must Freely provide consent. Be able to verbalize understanding of patient’s condition. Verbalize understanding of the nature of the proposed treatment. Be aware of the reasonably known risks, benefits and alternatives. Know who is going to perform the procedure.

………………..…………………………………………………………………………………………………………………………………….. Consenting Parties: Who can consent? An Adult may consent to his/her own treatment unless they are incapacitated. What about minors?

………………..…………………………………………………………………………………………………………………………………….. Categories of Who Can Consent for a Minor Parent or legal guardian; Someone other than parent or legal guardian to whom authority has been delegated; Minor him or herself under limited circumstances.

………………..…………………………………………………………………………………………………………………………………….. Definition of a Minor Under OH law: A person under 18 years of age; OR A person under 21 years of age who is physically or mentally handicapped so as to remain dependent on their parent or guardian

………………..…………………………………………………………………………………………………………………………………….. Parental Consent Under Ohio law a “parent” can consent for medical treatment of a child. –Either parent may consent. –Parents separated or divorced: Same rule applies unless a Court has issued an order allocating healthcare decision-making power to one parent. Ask for a copy of the Court order and review with Legal Services if necessary.

………………..…………………………………………………………………………………………………………………………………….. Unmarried Dads Presumption under Ohio adoption statute that an unmarried female who gives birth to a child is the sole residential parent and legal custodian. There may be situations when this presumption does not carry the day for purposes of consent: If mom does not dispute that Dad is the dad  Dad can consent. If Dad’s name is on the birth certificate or there is other evidence of paternity  Dad can generally consent. Dad can establish paternity through the court process. If Dad is the only parent available and there is no dispute that he is the dad, Dad can generally consent.

………………..…………………………………………………………………………………………………………………………………….. Same Gender Parents The law on this subject is new and developing. –Obergefell v. Hodges: requires Ohio to recognize same-sex marriages that occurred in other states and permit same-sex couples living in Ohio to marry. –The rights, privileges, obligations and responsibilities that married heterosexual couples have enjoyed are now available to lesbian and gay couples.

………………..…………………………………………………………………………………………………………………………………….. Same Gender Parents For same-gender couples, it is often the case that there is only one legal parent even though two people may equally parent the child. –Status as a legal parent is automatically conveyed to the parent who has a biological connection to a child. –For adopted children, generally only one parent will have officially become the adoptive parent.

………………..…………………………………………………………………………………………………………………………………….. Same Gender Parents Consent by non-biological parent: –Parentage determination by Court –Formal adoption –Name on birth certificate –Parties are in agreement –Delegation of authority to consent

………………..…………………………………………………………………………………………………………………………………….. Minor Moms As long as foundation of consent is present, Mom can consent for her child regardless of her age. Ironically, Mom cannot consent for herself.

………………..…………………………………………………………………………………………………………………………………….. Others who are authorized to consent for minors: Court appointed Legal Guardians State Agency who has custody of a minor. Power of Attorney Given to Residential Grandparent (ORC ) Military Power of Attorney (ORC ) Grandparent – if a valid caretaker authorization has been filed with Court (applies when parent cannot be located). Anyone else to whom authority to consent has been delegated by someone with appropriate authority (usually the parent).

………………..…………………………………………………………………………………………………………………………………….. Emancipated Minors Factors to Consider: Minor is married. Minor is in the armed forces. Minor lives away from his/her parents. Minor does not rely on parents financially. Minor has evidence of his/her own income. Minor is incarcerated in an adult penal institution. Minor is of an older age.

………………..…………………………………………………………………………………………………………………………………….. Minor Him or Herself An emancipated minor may consent to his/her own treatment. How do we know if someone is emancipated? –He/she must be independent or self sufficient and/or can demonstrate that they are considered an adult.

………………..…………………………………………………………………………………………………………………………………….. Other Consent Situations- Venereal Diseases- ORC A minor may consent for the diagnosis and treatment of any venereal disease by a licensed physician, and the consent of the parent or legal guardian is not required. Parent or legal guardian is not liable for payment without prior consent.

………………..…………………………………………………………………………………………………………………………………….. HIV Testing- ORC (B) A minor may consent to an HIV test. Parent or legal guardian is not liable for payment for the test.

………………..…………………………………………………………………………………………………………………………………….. Drug-Related Treatment- ORC A minor may consent for the diagnosis or treatment by a licensed physician of any condition that is reasonably believed to be caused by drugs or alcohol. The physician or any person acting at his or her direction is immune from civil or criminal liability for assault or battery. Parent or legal guardian is not liable for payment.

………………..…………………………………………………………………………………………………………………………………….. Outpatient Mental Health Care ORC A minor 14 years of age or older can request outpatient mental health services without the consent of the minor’s parent or legal guardian. Excludes the use of medication. Limits on the number of treatments (no more than six).

………………..…………………………………………………………………………………………………………………………………….. Sexual Assault – ORC A minor can consent for the diagnosis and treatment of injuries related to sexual assault. Minor may also consent for discharge after treatment. Must give notice (by letter as required by statute) to the parent or legal guardian that an examination has taken place. Parent or legal guardian not liable for payment.

………………..…………………………………………………………………………………………………………………………………….. Minor Prosecuted as an Adult ORC A minor prosecuted as an adult is considered emancipated for the purpose of consenting to treatment while confined in a state correctional institution. –Be cautious of alerting the parents of scheduled medical treatment.

………………..…………………………………………………………………………………………………………………………………….. Pregnancy Tests Need consent from the parent or legal guardian? Mature minor doctrine? Nothing in the law prevents us from telling the parents the results of a minor’s pregnancy tests. Possible liability issues if we do not tell the parents— ectopic pregnancy. Normally get the teen to agree to disclose (with SW assistance).

………………..…………………………………………………………………………………………………………………………………….. Sticky Situation #1 The parents of your patient are divorced. Mom has custody. Dad has visitation rights. Dad calls requesting that a copy of the child’s discharge instructions be sent to his attorney, because Mom won’t give him any information about the child’s condition. What do you do?

………………..…………………………………………………………………………………………………………………………………….. A.Tell Dad that since he does not have custody, he is not entitled to receive the information. B.Send the information to Dad’s Attorney. C.Ask Dad to sign a release so that the records can be sent to him or his attorney.

………………..…………………………………………………………………………………………………………………………………….. Sticky Situation Continued Just because the Mom has custody, does not mean that the Dad loses all rights. If Dad has not lost his parental rights, Dad can get access to the medical record and medical information of the patient. Divorce Decrees/custody orders can allocate healthcare decision making authority. It is a good idea to ask for a copy of the divorce decree/custody order to see if this is one of those cases.

………………..…………………………………………………………………………………………………………………………………….. Sticky Situation #2 Dad has custody of the patient. Dad tells the clinic that his ex-wife is “crazy” and that the clinic is not to give any information to his ex-wife. Ex-Wife calls requesting information. What do you do?

………………..…………………………………………………………………………………………………………………………………….. A.Tell Mom that she is not entitled to information because Dad has custody and has told you not to release information to her. B.Tell Mom about Dad’s request and ask her if she can provide you with a copy of the divorce decree/custody order so that we can determine whether we can give her information. C.Ask Dad and Mom if she is the birth Mom, if so and her rights are not terminated she can have access to the records of her child’s medical information.

………………..…………………………………………………………………………………………………………………………………….. Sticky Situation #2 This is a case where we need to do some investigation to determine what the rights are of each of the parents. Need to get a copy of the order to determine next steps.

………………..…………………………………………………………………………………………………………………………………….. Sticky Situation #3 Aunt Jill brings 6 month old niece in for her appointment because Mom is at work. Can we see the child, or should we reschedule when Mom can be here?

………………..…………………………………………………………………………………………………………………………………….. Sticky Situation #3 Yes, we can see the child IF We can reach Mom or Dad on the phone and it is ok with Mom or Dad; OR Mom has delegated authority to give consent (i.e. Helping Hand, letter, etc.).

………………..…………………………………………………………………………………………………………………………………….. Sticky Situation #4 Maternal grandmother and biological father bring a 5 year old child for an appointment because the child has a sore throat. The maternal grandmother tells you that the child lives with her, that the child’s mother is deceased, and that the mom and dad were never married. What do you do?

………………..…………………………………………………………………………………………………………………………………….. Sticky Situation #5 A 5 year old child arrives for an appointment with her mother, who is not the biological mother. The parents were married in Washington. The child was born here in Ohio after the marriage. The child has not been adopted by the non- biological parent. What do you do?