Minors The Health Department - UNC School of Government · PDF file ·...
Transcript of Minors The Health Department - UNC School of Government · PDF file ·...
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Minors & The Health Department
Consent to Treatment & Mandatory Reporting
Jill Moore and Sara DePasqualeUniversity of North Carolina School of Government
April 2016
CONSENT TO MINORS’ TREATMENT: GENERAL RULES
General rule: “Parental” (adult) consent
• Parent
– Biological or adoptive
– Married or unmarried
• Parent substitute
– Guardian
– Person acting in loco parentis
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In loco parentis
Who is in loco parentis?
• A person “who has assumed the status and obligations of a parent without being awarded legal custody of a juvenile by a court.” ‐‐In re A.P., 165 N.C. App. 841 (2004)
• Evidence of in loco parentis: support and maintenance, attending to child’s basic needs, supervision, education, health care, etc.
Who isn’t in loco parentis?
• Babysitter/child care provider (even if regularly serving in that role, even if a relative)
• Teacher
• Coach or similar supervisor of children’s activities
• DSS or foster parent
Emancipated minors do not require parental consent
• 14‐15: baby + judge’s permission
• 16‐17: parents’ permission
Marriage
• 16 or 17
• Petition to court must give reasons for seeking emancipation and describe minor’s plan for providing for his or her own needs and living expenses
Court order
Parent may authorize another adult to consent on parent’s behalf
Two situations:
• Custodial parent authorizes another adult to consent to a minor’s treatment during a period of time the parent is unavailable
• Special rule for immunizations
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Parent authorizes another adult when parent unavailable
• Statutory form available
but not required (G.S. 32A‐34)
• Limitation: may not use to authorize another adult to consent to withholding or withdrawal of life‐sustaining procedures
Parent authorizes another adult to obtain immunizations only
• Physician or local health department may immunize a minor who is presented for immunization by an adult who signs a statement that s/he has been authorized by the parent to obtain the immunization.
• Adult presenting child must sign statement but no requirement for writing from parent.
• Child in DSS custody: See Sara DePasquale’s bulletin
Emergencies & other urgent circumstances
• A health care provider may treat a minor without parental consent if:– Minor’s identity is unknown– Effort to obtain parental consent would endanger minor’s life or health
– Parent cannot be located or contacted with reasonable diligence during time treatment is needed
– Parent has refused treatment and delay caused by attempt to obtain a court order would endanger the child
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Minors’ consent
What is required to be able to give consent to treatment?
Legal capacity
• Legal recognition of a class of individuals’ authority to give informed consent to treatment
• Example: Everyone over age 18
• Not individualized; if you’re in the class you have legal capacity to consent
Decisional capacity
• Particular individual is capable of making and communicating his or her own health care decisions
• Individualized determination: is thisperson capable of making and communicating this decision?
What is required for a minor to give consent for own treatment?
Legal capacity
• Legal recognition that the minor may consent
• Emancipated minors
• Minor’s consent laws
Decisional capacity
• Individualized determination: is thisminor capable of making and communicating this decision?
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Minor’s consent law (GS 90‐21.5)
• Gives minors legal capacity to consent to services for the prevention, diagnosis, or treatment of:– Sexually transmitted infections or other reportable communicable diseases
– Pregnancy (but minors may not receive abortions or medical sterilization on their own consent)
– Emotional disturbance (but minors may not consent to admission to a 24‐hour facility, except in emergencies)
– Abuse of controlled substances or alcohol (with the same restriction on admission to 24‐hour facilities)
Confidentiality of minor’s consent information: G.S. 90‐21.4(b)
• Need the minor to authorize disclosure of information about treatment under minor’s consent rule unless:
– Essential to minor’s life or health to notify parents, then may disclose to parents
– Disclosure required by other laws (e.g., to report child abuse or neglect, etc.)
CONSENT TO TREATMENT FOR MINORS IN DSS CUSTODY
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X
• Report and Assessment
• No Action, Voluntary Services Plan, Temporary Custody
?• Petition
• Nonsecure Custody (?)
?
• Adjudication and Disposition
• Review Permanency Planning
• TPR (?)
Children Involved with DSSDifferent StagesConsent by DSS
DSS Consent, G.S. 7B‐505.1 and ‐903.1
X
Granted and child in department custody
Child in department custody
G.S. 7B‐505.1(a)(1)
• Director may arrange for, provide, consent to…– Routine Medical & Dental Care or Treatment
• G.S. 90.21.2 Treatment defined “any medical procedure or treatment,” including diagnostic procedures employed or ordered by a NC licensed physician
– What’s Missing• Mental Health
• Definition of routine
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G.S. 7B‐505.1(a)(2)
• Emergency Medical, Surgical, Psychiatric, Psychological, or Mental Health Care or Treatment
• What’s Missing?
– Dental
– Definition of Emergency
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G.S. 7B‐505.1(a)(3)
• Testing & Evaluation In Exigent Circumstances
• What’s Missing?
– Treatment
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G.S. 7B‐505.1(b): CME
• The court may authorize the director to consent to a Child Medical Evaluation
– upon written findings that demonstrate the director’s compelling interest in having the juvenile evaluated prior to the first 7‐day hearing
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G.S. 7B‐505.1(c)
• For all care or treatment not covered by subsection (a) or (b)
• Nonexhaustive List
– Psychotropic Rx
– Clinical Trials
– Immunization when known religious objection
– CME not covered by subsection (b)
– Surgical, medical, dental, psychiatric, psychological, or mental health care or treatment that requires informed consent
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7B‐505.1(c): NonRoutine/NonEmergency
• Director shall obtain consent from the juvenile’s parent, guardian, or custodian
– Except the court may authorize the director to provide consent after a hearing at which the court finds by clear and convincing evidence that the care, treatment, or evaluation requested is in the juvenile’s best interest
What Does a Medical Provider Want Before Providing Treatment?
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• Court Order or
• Parent’s, Guardian’s, Custodian’s Consent
– May include written delegation to DSS
– DSS Form 1812
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Access to Records, G.S. 7B‐505.1(d)
Director shall make reasonable efforts
• To promptly notify… treatment provided
• Give frequent status reports
• Upon request, make eval results available
– Exception for CME (G.S. 7B‐700)
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Access to Records, G.S. 7B‐505.1(f)
Medical Provider
• Disclose to county and parent
• Unless
– court orders otherwise or
– prohibited by federal law
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REPORTS TO DSS
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Universal Reporting, G.S. 7B‐301(a)
• Any person or institution
• cause to suspect
• any juvenile is abused, neglected, or dependent as defined by G.S. 7B‐101,
• shall report
Abused Juvenile, 7B‐101(1)
A child whose parent, guardian, custodian, or caretaker:
– inflicts, allows, or creates substantial risk of serious, non-accidental physical injury
– uses cruel or grossly inappropriate procedure or device to modify behavior
– commits or allows various sexual offenses against, with, or by the child
– creates or allows serious emotional damage
– encourages, approves, or directs certain delinquent acts of moral turpitude by the juvenile
– commits, allows to be committed human trafficking, involuntary servitude, sexual servitude
• does not receive proper care, supervision or discipline from parent, guardian, custodian or caretaker
• is not provided necessary medical / remedial care;
• has been abandoned;
• lives in injurious environment; or
• is placed for care / adoption in violation of law.
It is relevant if child lives where another child has
– died as a result of suspected abuse / neglect or
– been subjected to abuse / neglect by an adult whoregularly lives in the home.
Neglected Juvenile, 7B‐101(15)
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Needs assistance or placement because
1. child has no parent, guardian, or custodian responsible for his / her care, or
2. parent
a. is not able to provide for child’s care and supervision and
b. lacks an appropriate alternative child care arrangement.
Dependent Juvenile, 7B‐101(9)
The Who!
School of Government, 2015
• parent• guardian• custodian• caretaker
Department Response, 7B‐302
• Screen Out
– 2 person review
• Screen In
• Assessment
– Abandon: immediate
– Abuse: 24 hours
– Neglect/Dependency: 72 hours
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Notice to Reporter, 7B‐302(f) & (g)
• 1st Notice:
– Within 5 working days of receipt of report
• 2nd Notice:
– Within 5 working days of completion of assessment
– Prosecutor Review Requested within 5 working days of receipt
• May be waived
REPORTS TO LAW ENFORCEMENT
Certain injuries or illnesses must be reported to law enforcement
All ages, including minors:
Gunshot wounds & other firearm injuries
Illness from poisoning
Wounds/injuries from knives/sharp instruments, if caused by a criminal act
Grave bodily harm or grave illness, if caused by a criminal act of violence
Children under 18 only:
Recurrent illness caused by nonaccidental trauma
Serious physical injury caused by nonaccidentaltrauma
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Making a report• Who?
• Treating physician or administrator of health care facility where treated
• What? – Person of any age with one of the specified illnesses or injuries: name, age, sex, race, residence or present location, character and extent of injuries
• Children under age 18 with serious physical injury or recurrent illness caused by nonaccidental trauma: Child’s identity and information about illness/injury
• Disclosure of additional information is not authorized by reporting statute. May disclose additional info only if:
• Client/personal representative gives permission• LE has warrant or court order for information• Other law authorizes disclosure to LE
• When? – As soon as practicable before, during, or after treatment
• How?– Not specified in law
Grave illness or bodily harm
Criminal act of
violence
Report (any age)
Reports to LE always require injury or illness
Serious injury or recurrent illness
Non‐accidental trauma
Report if child <18
DISCUSSION SCENARIOS
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Persistent lice
Young adolescent with STI
• DSS
– Abuse or neglect
– Parent, guardian, custodian, or caretaker
• Law enforcement
– Grave illness caused by criminal act of violence, or
– Recurrent illness caused by nonaccidental trauma
Teen Sleepover
• DSS– Abuse: Parent, Guardian,
Custodian, or Caretaker– G.S. 7B‐101(3): responsibility for
health and welfare of a child– Court Opinion: totality of
circumstances
• Law enforcement– Does not have to be parent,
guardian, custodian or caretaker– G.S. 90‐21.20: Injury or illness– Parent may report to LE regardless
of injury or illness
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Underage with older sexual partner
• DSS
– Abuse or neglect
– Parent, guardian, custodian, or caretaker
• Law enforcement
– Grave illness caused by criminal act of violence, or
– Recurrent illness caused by nonaccidental trauma
Contact information
Jill Moore
919.966.4442
Sara DePasquale
919.966.4289