CALIFORNIA - CONSENT

March 18, 2008

California state laws and regulations that affect your medical practice

1. What is informed consent and when should it be obtained?

Informed consent is a legal standard whereby a patient gives his or her consent to receive treatment based upon information provided to the patient about the facts and implications of a proposed treatment. To give consent, the patient must be competent, meaning he or she must, in most cases, be 18 years of age, and be free from any condition or mental disease or defect which might impair the patient’s judgment.

Informed consent should be obtained from a patient prior to any exam, treatment or surgical procedure. To be complete, informed consent must relay to the patient:

• The nature of the procedure;
• Any potential risks or side effects of treatment, taking into account those risks important to the individual patient as well as a reasonable person;
• Any potential benefits of treatment; and
• Any alternative forms of treatment available.

2. Should a physician have a standard written form to fulfill all informed consent requirements?

While a standard informed consent form may be used, it is recommended that practitioners draft informed consents specific to the services rendered. In all circumstances, however, patients should be informed of their conditions, possible risks, treatment options, and alternatives. Any conversations addressing these issues should be clearly documented within the patient’s medical record.

3. What are the requirements for parental consent in the case of the treatment of minors?

In general, a minor may consent to medical treatment without parental consent if one of the following conditions is met:

(1) The minor is 15 years of age or older;

(2) The minor is living separate and apart from the minor’s parents or guardian, whether with or without the consent of the parent or guardian, and regardless of the duration of the separate residence; or

(3) The minor is managing the minor’s own financial affairs, regardless of the source of the minor’s income.

Cal. Fam. Code § 6922(a).

However, a physician who renders such care may advise the minor’s parent or guardian of the treatment given or needed if the patient has informed the physician of the parent or guardian’s whereabouts.

Cal. Fam. Code § 6922(c).

4. Mental Health Treatment

A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if both of the following requirements are met:

(a) The minor, in the opinion of the physician, is mature enough to participate intelligently in the outpatient services or the resident shelter services; and

(b) Without treatment the minor would present a danger of serious mental or physical harm to self or others or if the minor is the alleged victim or incest or child abuse.

Cal. Fam. Code § 6924.

A minor may never consent to receive convulsive therapy or psychosurgery without the consent of the minor’s parent or guardian.

Cal. Fam. Code § 6924(f).

Where a professional is offering the minor residential shelter services, whether as an individual or as a representative for another entity, the professional must make “best efforts” to notify the patient or guardian of the minor’s receipt of services.

Further, the practitioner should involve the minor’s parent or guardian in the minor’s treatment unless their involvement is inappropriate. Where the practitioner deems the parent or guardian’s involvement to be inappropriate, the professional’s opinion must be carefully documented in the medical record. Similarly, any attempts to contact the minor’s parent or guardian and the outcome of these attempts must also be recorded.

Cal. Fam. Code § 6924(d).

5. Prevention and Treatment of Pregnancy

A minor may consent to medical care related to the prevention or treatment of pregnancy. However, an unemancipated minor may not consent to sterilization or to an abortion without the consent of a parent or guardian or court authorization except in a medical emergency.

Cal. Fam. Code § 6925.

6. Treatment of Communicable and Infectious Diseases

A minor who is 12 years of age or older and who may have come into contact with an infectious, contagious, or communicable disease may consent to medical care related to the diagnosis and treatment of the disease, if the disease or condition is one that is required to be reported to the local health officer, or is a related sexually transmitted disease.

Cal. Fam. Code § 6926.

7. Rape and Sexual Assault

A minor who is 12 years of age or older and who may have been raped may consent to medical care related to the treatment and diagnosis of the condition and the collection of medical evidence with regard to the alleged rape.

Cal. Fam. Code § 6927.

Similarly, a minor who may have been sexually assaulted may consent to medical care related to the diagnosis and treatment of the condition and the collection of medical evidence with regard to the alleged sexual assault.

Cal. Fam. Code § 6928.

8. Drug or Alcohol Abuse

A minor who is 12 years of age or older may consent to medical care and counseling related to the diagnosis and treatment of a drug or alcohol-related problem. However, a physician must disclose the minor’s medical information to a requesting parent or guardian in cases where the parent or guardian has sought treatment for the minor’s drug or alcohol problem, even if the minor child does not consent to disclosure.

Cal. Fam. Code § 6929.

9. For the purposes of obtaining informed consent, when is a minor considered emancipated?

Under the Emancipation of Minors law, a minor can become emancipated by: getting married, joining the military, or judicial declaration. To qualify for emancipation, the minor must be at least 14 years of age.

Cal. Fam. Code § 7000 et seq.

Once emancipated, a minor may consent to his or her own medical, dental orpsychiatric care without parental consent.

Copyright © Kern Augustine Conroy and Schoppmann, P.C. Used with permission.

Updated 2008