MASSACHUSETTS - CONSENT ISSUES

January 1, 2008

Massachusetts state laws and regulations that affect your medical practice

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

In general, the treatment of minor patients requires parental consent. (Persons eighteen (18) and older are considered adults, for the purposes of these regulations.) However, there are several exceptions to the requirement of parental consent, as follows:

A. Family Planning

M.G.L.A. 111 § 24E

B. Emergency Treatment

No physician, dentist or hospital shall be held liable for damages for failure to obtain consent of a parent or legal guardian for emergency treatment including blood transfusions, when delay in treatment will endanger the life, limb or mental well-being of the patient.

M.G.L.A. 112 § 12F

C. Drug Use or Dependency

A minor twelve years of age or older who is found to be drug dependent by two or more physicians may give his consent to the furnishing of hospital and medical care related to the diagnosis or treatment of such drug dependency. The consent of the parent of guardian of such minor shall not be necessary. Records shall be kept of such care. These provisions do not apply to methadone maintenance therapy.

M.G.L.A. 112 § 12E

D. Miscellaneous Exceptions

Any minor may give consent to his medical or dental care at the time such care is sought if:

(1) He/she is married, widowed or divorced;

(2) He/she is the parent of a child, in which case he may also give consent to medical or dental care of the child;

(3) He/she is a member of any of the armed forces;

(4) She is pregnant or believes herself to be pregnant;

(5) He/she is living separate and apart from his parent or legal guardian, and is managing his own financial affairs; or

(6) He/she reasonably believes himself/herself to be suffering from or to have in contact with any disease defined as dangerous to the public health.

M.G.L.A. 112 § 12F

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

Emancipation is an act by which a parent relinquishes the right to custody and is relieved of the duty to support the child. Generally, emancipation can occur upon a child's marriage, induction into the military service, by court order based on the child's best interests, or by the attainment of the appropriate age. Attaining the age of majority, which is 18 years of age in Massachusetts, is evidence of emancipation. However, under Massachusetts law, there is no fixed age when emancipation occurs; it does not occur automatically on reaching age of majority.

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

Generally, informed consent is given by a patient to a physician who has informed the patient of the following:

A. The illness;

B. The treatment, including the risks and any side-effects;

C. Treatment alternatives; and

D. Likelihood of success.

Informed consent is a means to ensure that a patient is educated and informed about the decisions the patient is making regarding his or her treatment. Thus, the consent given should reflect the understanding the patient has concerning his or her own well-being. Further, informed consent is also a means to safeguard against physicians who may otherwise be accused of substituting their judgment for that of their patient, perhaps in the interests of time and efficiency.

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

No. Generally, it would not be advisable to have a standard written form to address blanket issues. Written informed consent, specific to certain patients and their circumstances, is recommended. It is always important that patients be informed of their situation, their condition, their options and their alternatives as that is the purpose of informed consent. Any conversations which address these issues should also be documented within the patient's medical records.

5. What obligations does a physician have if a patient refuses to consent to treatment based on religious grounds?

With respect to minor children, the right to the free exercise of religion, including the interests of parents in the religious upbringing of their children is a fundamental right protected by the Constitution. However, these fundamental principles do not warrant the view that parents have an absolute right to refuse medical treatment for their children on religious grounds, especially when a child's life is at issue. Massachusetts courts look at the child's age, the risk to the child's health and life if the requested treatment is not administered, the probability that the child's illness would be in remission if given treatment, the substantial chance for a cure and a normal life for the child and the minimal risks to the child's health which would result from the treatment. The state's interest in saving the child's life will usually take precedence over his or her parents' sincerely held religious beliefs.

On the other hand, the state will generally not interfere with a competent adult's informed decision to forego lifesaving procedures for himself or herself on religious grounds.

6. What are the restrictions on termination of pregnancy in Massachusetts?

No physician may perform an abortion upon a pregnant woman without first obtaining her written informed consent. A pregnant woman seeking an abortion shall sign a consent form at least twenty-four hours in advance of the time for which the abortion is scheduled, except in an emergency requiring immediate action. If a pregnant woman is less than eighteen years of age and has not married, a physician shall not perform an abortion upon her unless he first obtains both the consent of the pregnant woman and that of her parents.

M.G.L.A. 112 § 12S

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