NEW JERSEY - CONSENT ISSUES

January 1, 2008

New Jersey 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. Married or Pregnant Minors

(N.J.S.A. 9:17A-1)

B. Venereal Disease or Sexual Assault Victim

Consent by a minor who is or claims to be afflicted with venereal disease, or who in the judgment of a treating physician appears to have been sexually assaulted, shall be valid and binding for the provision of surgical or medical care or services by a hospital, public clinic, or for medical or surgical care or services by a physician.

If the minor appears to have been sexually assaulted, the minor's parent or guardian must be notified immediately, unless the attending physician believes it is in the best interest of the patient not to do so. However, inability to notify the parents or guardian should not preclude the provision of necessary emergency care.

(N.J.S.A. 9:17A-4)

C. Drug Use or Dependency

Consent by a minor who believes that he or she is suffering from the use of drugs, or is a drug dependent person, to treatment for that condition, under the supervision of a physician, is valid and binding. Treatment for drug use or abuse shall be considered confidential information between physician and patient and neither the physician nor the minor can be required to report such treatment when it is the result of voluntary consent.

(N.J.S.A. 9:17A-4)

D. Blood Donation

Consent by any person age 18 or older to donate blood is valid and binding.

(N.J.S.A 9:17A-6)

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 New Jersey, is evidence of emancipation. However, under New Jersey law, there is no fixed age when emancipation occurs; it does not occur automatically on reaching age of majority.

(Newburg v. Arrigo, 88 N.J. 529, (1982); N.J.S.A. 9:17B-3)

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 safe-guard 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?

A. 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.

B. Before a physician operates on a patient for a tumor of the breast, the physician must obtain written consent from the patient or the patient's authorized representative on a form which allows the patient:

(i) to give consent only for a biopsy;

(ii) to give consent to perform any necessary operation or procedure, including breast removal, if it is determined that the patient has a malignant tumor in his or her breast or other breast abnormality; or

(iii) to give consent for both a biopsy and an additional operation or procedure, if necessary.

(N.J.S.A. 45:9-22.)

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

New Jersey has adopted the United States Supreme Court view that "an adult is free to become a martyr by opting for death rather than life-saving medical treatment." (Prince v. Massachusetts, 321 U.S. 158 (1944).) However, the court has also recognized situations where significant state interests may supersede the individual's right to free choice. In case of patients who are minors, the state's interest in the welfare of the child may also be compelling.

In the case of an adult patient, objections from the patient or the patient's family are usually weighed by examining such factors as the probable outcome of the treatment to restore the patient to normal life or to prolong a patient's life at a lower level of subsistence; the age of the patient; and the patient's level of competence or understanding.

In the case of minor patients, the courts have held that "a parent's right to control his or her child is limited even when the parent bases the claim on religion or conscience." (Prince v. Massachusetts, 321 U.S. 158 (1944).) New Jersey courts have adhered to this theory and have used the following test to determine when to override parental consent: (1) when the child faces imminent death, (Muhlenberg Hospital v. Patterson, 128 N.J. Super. 498 (1974)); or (2) when the child is threatened with serious and irreparable harm (State v. Perricone, 37 N.J. 463 (1964)).

Obligations of a physicians are then based upon whether the patient is an adult or minor, whether the treatment is likely to require a blood transfusion and the necessity of a court order. Upon informed consent, the physician should discuss all possibilities with the patient or adult guardian(s) of the patient including the risks involved, the likelihood of necessity of a blood transfusion and whether the physician can perform the treatment within the limits defined by the patient or adult guardian of the patient.

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