NEW YORK - CONSENT ISSUES

January 1, 2008

New York 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, Pregnant or Parent Minors

(Public Health Law § 2504)

B. Sexual Assault Victim

A physician may render medical treatment to a minor without the consent or knowledge of the minor's parents where such patient is infected with or exposed to infection with a sexually transmissible disease.

(Public Health Law § 2504)

C. Drug Use or Dependency

A physician shall obtain parental consent in the treatment of a non-emancipated minor child for chemical dependence unless the physician believes such consent to be detrimental to the treatment of the minor who is voluntarily seeking such treatment, or if a parent or guardian withholds consent to such treatment and the physician believes such treatment to be in the child's best interests. Should the physician fail to obtain parental consent for these reasons, the physician is required to fully document why parental consent was not obtained.

(Mental Hygiene Law § 22.11)

D. Blood Donation

Consent by any person age 17 or older to donate blood is valid and binding.

(Public Health Law § 3123)

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

Emancipation is "the renunciation of legal duties by a parent and the surrender of parental rights to a child." (Gittleman v Gittlemen, 81 A.D.2d 632, 633 [2nd Dept, 1981].) Generally, emancipation can occur upon a child's marriage, by the express consent of the parent, 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 York, is evidence of emancipation. However, under New York law, there is no fixed age when emancipation occurs; it does not occur automatically on reaching age of majority.

(Zuckerman v Zuckerman, 154 A.D.2d 666, 667-8 [2nd Dept, 1989]; Public Health Law § 2504)

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?

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?

In New York, "[i]t is a firmly established principle of the common law of New York that every individual of adult years and sound mind has a right to determine what shall be done with his own body and to control the course of his [own] medical treatment." Rivers v Katz, 67 N.Y.2d 485, 492 (1986). Therefore, a physician is obliged to honor the right of a competent adult to refuse his or her own medical treatment, although such treatment may be life saving. Rivers, 67 N.Y.2d at 493

Where the patient is a child, a physician should not withhold necessary treatment if the patient's refuses to consent to treatment based on religious grounds. Although the law of New York State is unsettled with regard to when necessary medical treatment may be withheld absent evidence of the incompetent patient's express wishes, the weight of authority favors approach that serves the "best interests" of the patient.

In re AB, 768 N.Y.S.2d 256, 261 (Sup Ct., New York County 2003); Matter of Beth Israel Med. Center, 519 N.Y.S.2d 511 (Sup Ct., New York County 1987); see also Surrogate's Court Procedure Act § 1750-b

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