Tuesday, October 01, 1996
by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the October 1996 issue of the Journal
Question: Would you please comment on and clarify the extent of treatment legally allowed when a grandparent, aunt, or friend brings a minor child to the dentist for care? For example, can a non-invasive examination be performed? A non-invasive radiograph? If parental consent is necessary, is telephone communication with the legal parent or guardian sufficient? Does the parent or legal guardian have to be physically present in the office? Is a note sent by the legal parent or guardian granting the caregiver permission to examine and/or treat sufficient?
Answer: This answer is not clearly stated in any statute, rule or regulation; it is imbedded in the evolutionary process of judicial decisions which is called "common law." The common law doctrine of informed consent as it applies to children was considered by the Michigan Supreme Court earlier this century. In a 1935 holding, the Supreme Court mandated that, except in very extreme cases, a surgeon has no legal right to operate upon a child without the consent of his parents or legal guardian. This doctrine of informed parental consent is generally applicable to all care rendered by health care professionals, and if a health care professional treats or operates on a minor patient without parental consent, he has committed an assault and battery and may be required to respond in damages. Under this rule, even non-invasive procedures may constitute "treatment or operations" and, therefore, the procurement of a parent's permission prior to administering these procedures would be necessary. The rule is, however, subject to a variety of exceptions.
Invasive procedures most clearly constitute "treatment or operations," yet Michigan courts rely heavily upon the circumstances in each case to determine whether an operation upon a minor requires parental consent. Thus, in a 1906 Michigan Supreme Court decision the court found that parental consent was not required when a 17-year old boy freely consented to the removal of a tumor while accompanied to the doctor's office by his aunt and sister. In both that decision and a 1912 decision, the Supreme Court additionally found that, in the absence of any evidence that the minor's parents would not have consented to the operation if consulted, a physician cannot be liable for failing to procure parental consent.
By contrast, the court in the 1935 decision held that a tonsillectomy performed on a 9-year-old boy was an actionable assault and battery committed by the doctor.The boy was not accompanied by an adult relative and his parents had repeatedly indicated that they did not want their child's tonsils removed. Under these decisions, the child's age, whether he or she is accompanied by an adult relative, and whether there is any evidence that the child's parents would refuse to give consent were they apprised of the treatment, all play a significant role in the court's determination of the necessity of parental consent.
Parental consent is unnecessary when an emergency arises calling for immediate action to preserve the life or the health of the child, and it is impracticable to obtain the consent of the child's parents. Thus, the Supreme Court found that an emergency operation on a 15-year old boy without his parent's consent was justified. Other exceptions negating the parental consent requirement include cases in which the child has been emancipated or when, during the course of an operation to which the child's parents consented, conditions arise which would endanger the life of the child if not corrected. Added to the question of which treatments raise the duty to procure parental consent, these exceptions to the rule that parental consent is required create an uncertain landscape for treating dentists.
Prudent dental practice can avoid all of the above contingencies by procuring parental consent before any invasive or non-invasive treatment of a minor. Such consent may be given either expressly or impliedly. Express consent may be given either in writing, through submission of a signed note, or by oral agreement, through face-to-face communication or a telephone call, whereby the parent grants the dentist permission to perform the recommended treatment. Implied consent may be manifested by the parent's conduct, as where the parent seeks treatment for his or her child or otherwise manifests a willingness to submit the child to a particular course of treatment.
The safest practice is to obtain written consent of the parent or guardian in the treatment of the child. Consent alone, however, is not sufficient. It must be "informed" consent. Under Michigan case law, informed consent requires the health care professional to reasonably inform the patient of the risks or hazards which may follow from the treatment or services contemplated. The information must be given on a timely basis and in accordance with the accepted standard of practice among members of the dental profession with similar training and experience. In addition to the consent for treatment, dentists should make it a practice to chart in the dental record all conversations with parents or guardians of the minor patient regarding the consequences and risks of the dental procedure.