Thursday, January 01, 2004
by Daniel J. Schulte, J.D.
MDA Legal Counsel
Published in the January 2004 issue of the Journal
Dear Dan Schulte: I am treating a young boy whose parents are divorced. The parents share custody and financial responsibility. Recently, the mother has consented to the treatment that I plan to provide to the boy. The father’s attorney, however, has sent a letter to me instructing me not to proceed with the planned treatment. Am I required to obtain consent from both of the parents?
Answer: The requirement that a dentist obtain informed consent from a patient prior to performing a procedure comes from Michigan case law. There is no Michigan statute setting forth detailed requirements for obtaining informed consent from a patient for the performance of dental care.
With respect to minor patients, Michigan law requires that informed consent be obtained from the minor patient’s parent, legal guardian or some other person appointed by court order. Assuming that the parents in this scenario share custody of this minor patient, obtaining the informed consent of either the mother or the father would be sufficient for the dentist to proceed with the planned treatment. This would be true so long as there is not a provision in the judgment of divorce or another court order stating that only the mother or the father (instead of either the mother or the father) may give consent for the dental or other medical care of the minor patient.
A related question that often comes up in these scenarios is whether the parent who has refused to give consent for the dental care of the minor patient may be denied access to the dental records concerning the treatment. A Michigan statute (MCL § 722.30) specifically provides that, barring a court order to the contrary, a parent shall not be denied access to his or her child’s medical or dental records. The rule applies even if the parent does not have custody of the child.