Rights of Children

During the last century, there has been a revolutionary change in the legal position of children. Originally considered mere property, a child could be killed by its father without the father risking punishment. Courts now recognized that children have legal rights independent of their parent's wishes. One of the most important of these rights is the right to needed medical care. In most states, it is considered a violation of the child welfare laws to deny a child needed medical care. Courts will often appoint guardians to consent to medical care for children when their parents are unwilling to consent. Each state has its own policy about the right of a parent or guardian to refuse care for a minor. Some states require a threat to life or limb before ordering the rendering of care, while others will allow almost any needed care.

Unlike the absolute right of an adult to refuse care, thereby absolving the health care providers of liability for the consequences, health care providers have a duty to assist the child in obtaining care. This duty toward the child depends upon the state's child abuse reporting laws. Many states have a law that mandates the reporting of possible child abuse. The state usually makes the person making the report immune from liability for the report. In return for this immunity, the state makes the person subject to a penalty for not making such a report.

In addition to other actions taken to secure care for the minor, the local or state child welfare department should be notified. In many cases, the child welfare department will handles the required legal work, thereby reducing the burden on the hospital. If the child welfare department does not take over the proceeding, or in states without this type of legislation, the hospital should proceed in the same manner as it would to obtain permission to treat an adult who has refused care. A hearing should be arranged as soon as possible, and precautions should be taken to limit the care rendered before a court order is obtained. Lifesaving care may be rendered without fear of liability, but nonessential care may be legally hazardous. Courts are willing to assess dames for unauthorized treatment of a minor in a nonemergency situation. If the court refuses to authorize care, the hospital must respect the parent's wishes or face liability for battery.

Hospitals, clinics, and physician group practices should have written protocols to deal with patients who refuse care. As discussed above, the health care providers should be prepared to get a court order authorizing care if they choose to render care against the patient's (or parents') will. The court may, or may not, authorize care; but once an order is obtained it must be obeyed.