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Special Circumstances

When a child's parents are divorced or legally separated, the physician can no longer assume that both parents have the right to consent to care for the child. The right to consent depends on the state law and the court's orders in the specific case. The parent with legal custody usually has the authority to consent to care for the child; however, the physician seldom knows which parent has legal custody. This is especially problematic in states that allow joint custody.

The child's legal status should be recorded in the medical record. The physician should tell the parents of minor patients to notify him or her of divorces and marriages, as well as address changes. If the physician knows that a couple is separating, he or she should ask who has the right to consent to the child's care. In states that do not allow the noncustodial parent to consent to care, the physician should discuss proxy consent with the custodial parent. A physician should not deny a child needed medical care because of uncertainty about the child's legal status. Conversely, the physician should not knowingly continue to treat a child with a questionable status without attempting to determine who has the legal right to consent to the care.

Many states give certain adult relatives of a child the right to consent to medical care for the child. The parents should be encouraged to use a proxy consent form to clarify their wishes and to broaden the emergency care authority granted in state statutes.

If the child stays or travels with friends and neighbors, the parent or guardian should execute a proxy consent allowing these persons to consent to care for the child. If the parents are not comfortable with giving this proxy, they should reconsider whether they should leave the child with this person.

The extent of proxy consent for institutions depends on the proximity and availability of the parents and the medical resources of the school. If the institution has a physician available or if the parent will not be readily available, the proxy consent should be more encompassing. The maximum delegation involves institutions that stand in loco parentis ("in the place of the parent"). These institutions should ask the parent to delegate full rights to consent to the institution. The neighborhood public school needs little right to consent to care for a child. The boarding school that caters to diplomats' families needs full rights to consent.

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