Navigating Parental Disputes over the Medical Care of Minors

Executive Summary 

With married parents, both parents independently have the authority to consent to medical care and access medical records on behalf of the minor patient. In the case of a divorce, a practice must obtain the consent of both parents before proceeding with a treatment plan for a minor patient. A custody arrangement may have revoked one parent’s ability to consent to medical treatments or access medical records and other information. 

Recommended Actions  

• Determine whether the patient’s parents are legally divorced and, if so, obtain a copy of their divorce or custody agreement. 
• Avoid deciphering complex legal documents by requesting that parents highlight relevant sections of the divorce and custody documentation. 
• When parents are married, consider obtaining consent from both parents for a child’s major medical decisions. 

Practices that treat minor patients (such as pediatricians, family practitioners and pediatric specialists) almost always need the consent of a parent or legal guardian to provide medical care to those patients. In most circumstances, this will rarely create a problem for the practice. However, when parents are divorced or in marital discord, a practice may find that obtaining consent can be challenging and confusing. Additionally, when parents disagree about the minor’s medical care, who has access to medical records and may make decisions on behalf of the minor patient can become points of hostility. 

Based on MagMutual’s experience handling these matters, we advise that practices take the following steps to minimize risk with respect to obtaining appropriate consent before providing medical care. 

Step 1: Determine the relationship between the parents of the minor patient. 

When starting to provide medical care to a minor patient, the practice should determine the relationship between the parents. Absent a birth certificate or other legal documentation to the contrary, the practice may assume the individuals listed on the practice’s intake form are the only parties that may consent on behalf of the minor patient. The practice may assume that the individuals listed on the intake form are married, unless specifically stated otherwise. Unless legally divorced, separated parents are still considered married for purposes of determining authority to consent and right to access the patient’s medical records. 

The practice may assume that with married parents, the parent present is acting in accordance with the wishes of the other parent. However, if divorced parents are in a dispute over medical care for a minor patient or access to the minor patient’s medical records, the practice should have both parties provide legal documentation — divorce agreement or custody arrangement — that details the parents’ current relationship and rights over medical decision-making for their minor child. 

Step 2: Determine who has the authority to consent to the medical decisions on behalf of the minor patient. 

With married parents, the default is that both parents independently have the authority to consent to medical care on behalf of the minor patient. Therefore, a married parent may individually and independently consent to medical care for the minor patient. The consent of the other parent is not needed, even in major medical decisions. However, the practice should attempt to obtain the consent from both parents for logistical purposes in major medical decisions such as surgeries or behavioral health treatment. 

With divorced individuals, the default is joint legal custody. In joint legal custody situations, both parents retain the authority to consent to medical decisions on behalf of the minor patients. However, unlike married parents, the consent of both parents is necessary before a practice may proceed with a treatment plan for a minor patient. If the parental authority has been restricted or revoked by legal documents, such as a sole legal custody arrangement, the parents should provide the documentation to the practice. Arrangements such as sole legal custody require only the consent of the divorced parent with sole legal custody before a proposed treatment plan may be initiated. 

Step 3: Determine who may access medical records and other administrative information of the minor patient. 

Access to medical records and other administrative information related to the minor patient typically correlates to which parent has the authority to consent to medical care on behalf of the minor patient. 

For example, with married couples, both parents may individually access the medical records of the minor patient, schedule appointments and create an account in the practice’s patient portal interface. Similarly, in divorce situations where joint legal custody is the arrangement, both parents will normally retain the ability to access the minor patient’s medical records and other administrative information. 

However, in situations of divorce or other marital discord, a practice should be cognizant that legal documentation may have altered this parental right. A custody arrangement or divorce agreement may have left a parent with the ability to consent to medical treatments, but may have revoked the same parent’s right to access medical records and other information. 

As a best practice, a practice should always review any legal documentation provided by the parents before allowing access to a minor patient’s medical records or other administrative information. The practice should always request that the parents highlight the relevant sections of the legal documentation, as the practice should not have to decipher and analyze these complex custody documents. 

As a best course of action, practices should have a policy in place to handle situations of divorce and marital discord. The policy should address who the practice will consider to have the authority to make medical decisions on behalf of the minor patient. The policy should put forth the default assumptions the practice will make absent legal documentation showing otherwise. The policy should reinforce that the practice utilizes its discretion when classifying care as a major or minor medical decision. Additionally, the policy should state the practice will not become involved in marital disputes between the parties and if negotiating care with the parents becomes too burdensome, the practice has the option to discharge the patient from the practice with proper notice. 

Based on MagMutual’s experience in these situations, we have developed these [marketing to insert] divorce and marital discord guidelines which a practice can utilize to reduce risk with disruptive parents. This draft guideline incorporates the most common risk management issues that MagMutual has encountered in this area. Depending on the frequency of issues, the practice can either hand out the guidelines to parents as appropriate and/or adjust the guidelines to become an agreement that signed by the parents. 

Lessons Learned  

• Consider asking both divorced parents to attend appointments regarding major decisions about their child’s care. 
• Refer to the parent’s divorce or custody arrangement when requesting parental consent for treatment or providing a minor patient’s medical records. 

• Provide parents with marital discord guidelines to reduce risk of disruption and overlooked consent for minor patient treatment. 

Potential Damages 

Providers who do not obtain appropriate parental consent run the risk of being charged with negligence. Although the frequency of legal action for inaccurate parental consent in cases of divorce is relatively low, damages and defensive costs can quickly add up.