Minor Consent: Challenges for Pediatric Dentistry

Kim Hathaway, MSN, CPHRM, Patient Safety Healthcare Quality and Risk Consultant, Department of Patient Safety and Risk Management

Identifying legal guardianship and the rights of parents can reduce risk prior to treating a minor.

Treatment of a child with parents involved in an acrimonious divorce can present dental professionals with unique challenges. When only one parent accompanies a minor patient for dental care, the practice may not anticipate custody issues. Parental disputes may be revealed only after care has been rendered. For example, the other parent might demand a copy of the dental record, object to the care rendered, or refuse payment because services were provided without prior knowledge or consent.

Disputes can also arise when minor patients arrive at the practice with someone other than a parent. A child may attend a dental appointment alone or with a surrogate caregiver, such as a stepparent, relative, family friend, or older sibling. In any of these circumstances, a practice should always identify the person who can provide consent by proxy.

Scenario 1

A father presented with his five-year-old child and requested an evaluation to treat dental caries. The child had previously been evaluated by a dentist who recommended a treatment plan to include restoring teeth under IV sedation. The new dentist evaluated the child and advised that the restoration could be safely accomplished with oral sedation in two stages. Stage one was successfully completed, and an appointment was made to complete stage two. In the interim, the dentist received a deposition request from an attorney who represented the child’s mother. The conflict between the parents resulted in a decision that treatment for the child’s remaining dental restorations and method of sedation would be determined by a judge. Because of the hostility and aggression from the mother and her attorney, the dentist was reluctant to provide future care for the child.

Scenario 2

A 10-year-old child, who had been under the care of an orthodontist for several years, was in the middle of the course of treatment with full orthodontic appliances. After several missed appointments and payments, the office manager called the patient’s home to discuss the situation with a parent. The office manager was informed that the parents were in the process of a divorce and that the father was responsible for the bill. When the office manager called the father, he refused to pay for the orthodontic care. Subsequently, the practice faced two risks for continuing care: (1) based on the history of missed appointments, the patient may not return, and (2) based on the history of nonpayment and the parents’ divorce, the practice may not be paid if the patient returned and care was continued. The orthodontist could continue to provide care knowing these risks or remove the orthodontic appliances before discontinuing care.

Scenario 3

An 11-year-old patient and her mother presented to the orthodontist with a complaint that the child’s teeth were crowded and crooked. The treatment plan was discussed with the mother, who signed the proposed plan during the visit. The orthodontist initiated the first phase of the treatment and managed the orthodontic appliances for several months. A surrogate caregiver escorted the child to each office visit. As the development and eruption of the canine teeth progressed, it became necessary to extract the patient’s temporary canine teeth. The orthodontist discussed the extraction plan with the surrogate, and the practice called the patient’s mother, who provided permission for the extractions over the phone. Later, when the child’s permanent teeth had not yet appeared, her parents consulted with the orthodontist and expressed concern that the absence of canine teeth would negatively affect her appearance. The orthodontist explained that it might be a year before the teeth fully erupted. Upset by this response, the parents requested a copy of the dental record to present to their attorney. While preparing the record, the orthodontist realized that the surrogate caregiver was the only person who had signed treatment consents. Further review of the dental record revealed that it was also missing any documentation about the patient’s mother providing permission over the phone for the extractions. A parental signature was limited to the initial treatment and financial plan.

These scenarios illustrate some of the situations that can arise when providing treatment to minor patients. Dental professionals should be familiar with the consent laws in their state, and they should understand the rights of parents and the complexities related to the legal consent of minor patients.

Risk Management Strategies

The following strategies can help dental professionals manage family situations when treating minor patients.

  • Identify the individual who holds legal consent for the minor and document it in the dental record. If the individual is not a parent, identify who has the legal right to consent to treatment.
  • Insist that the parents provide a legal document or court order if there is a question regarding custodial rights or minor consent.
  • Review patient dental records to determine the existence of any documents that establish the status of a custodial parent or legal guardian (divorce decree, restraining orders, etc.) and ask the parents for a letter from the attorney that describes your legal obligations. Update the information on a regular basis.
  • Develop a “Conditions of Treatment” agreement for parents who are divorced or separating, and execute the agreement prior to the minor patient’s first visit. Consider including the following conditions on your practice website:
    • The dental care of your child is the practice’s first priority.
    • It is important to maintain an open dialogue regarding your child’s dental treatment.
    • The custodial parent has financial responsibility for dental payments.
    • Both parents are entitled to treatment information if they share legal custody.
    • If one parent has exclusive medical decision-making authority, that parent must provide a copy of the court order to include in the patient record.
    • Conflicts between parents may result in termination of the child’s dental treatment.
  • Require a written consent by proxy when an individual other than the custodial parent or legal guardian accompanies the child. Request updated information on an annual basis regarding individuals who are authorized to accompany the child and provide consent during treatment visits.
  • Document the communication if permission or consent is obtained via telephone from a parent or legal guardian.

Contact the Department of Patient Safety and Risk Management for guidance and assistance in addressing any patient safety or risk management concerns.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

J12385 04/20