Minor Consent: Challenges for Pediatric Dentistry

Richard F. Cahill, JD, Vice President and Associate General Counsel, and Patti L. Ellis, RN, CPHRM, Patient Safety Risk Manager II, The Doctors Company, Part of TDC Group

Reduce risk before treating a minor by identifying legal guardianship and parental rights at the outset of the relationship. As part of the preliminary intake process, consider identifying parental responsibility and status and documenting any potential issues clearly in the dental record.

Treating a minor patient whose parents are involved in an acrimonious divorce or who do not agree on the treatment or payment plan can present unique challenges for dental practitioners. 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 minor patient may attend a dental appointment alone or with a surrogate caregiver, such as a stepparent, relative, family friend, or older sibling.

The following scenarios illustrate the types of situations that can arise when providing treatment to minor patients.

Scenario 1

A father presented with his preschool-aged 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 finish stage two. In the interim, the dentist received a deposition request from an attorney who represented the child’s mother. The dentist notified the practice’s professional liability insurer immediately and received assistance from legal counsel throughout the deposition process. 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 young teenager, 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 missing several appointments and scheduled payments for services already rendered, 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 contacted, the father 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 were to return and care was continued. The orthodontist could continue to provide care knowing these risks or remove the orthodontic appliances before discontinuing care. The practitioner faced potential dilemmas of either abandoning the child or continuing to deliver services without receiving compensation.

Scenario 3

A preteen patient and the patient’s 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 promptly 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, the parents consulted with the orthodontist and expressed concern that the absence of canine teeth would negatively affect the child’s 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.

Risk Management Strategies

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

• Review state consent laws to understand the rights of parents and the complexities related to the legal consent of minors. For example, Florida Statute 1014.06, “Parental consent for health care services,” enacted July 1, 2021, requires healthcare practitioners to obtain written parental consent prior to providing any type of medical treatment, including prescribing medicinal drugs to a minor child. (Under Florida law, it is recommended that a separate written consent form be obtained for prescribing medicinal drugs to a minor patient.) Simply having a child’s parents present during an office visit does not satisfy the consent requirement. Obtain legal consultation in your state for interpretation of state consent laws.
• Consult state laws on the legal requirements for emancipated minors—who do not require parental consent and can legally consent for their own healthcare. When treating an emancipated minor, obtain a copy of the court/legal document and place it in the patient’s dental record.
• 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 any question arises 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 (such as a divorce decree or restraining order) 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.

(For more on this topic, see our article, “Proactively Manage Patient Expectations With a Conditions of Treatment Agreement.”)

• Document an informed consent note in the minor patient’s dental record. For more information on documentation, see our article, “Defensible Medical and Dental Records.” Patient records, which serve a critical function in healthcare delivery and routine clinical operations, can provide key evidence in the event of a professional liability action.
• Document the communication if permission or consent is obtained via telephone from a parent or legal guardian.
• Require a written consent by proxy when an individual other than the custodial parent or legal guardian accompanies the child. Include an advance acknowledgment that the individual identified has authority to approve the planned course of treatment. Request updated information on an annual basis regarding individuals who are authorized to accompany the child and provide consent during treatment visits.
• Follow state requirements for mandatory reporting to law enforcement or child protection agencies if child abuse, neglect, or human trafficking is suspected.

For additional assistance, contact the Department of Patient Safety and Risk Management at (800) 421-2368 or patientsafety@thedoctors.com.