Can Informed Consent be Obtained?

by Robert Van Howe, MD

In February 1995 the American Academy of Pediatrics Committee on Bioethics released a statement on 'Informed Consent, Parental Permission, an Assent in Pediatric Practice.'1 Unfortunately, this committee's re-analysis and redefining of these concepts put them at odds with the Academy's position on neonatal circumcision. The concept of informed consent does not now apply, because only a competent person can give consent (informed or otherwise), and an infant clearly is not competent. For the same reason patient assent does not apply. Finally, the concept of informed parental permission cannot apply because informed parental permission, according to the Committee on Bioethics, allows for medical interventions only in situations of clear and immediate medical necessity, such as disease, trauma, or deformity. Routine neonatal circumcision satisfies none of these requirements. If none of these categories are appropriate for routine neonatal circumcision, can a parent legally give permission for this procedure to be performed upon their son before he attains the age of reason? The committee suggests that in non-essential treatments, which could be deferred without substantial risk, that the physician and family wait until the child's consent could be obtained.

In Re Phillip B. The California Court of Appeal ruled that parental autonomy is not absolute. In Little v Little a 14 year old mentally incompetent but otherwise perfectly healthy, daughter applied (through a guardian ad litem ) for an order authorising her mother to consent to the removal of a kidney from the her body, for the purpose of transplanting the kidney into her brother who was suffering from endstage renal disease.

A Texas Court of Appeal said no. 'Significantly, however, for our purposes, this power of parents ... to consent to surgical intrusions upon the person of the minor ... is limited to the power to consent to medical 'treatment.' Black's Law Dictionary defines medical treatment as 'a broad term covering all steps taken to effect a cure of any injury or disease: the word including examination and diagnosis as well as application of remedies.' To date, all courts have held that surgical removal of any normal healthy, non-diseased, uninjured part of the body is not 'treatment.'

In a similar transplantation case, a Louisiana Court of Appeal ruled that surgery could not take place and the Court owed 'protection to a minor's right to be free in his person from bodily intrusion to the extent of the loss of an organ unless such loss be in the best interest of the minor.' Likewise, the ruling in Wisconsin v Yoder subjects parental duty and right to limitations 'if it appears that parental decisions will jeopardize the health or safety of the child, or have potential for significant social burdens.'

Following in kind, Kate's School v Department of Health limited a parents' right to prescribe their treatment of choice for their mentally retarded children.

In Valerie N. v Valerie N. The California Supreme Court found that the parents as 'conservators, were not entitled to have conservatee, who was unable to consent to sterilization, sterilized inasmuch as there was neither evidence of necessity ... nor sufficient evidence that less intrusive means ... were not presently available to conservatee.' The Court further held '... as to those medical procedures permitted after court authorization the Legislature has required a judicial determination that the condition of the conservatee 'require the recommended course of medical treatment.' The Court also found it is necessary to 'preserve the right ... to be free of intrusive medical and surgical procedures.'

In Prince v Massachusetts, The United States Supreme Court ruled that 'parents may be free to become martyrs themselves. But it does not follow they are free ... to make martyrs of their children before that have reached the age of full and legal discretion when they can make that choice for themselves.'

With these legal precedents in place and parents unable give assent or permission under the Committee on Bioethics guidelines, can a physician ethically or legally perform a 'prophylactic' circumcision on a newborn? The Committee states that pediatric health care providers 'have legal and ethical duties to their child patients to render competent medical care based on what the patient needs, not what someone else expresses. Although impasses regarding the interests of minors and the expressed wishes of their parents or guardians are rare, the pediatrician's responsibilities to his or her patient exist independent of parental desires or proxy consent. Based on the current case law, Charles A. Bonner, J.D. a specialist in medical malpractice concludes, 'Once it is shown that a child has been subject to an injury to his sexual organ without ... medical necessity, a case may be made for enforcement of existing state laws prohibiting assault and battery, conspiracy to assault and batter, child abuse, and sexual abuse.'

References

  1. Committee on Bioethics. Informed Consent, Parental Permission, and Assent in Pediatric Practice. Pediatrics, Feb. 1995, vol 95: 314-317.

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