Authorization For A Non-Parent To Consent To Medical Treatment Of A Minor: Fill & Download for Free

First of all I completely admire your desire to help.I don’t know your parents’ exact objection so I can only offer generalities.The first concern I might have would be “is this really just a month? What happens at the end of the month?”So you probably need to show that there is a plan and that it will actually happen. Because for me the only thing worse than leaving her on the street would be to evict her from my home and put her on the street… but your parents are probably not up for a permanent new daughter and grandchild.The second possible concern would be would be the fear that she is homeless through some fault of her own and that she would in some manner affect you and get you into misbehavior or other bad choices. Many people harbor prejudice against the homeless and ascribe their condition to bad character or their own actions (some of which is true…)You’ll have to talk that through with your parents to find their concerns and to see how she came to be in this situation. And to assure them you are not going to fall into bad situations as result.A third concern that I can imagine might be whether your parents are concerned about becoming legally liable for her actions, and whether they are violating the law or endangering them and their family by taking in a minor without any legal relationship or rights. What if she or her daughter get injured or fall ill? Your parents cannot consent to medical treatment, and might be billed for it anyway; their medical insurance won’t cover her.I’m not sure what you can do about that. She likely qualifies as does her daughter, for Medicaid due to low income. If she already is signed up for it that’s something to let them know. I don’t know why her parents aren’t in the picture taking responsibility; but a notarized letter authorizing her to live temporarily with you and to consent to medical care might help. Perhaps contact from the department of government that covers youth and families in your state would be useful.In fact there should be some state agency that is responsible for helping her out, why is she not seeking that assistance?A fourth concern might well be cost; how much do you know of your parents’ financial situation? Perhaps having two more mouths to feed would be a real burden. You should discuss this with them.And then you might ask if there is some other objection they have.You should approach them in a non accusing way. Your objective is to fully understand why they are taking that position, and to address legitimate concerns some of which they may not be comfortable sharing with you…yet.

It may depend on the specific test and circumstance. In the United States, state laws apply for medical consent. In general, parents or guardians need to authorize non-emergency medical services for their minor (under 18) children, but most states allow minors to consent for certain services where confidentiality is considered essential for proper treatment: mental health and substance abuse care, family planning (birth control), and testing and treatment for sexually transmissible infections. In cases where a minor has consented for their own care, refusal of a blood test (for example, for syphilis) must be respected.In cases where parental consent applies, the minor may not have legal authority to refuse a blood test, but I think doing everything feasible to address the reason for refusal—discomfort, for example—is appropriate. Despite the parents’ right to give consent, the child is the patient and should be treated with the same respect and humanity as any other patient.

Justice Karnan didn’t consent for medical check up. He said there were no Parents/ Attendants available in Kolkata who are looking after him. He is staying there on his own, without any family members.Indian law allows for legal proceedings to be stayed if a person is mentally incompetant.INDIAN LAW ON CONSENTIndian law recognises two related but distinct concepts of unsound mind i.e. mental incompetence and mental illness.Although these concepts have been treated as synonymous at times, the law does distinguish between the two.Mental illness is a medical condition while unsoundness of mind or incompetence is a legal finding.The Indian Contracts Act, 1872 is the only law in the country that defines a sound mind or mental competence. According to the law, a person is of sound mind if at the time of making a contract, he is “capable of understanding it and forming a rational judgment as to its effects upon his interests”. e.g. a child though mentally incompetent cannot be called as mentally ill.Similarly senility i.e. in old age in some persons it has been known that a loss of memory and absent mindedness sets in which is not inconsistent with the acts of a sane man. Lack of competence is inferred only if, due to age, the mind has become vacuous and delusory.The other condition is consenting under influence of intoxication. That is voidable. i.e. immediately after you turn sober you can cancel/ repudiate the consent if do not want to acquiesce (agree) to the consent.Lucid interval means a temporary restoration to sanity after which the condition may relapse/ deteriorate. A window/ period of time when a person who was insane has his intelligence restored long enough for him to fully understand the nature of his acts and responsibilities. An act done during a lucid interval is valid;similarly, in Criminal law, insanity is not a valid defense if the offense was committed during a lucid interval.Thus, mental illness is neither necessary nor sufficient for a finding of unsound mind or mental incompetence.COMPETENCE AND INFORMATION WHILE SEEKING CONSENTThere are two more additional aspects to be borne in mind: first, valid consent can be obtained only from a patient who is competent to consent and secondly, such consent must also be informed consent.To be competent to give a legally effective consent, the patient must be endowed with the ability to weigh the risks and benefits of the treatment that is being proposed to him.The law presumes that such an ability is generally acquired with the attainment of the age of maturity.A person who has attained the competent age and who has sound mind can give valid consent to the medical practitioner for any treatment. Persons who have attained the age of 18 are generally considered to have attained the age of maturity and are competent to give consent.The law thus presumes capacity, rationality, autonomy, and freedom if the person has attained the age of so called maturity.___________Consent means an agreement, compliance or permission given voluntarily without any compulsion. Section 13 of The Indian Contract Act states that 'two or more persons are said to consent when they agree upon the same thing in the same sense'. Common meaning of consent is permission whereas the law perceives it as a contract i.e. an agreement enforceable by law.In consent there are four separate but correlated elements that are: voluntary ness, capacity or competence, knowledge and decision-making.Voluntary ness suggests willingness of patient to undergo treatment.Capacity or competence means a degree of ability of the patient to understand the nature and consequences of the treatment offered.Knowledge means that sufficient amount of information about the nature and consequence of the treatment has been disclosed to the patient.Decision-making means the ability to take decisions regarding consent. To be legally valid all these elements must be present in the consent.The principle of autonomy is enshrined within Art. 21 of the Indian Constitution, which deals with the right to life and personal liberty. The expression personal liberty under Art. 21 is of the widest amplitude and covers a wide variety of rights, including the right to live with human dignity and all that goes along with it, and any act which damages, injures, or interferes with the use of any limb or faculty of a person, either permanently or temporarily. Maneka Gandhi v Union of India. AIR 1978 SC 597.However, the common law application of consent is not fully developed in India, although the Indian courts have often referred to these principles. In such situations, obviously one has to refer to the principles of the Indian Contract Act and the Indian Penal Code.The relationship between a medical professional and his patient is a contract by parties competent to contract giving rise to contractual obligations.Parties are generally competent (in accordance with the Indian Majority Act)(i) if they have attained the age of 18,(ii) are of sound mind, and(iii) are not disqualified by any law to which they are subject to.Furthermore, there is a stipulation in the contract law stating that consent of any party (in our case it is the patient) that is obtained by coercion, undue-influence, mistake, misrepresentation or fraud, will render the agreement invalid.However, in England, the General Medical Council guidelines state that the consenting age is 16 years old. A young person can be treated as an adult and can be presumed to have the capacity to decide. If the child is under the age of 16 he or she may have the capacity to decide, depending on his/her ability to understand what is involved. Where a competent child refuses treatment, a person with parental responsibility or the court may authorize investigation or treatment which is in the child's best interests. Interestingly, the position is different in Scotland where those with parental responsibility cannot authorize procedures a competent child has refused.______________________Consent in Criminal LawSection 88 of Indian Penal Code, 1860Legal Provisions of Section 88 of Indian Penal Code, 1860.Section 88- Act not intended to cause death, done by consent in good faith for person's benefit:Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harmIllustrationA, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death, and intending in good faith, Z's benefit performs that operation on Z, with Z's consent. A has committed no offence.Section 89- Act done in good faith for benefit of child or insane person, by or by consent of guardian:Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person:Provisos-Provided-First: - That this exception shall not extend to the intentional causing of death, or to the attempting to cause death;Secondly: - That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;Thirdly: - That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death of grievous hurt, or the curing of any grievous disease of infirmity ;Fourthly:- That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.Act not intended to cause death, done by consent in good faith for person’s benefit:The section, along with sections 89 and 92 of the Code, deals with acts done for the benefit of others whereas section 93 deals with communication made for the benefit of a person. Therefore, these sections 88, 89, 92 and 93 should be read together to understand the similarities and dissimilarities of these provisions.The section states that when something is done by a person which may cause any harm to another, or where the intention of the doer is to cause harm to another, or where the doer knows that harm is likely to be caused to another, the same does not amount to an offence if the act is done for the benefit of the other in good faith and he has given express or implied consent to suffer that harm, or to take the risk of that harm, and provided the doer has no intention to cause death. The authors of the Code observed:“It is often the wisest thing that a man can do to expose his life to great hazard. It is often the greatest service that can be rendered to him to do what may very probably cause his death. He may labour under a cruel and wasting malady which is certain to shorten his life, and which renders his life, while it lasts useless to others and a torment to himself. Suppose that under these circumstances he, undeceived, gives his free and intelligent consent to take the risk of an operation which ………… in a large proportion of cases has proved fatal, but which is the only method by which his disease can possibly be cured, and which, if it succeeds, will restore him to health and vigour. We do not conceive that it would be expedient to punish the surgeon who should perform the operation, though by performing it he might cause death, not intending to cause death but knowing himself to be likely to cause it.”i) As per the Indian Penal Code twelve years is the age for giving consent. Section 88 and Section 90 of the IPC suggest that the age for giving valid consent for any medical procedure is twelve years. Hence a doctor taking consent for medical or surgical treatment from a person aged twelve years or more can be legally said to have taken a valid consent and cannot be held criminally liable on this account. However Sections 87 IPC mentions eighteen years as the age for giving consent for acts not intended and not known to be likely to cause death or grievous hurt. However these acts are not necessarily for the benefit of the person. Hence Section 87 IPC is not applicable to the medical profession as here the acts are done for the person's benefit.ii) The general practice is that the patient or parent/guardian sign the consent form. Doctors do not sign it.iii) In many cases verbal consent is considered adequate and written consent dispensed with.____________Consent for medical examination and treatmentThe consent obtained, of course, after getting the relevant information will have its own parameter of operation to render protection to the medical practitioner. If the doctor goes beyond these parameters, he would be treating the patient at his risk, as it is deemed that there is no consent for such treatment at all. A doctor who went ahead in treating a patient, to protect the patient's own interest, was held liable as he was operating without consent. Ram Bihari Lal v Dr. J. N. Srivastava. AIR 1985 MP 150.The patient was suspected to have appendicitis. After obtaining due consent, she was subjected to an operation. However, upon incision, it was found that her appendix was normal and not inflamed. To protect the interest of the patient, the doctor removed her gangrenous gall bladder. Later, it was discovered that the kidney of the patient was affected. The doctor was held liable as he was operating without consent. This case law also signifies the traditional notion of paternalism prevalent among the members of the medical fraternity. It is a notion where the doctor takes-up the role of a parent of the patient and starts deciding on behalf of the patient himself. Unfortunately, the law does not accept this notion. The first priority of law is always the right of autonomy of the patient provided he is endowed with necessary capacity. A medical practitioner who believes that a medical procedure is appropriate and necessary for a patient's wellbeing can perhaps be forgiven for believing that the principle of autonomy should be sacrificed in the best interest of the patient. In the present case, had the doctor stopped after realizing that the patient's appendix was normal, he would have been protected as he was working under the valid consent of the patient, and more importantly, mere error of judgment is not culpable. When he proceeded in removing her gall bladder, he was acting sans valid consent, which was an extreme case of professional paternalism and gross disobedience to the right of the patient's autonomy.Hence, some commentators like Mill, et al. have advocated for minimal level of paternalism in the interest of the medical profession and the overall inability of humans in taking rational decisions, during the time of crises. Mill, J.S., ‘On Liberty’ Harmondsworth: Penguin; 1982. p. 68.Regarding proxy consent, when the patient is unable to give consent himself, there are no clear regulations or principles developed in India. If such a situation exists, the medical practitioner may proceed with treatment by taking the consent of any relative of the patient or even an attendant. In one case, the wife of a patient informed the hospital authorities in unambiguous terms that she had no objection to her husband undergoing bypass surgery, her consent was deemed sufficient for the purpose of any formalities with which the hospital was required to comply. C A Muthu Krishnan v M. Rajyalakshmi. AIR 1999 AP 311.Interestingly, in this case the relationship between the patient and his wife were strained.A patient was operated on for sterilization. While giving consent he deposed that he is married and has two baby girls. In fact, he was undergoing an operation only for getting the money as incentive. After the operation, his father contended that the patient was of unstable mind and was not competent to give consent. The court held that if there are no circumstances for a doctor to sense foul play or doubt about the capacity of the patient, he is protected. Satishchandra Shukla vs Union of India And Ors on 30 September 1985 in the Madhya Pradesh High Court; 1987 ACJ 628.These two cases demonstrate that a doctor acting reasonably under normal circumstances is always protected and he is never expected to play the role of an investigative agency.Recently, the apex court gave an impacting judgment in the area. Wherein the court observed that “where a surgeon is consulted by a patient and consent of the patient is taken for diagnostic procedure/surgery, such consent can't be considered as authorization or permission to perform therapeutic surgery either conservative or radical (except in a life-threatening emergent situation)”. Samera Kohli v Dr. Prabha Manchanda and Another. 2008; (1) SCALE 442.For the first time in India, the court ruled that however broad consent might be for diagnostic procedure, it cannot be used for therapeutic surgery. Furthermore, the court observed that “where the consent by the patient is for a particular operative surgery it can't be treated as consent for an unauthorized additional procedure involving removal of an organ only on the ground that it is beneficial to the patient or is likely to prevent some danger developing in the future, where there is no imminent danger to the life or health of the patient”. This proposition puts fetter upon the role of a “paternal doctor” in the Indian scenario. In this case, a 44-year-old unmarried female consulted her doctor and was advised to undergo a laparoscopy. A few consent forms were taken from her of which one was for admission and another one was for the surgery. The relevant one among such consent forms gave the doctor an allowance to carry out a “diagnostic and operative laparoscopy” and there was an additional endorsement that a “laparotomy may be needed”. When the patient was in the operation theater (and was unconscious), another proxy consent was taken from her attending mother for a hysterectomy. Her uterus, ovaries, and fallopian tubes were removed. Subsequently, when an action was brought, it was held that the operation was conducted without real consent and the doctors were held liable.This decision is of very far reaching consequences, pushing the development of consent law to new heights. It is contended that it is not only informed consent which is imperative now, but the same shall be “prior informed consent” unless there is imminent threat to the patient's life.In addition, this decision curtails the scope of proxy consent from the person having parental authority or an attendant.On the other hand, where there is reason to believe that a patient is unable to understand the nature of the treatment and its benefits or side effects before making the decision, it is necessary to consider whether an adult presumption of capacity is rebutted in that particular case. If the patient is incompetent to give consent, then the consent may be obtained from the attendant of the patient.______________In the UK, there are several ethical issues raised regarding the proxy consent on behalf of such persons. Even the Law Commission Report (Mental Incapacity, 1995) suggests few reforms. Irrespective of the age, for a person who is incompetent due to unsoundness of mind, consent will be obtained from the guardian of the patient. In India, the court has not come across borderline cases of an adult refusing treatment leading to emergency and leaving the doctor in a dilemma, unlike in the west.Even if the medical board finds that Justice Karnan has a mental illness, it does not automatically imply he is of unsound mind. Clause 5 of the Mental Health Care Act, 2017 says “determination of a person’s mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court”. Irrespective of his mental health status, therefore, the Supreme Court will have to satisfy itself that Justice Karnan is incapable of understanding his actions and is unable to form a rational judgement of the effects of his actions on his interests, and thus make a declaration that Justice Karnan is of unsound mind, before halting legal proceedings. Indian law allows for legal proceedings to be stayed if a person is of unsound mind._____________________________________Informed Consent in PsychiatryIn its ethical dimension informed consent encourages respect for individual autonomy in medical decision-making. There are however conditions and circumstances that limit autonomy and therefore also autonomous choice. People with a learning disability or a mental or physical illness may be temporarily incapacitated to make autonomous choices due to their condition. In these cases the concepts of capacity and competence become paramount in determining the extent to which a person's autonomy is restricted. Competence is a legal term, and courts decide on the competence of a person based on the inputs provided to it by the doctors who give an opinion on the capacity of the patient to comprehend facts and make independent decisions. Capacity in contrast is a medical term and doctors determine a person's capacity to make certain choices.Lepping P. Consent in Psychiatry- an ethical review. Psychiatric Bulletin. 2003; 27:285-9.____________It is worth noting that this distinction often breaks down in practice. When clinicians determine that a patient lacks decision making capacity the practical consequences may be the same as those attending a legal determination of incompetence.Two basic preconditions have to be met to render a person incapable of managing his or her own affairs. Firstly, there needs to be an objective cognitive deficit that impairs problem solving and decision-making. Secondly, there must be an incapability to sensibly delegate responsibility to someone else.Some authors have suggested a 'sliding scale' of ability to take into account that different decisions require different levels of understanding. Thus decisions of most potential risk, such as death, demand greater levels of capacity than decisions of minor potential risk. Buchanan A, Brock D. Deciding for Others.Cambridge: Cambridge University Press; 1989. p. 51-70.____________Hence if the consequences for welfare are grave our need to be able to certify that the patient possesses the requisite capacity increases, but if little in the way of welfare is at stake, we can lower the level of capacity required for decision making. Every effort should be made to minimize the time taken to determine a patients' capacity. O'Reilly RL. Mental Health Legislation and the right to appropriate treatment.Can J Psychiatry. 1998 Oct; 43(8): 811-5.____________Some psychiatric disorders can impair decision-making functions to some extent, but not to the point where patients would be considered legally incompetent. In such cases, clinicians can make disclosure in a manner that takes patients' limitations into account. This may include simplifying elements of the disclosure, offering information in smaller amounts stretched out over time, and repeating disclosure several times. The implication of these accommodations to patients' impairments is that some patients may be asked to consent to treatment (when it needs to be implemented promptly) before having received a disclosure comparable to that offered to non-impaired persons.Some psychiatric patients may not be in his senses, i.e. manifest impairments of decision-making capacities that are likely to resolve quickly especially if effective treatment can be implemented. In such cases short term treatment of the patient can be initiated, even in the absence of a fully adequate consent, obtaining such consent as soon as the patients' condition permits it. This practice is acceptable when recovery of decision-making capacities is likely to occur.Psychotherapy and other psychiatric records may contain sensitive and deeply personal information about patients. These records should not be released without patient consent. Patients should understand to whom the information will be disclosed, what information will be discussed, how the information will be used and what the potential consequences might occur. Beck P. The confidentiality of psychiatric records and the patients right to privacy.Can J Psychiatry. 2001 Apr; 46(3): 6.____________ORDER CONTRADICTS MENTAL HEALTH ACTEven as the bench has posted the case for further hearing on May 9, doubts have been expressed by observers on whether Justice Karnan can be subjected by the Supreme Court to a medical examination without his consent. Justice Karnan himself has reportedly refused to subject himself to such medical examination, and has questioned the authority of the Supreme Court to assume that he suffers from mental illness.Worryingly, the bench’s order appears to be inconsistent with the Mental Health Care Act, 2017 – which defines “informed consent” under Section 2(1)(i) as follows:“Informed consent” means consent given for a specific intervention, without any force, undue influence, fraud, threat, mistake or misrepresentation, and obtained after disclosing to a person adequate information including risks and benefits of, and alternatives to, the specific intervention in a language and manner understood by the person”.Although the Supreme Court’s order does not use the expression “mental illness”, the fact that the proceedings referred to it in the context of his defiance of the court’s previous orders, cannot be ignored. Section 3(2) of the Act says:“No person or authority shall classify a person as a person with mental illness, except for purposes directly relating to the treatment of the mental illness or in other matters as covered under this Act or any other law for the time being in force.”Section 3(3) of the Act says:Mental illness of a person shall not be determined on the basis of• political , economic, or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person;• Non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community.Section 4(1) of the Act further says:Every person, including a person with mental illness shall be deemed to have capacity to make decisions regarding his mental health care or treatment if such person has ability to(a) understand the information that is relevant to take a decision on the treatment or admission or personal assistance; or(b) appreciate any reasonably foreseeable consequence of a decision or lack of decision on the treatment or admission or personal assistance; or[c] communicate the decision under sub-clause (a) by means of speech, expression, gesture or any other means.Moreover, a constitution bench of the Supreme Court in Selvi v State of Karnataka, has declared that narco tests, and lie detectors can only be administered with consent of the accused, in order to meet the requirements of Articles 20(3) and 21 of the Constitution.If that is the high standard which the court has set for an investigation of a crime, directing Justice Karnan’s medical examination without his consent – under the unstated assumption that he might be suffering from mental illness, so as to make him incapable of defending himself in the ongoing contempt proceedings – appears to be a disproportionate response from the highest court.