Q We recently had a situation in which a physician sent
a requisition for a test on a minor whose mother brought the child in to
have blood drawn. Later that day, the child’s father called to cancel
the test; he did not want the test performed, and he would not pay for
it. Who can consent to lab testing for a minor child? Who can cancel the
request?
A No blanket solution can be applied in every
situation, but in the scenario presented, it appears that the child’s
mother had the authority to consent for testing. Cases like this point
out the intersection of a number of different principles in laboratory
risk management, and understanding them can help determine when to seek
legal assistance and why.
1. In general, if a patient shows up for a lab test
and permits blood to be drawn, that patient has consented to the
performance of a test. Exceptions require specific, detailed written
consent, such as when the information from the test is particularly
sensitive (e.g., STD, HIV, or genetic testing). The parents or legal
guardians of a child have the authority to authorize medical care,
including lab tests, for a minor child. But for some tests (e.g., STD,
pregnancy) a minor child can consent without parental involvement, but
this varies by state.
2. A parent does not have the authority to consent
for testing on a minor child in some situations. Most of these are
the result of divorce, in which one custodial parent has the authority
to make medical decisions. Labs usually have no way of knowing if this
is the case, but when a conflict arises between parents, explore this
area to solve this problem. In this example, if the father does not have
custody, and the mother has sole authority to make medical decisions,
then the father’s directive can be disregarded. This is not a decision
that should be made at the reception desk; some legal investigation
would be warranted.
The parents or legal guardians of a child have the authority to authorize medical care, including lab tests, for a minor child.
3. Any patient or parent with the authority to make
medical decisions can withdraw consent for testing. Patients can
decide that they do not want tests run. If a patient decides after his
blood has been drawn that he does not want a test done, there is a
legitimate argument that he can withdraw his consent to run the test if
it has not already been completed, or he can refuse to have the results
released to the physician if it has. The extent of this right depends on
the way state laws are written; and, in general, the patient will still
be responsible for paying for the test if the consent is withdrawn after
the test is done. Most importantly, once consent is given, the patient
(or in this case, his parent) has a responsibility to make this known to
the lab, and the lab can continue to function under the prior consent
until that time. By the same token, if a parent has no authority to
consent, he has no authority to withdraw consent.
4. The law presumes that either parent can give
consent and that both agree until and unless the lab is made aware of a
disagreement. This means that there is no need to inquire about an
absent parent to confirm agreement with permission to test.
5. Once a dispute about consent is evident, the lab
has a responsibility to determine who has the authority to give consent. This can sometimes be a long and exhaustive process, and can involve not
only lawyers but also courts. If a sensitive test is involved and the
specimen is unique or will deteriorate, getting a legal opinion on the
advisability of running the test and holding the results may be wise
until the matter can be clearly resolved so the opportunity to get
useful information is not lost.
6. Holding a sample until disputed consent is
resolved is generally less risky than performing a test in the face of
disputed consent. For the majority of lab tests, timing is not an
issue: Either a sample can be drawn after the legal issues have been
sorted out, or a retained sample can be tested. Any lab that performs a
test in the face of ambiguous consent, however, risks legal liability on
the basis of negligence or — in extreme situations — battery, for
failing to obtain proper consent when it had reason to believe that
consent was an issue.
The complex issues involved in a dilemma such as the one posed
demonstrates that this type of decision should not be made by laboratory
professionals alone. A basic understanding of the principles can help a
lab develop policies and procedures to quickly and efficiently identify
issues that require legal clarification when there is confusion about
consent.
Lab professionals are heroes on the front lines of medicine.
—Barbara Harty-Golder, MD, JD,Pathology-Attorney Consultant,
Chattanooga, TN
Dr. Harty-Golder writes and lectures extensively on healthcare law, risk management, and human resource management. Contact her at
toadehall@comcast .
