Who is a “Person Standing In Loco Parentis” and When Can They Consent to Health Care for a Minor?
Health care providers working in public health and serving children are likely familiar with the authority of parents, guardians, and custodians to make health care decisions for a minor. These providers may also be familiar with the legal processes used to award guardianship or custody and the paperwork that can be produced to prove a guardian or custodian’s relationship to a child. But North Carolina law contemplates that another party- a person standing in loco parentis (PILP)- may be responsible for a minor, including the minor’s health care. There are many situations where an adult may step in and become a PILP for a child, but the informal nature of such caretaking arrangements may mean that a PILP will not have paperwork to “prove” their relationship to the child. How can providers determine whether an adult is actually a PILP to a child? And when can a PILP consent to health care services for a child? Read on for more information about the law and special situations involving PILPs, minors, and immunizations.
Defining “Person Standing in Loco Parentis”
The North Carolina statutes that govern the provision of health care services to a minor[1] do not define “person standing in loco parentis,” but the term is defined in the statutes governing the practice of pharmacy. G.S 90-85.3 defines a PILP as “the person who has assumed parental responsibilities for a child.” The North Carolina Court of Appeals has also addressed the question of what it means to be a PILP, stating in Shook v. Peavy, 23 N.C. App. 230 (1974) that a PILP is someone “who has assumed the status and obligations of a parent without a formal adoption.” In State v. Pittard, 45 N.C. App. 701 (1980), the Court of Appeals expounded on that definition by explaining that “a person does not stand in loco parentis from the mere placing of a child in the temporary care of other persons by a parent or guardian of such child. This relationship is established only when the person with whom the child is placed intends to assume the status of a parent—by taking on the obligations incidental to the parental relationship, particularly that of support and maintenance.”
Unlike an adult or government agency (e.g., a department of social services) that has been granted guardianship or custody of a child by a court, a PILP won’t have official paperwork that documents their PILP relationship to the child. Whether or not someone is a PILP to a child will depend on the unique facts of the situation, which means that these determinations must be made on a case-by-case basis. Asking questions about who cares for the child, and the extent and nature of that care, may help providers get information that is helpful for determining whether someone is a PILP. For example, a provider might ask questions including, but not limited to: Who does the child live with? Who provides financial support for the child (buying groceries, paying for health insurance, making sure the child has clothes, etc.)? Who attends to the child’s daily needs, such as preparing meals? Who ensures that the child attends school? When a provider determines that an adult is a PILP to a child, the provider should document that determination for their organization’s records.
When Can a PILP Consent to Health Care Services for a Minor?
There are only a few statements in North Carolina statutes that specifically recognize the authority of a PILP to consent to health care for a minor. For example, G.S. 130-153(d) specifically allows a PILP to consent to immunizations for a minor. Under G.S. 122C-57, a legally responsible person (which is defined under G.S. 122C-3(20) to include a PILP) can consent to or refuse mental health treatment for a minor. In addition to those specific statements of a PILP’s authority, G.S. 90-21.1 describes situations in which a physician can treat a minor without the consent of a parent, guardian, or PILP. This implies that a PILP, like a parent or guardian, has general authority to consent to a wide range of health services for a minor.
PILPs, Minors, and Immunizations: Clarification of the Law
Consenting to Immunization v. Presenting a Child for Immunization
In the case of immunizations, there is an important distinction between a PILP who consents to an immunization for a child and someone who is simply presenting a child for immunization. As previously mentioned, G.S. 130A-153(d) says that a physician or local health department may immunize a minor with the consent of the minor’s parent, guardian, or PILP. Additionally, G.S. 130A-153(d) allows a physician or local health department to immunize a minor who is presented for immunization by any adult who signs a statement that they are authorized by the minor’s parent, guardian, or PILP to obtain the immunization for the minor. One benefit of this provision is that it may make it easier for families to obtain the immunizations for their children that are required for school entry.
Here’s an example of how this second situation described under G.S. 130A-153(d) might play out: A parent pays a 20-year-old college student to pick up their elementary school-aged child after school and watch the child until the parent gets home from work. The parent schedules an immunization appointment for their child during the timeframe when the babysitter watches the child and asks the babysitter to take the child to that appointment because the parent won’t be able to get off work early in time for the appointment. At the appointment, the babysitter must sign a statement saying that the babysitter is authorized by the child’s parent to obtain the immunization for the child.
In this example, the babysitter is not acting as a PILP- they simply watch the child for a few hours each day, for pay, at the direction of the child’s parent. The babysitter is also not the party providing consent for the child to be immunized (the parent is the providing the consent). Finally, while the babysitter must sign a statement that they are authorized to obtain the immunization for the child, the law does not require a written and signed note from the parent confirming that the babysitter has permission to present the child for immunization.
Immunization of a Minor with an “EUA” Vaccine
In 2021, the legislature amended North Carolina’s minor’s consent statute, G.S. 90-21.5, by adding a new paragraph (a1) that reads: “Notwithstanding any other provision of law to the contrary, a health care provider shall obtain written consent from a parent or legal guardian prior to administering any vaccine that has been granted emergency use authorization [(“EUA”)] and is not yet fully approved by the United States Food and Drug Administration [(“FDA”)] to an individual under 18 years of age” (emphasis added). More information about the recent change to G.S. 90-21.5 and the difference between a vaccine that is available under an EUA versus being “fully approved” is available in my previous blog post, “An Update on Minor’s Consent: Changes to the Law and Implications for COVID-19, Mpox, and Beyond.”
Notably, the new language of G.S. 90-21.5(a1) leaves out PILPs and only contemplates a parent or legal guardian being able to give consent for a minor to receive immunization with an EUA vaccine. This is different from the more general statute, G.S. 130A-153(d), which says that physicians and local health departments can immunize a minor upon the consent of a parent, guardian, or PILP. Under the rules of statutory construction, the more specific and most recent law generally prevails, which means that G.S. 90-21.5(a1) should be read to limit the parties that can consent to immunization of a minor with an EUA vaccine despite the more general and broad authority described in G.S. 130A-153(d). This may create a conundrum for providers, PILPs, and children when a PILP is seeking to have the minor immunized with an EUA vaccine because the very fact that a non-parent, non-guardian adult is standing in loco parentis to the minor means that there might not be a parent or guardian involved in the child’s life who is able to give consent in this specific situation.
Questions?
Do you have questions about the information provided here or other questions about North Carolina public health law? Send me an email at kirsten@sog.unc.edu.
Notes
[1] In this blog post, I use the term “minor” to refer specifically to an unemancipated minor. In North Carolina, a minor who is 16 or 17 years of age may be emancipated by a court or by marriage. Emancipated minors’ legal capacity to consent to medical health services for themselves and their children is set out in G.S. 90-21.5(b). Emancipation is uncommon and a minor who is seeking to access health services on their own consent and who claims to be emancipated should be able to provide proof of emancipation.
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