Obtaining Written or Documented Parental Consent for Treatment of a Minor Under S.L 2023-106, Part 3

On August 16, 2023, Session Law (S.L.) 2023-106, which included the Parent’s Bill of Rights, was passed after a legislative override of the Governor’s veto. Part 3 of the law, which goes into effect on December 1, 2023, requires health care practitioners and health care facilities to obtain written or other documented parental consent prior to providing treatment to minors, except in limited situations. In previous posts, I addressed the status of North Carolina’s minor’s consent statute and what constitutes “treatment” in light of the session law’s passage. This post focuses on who can give consent and how consent, once obtained, must be memorialized.

1. A Quick Refresher on S.L. 2023-106, Part 3

Under S.L. 2023-106, Part 3, health care practitioners and health care facilities must obtain written or other documented consent from a minor’s parent before providing treatment to the minor in, except in certain situations. The terms “health care practitioner,” “health care facility,” “parent,” and “treatment” are defined terms under the new law. Prior parental consent is not required when care is provided to a minor under North Carolina’s minor’s consent statute, G.S. 90-21.5; when care must be provided to a minor in certain time-sensitive situations under G.S. 90-21.1; when care is provided pursuant to a judicial waiver under G.S. 90-21.7(b); when the care is emergency health care, first aid, or lifesaving techniques provided by public school employees pursuant to G.S. 115C-375.1; or in the situations discussed in Section 3 of this blog post.

Please see this blog post for a more detailed summary of S.L. 2023-106, Part 3.

2. Who is a “Parent” Who May Give Consent?

The new law defines a “parent” as “[a] minor’s parent, guardian, or person standing in loco parentis.” Let’s take a closer look at each of these categories of persons:

• Parent: A parent could be a “natural” parent, which is a minor’s biological parent whose parental rights related to health care decision-making have not been limited or terminated by a custody or court order. A parent could also be an adoptive parent, including a stepparent who has completed the legal adoption process.
• Guardian: A guardian is someone who has been appointed to the role of the minor’s guardian of a person or general guardian by a court in accordance with G.S. 35A, Article 6, G.S. 7B, Article 6, or G.S. 7B-2001. A guardian is different than someone who has been awarded legal custody of a child in a custody proceeding and who would be referred to as a “legal custodian” or “custodian.”[1]
• Person standing in loco parentis (PILP): The new law defines a PILP as “a person who has assumed parental responsibilities, including support and maintenance of the minor.” For more information about PILPs, including how the courts have opined on who qualifies as a PILP, please see this recent blog post.

This definition of “parent” excludes, for example, foster parents and babysitters. Nevertheless, there are still certain situations where a non-parent can give consent for treatment of a minor. This is discussed further in the section below.

3. When a Non-Parent May Still Give Consent to Treatment of a Minor

There are limited situations where a non-parent may be able to consent to treatment of a minor, including: (1) when a child is placed in the custody of the Department of Social Services (DSS) and (2) when a parent’s authority to consent to treatment for their child has been delegated to another person. There may be other instances in which the law permits a non-parent adult to consent to treatment for a minor that are not discussed in this post.

The DSS Director for a Minor in DSS Custody

After DSS files a petition alleging that a minor is abused, neglected, or dependent, DSS may seek a nonsecure custody order, which is a temporary order that places the minor in DSS’s custody. Under G.S. 7B-503, nonsecure custody is ordered in certain situations when the minor’s health and safety are at risk, including but not limited to situations where the minor has been abandoned or is at substantial risk of physical injury or sexual abuse due to conditions created by the child’s parent, guardian, custodian, or caretaker.

When a minor is placed in the nonsecure custody of DSS, G.S. 7B-505.1 authorizes the DSS director to give consent for the minor to receive routine and emergency care, as well as testing and evaluation in exigent circumstances. Additionally, the court order granting nonsecure custody can authorize the DSS director to consent to non-emergency and non-routine medical care for the minor. In these situations, consent may be given directly by the DSS director or (as is more often the case) consent may be provided by a DSS social worker acting as the DSS director’s authorized representative.[2] If the minor is ultimately found by a court to have been abused, neglected, and/or dependent, then the court will enter disposition orders. The disposition orders may require that the minor be placed in the custody of DSS.[3] When this happens, the same law- G.S. 7B-505.1- applies.[4] While a foster parent or a relative who the child is living with while in DSS custody is able to bring the child to a medical appointment, it is still the DSS director (or a DSS social worker acting as the DSS director’s authorized representative) who must consent to the minor’s health care. For a more in-depth discussion of the types of care that a DSS director may consent to under G.S. 7B-505.1, please see this blog post by my colleague Sara DePasquale.

Although the definition of “parent” under S.L. 2023-106, Part 3 does not include the DSS director, the new law does not abrogate the DSS director’s authority to consent to treatment of a minor under G.S. 7B-505.1 and 7B-903.1(e). The requirements in S.L. 2023-106 for a health care practitioner or facility to obtain parental consent include a caveat, which reads: “Except as otherwise provided in this Article [1A] or by court order […].” Only a court order can grant DSS custody of a minor. As a result, a DSS director’s authority to consent to certain care for a minor in DSS custody is not made void by S.L. 2023-106, Part 3.

A Non-Parent Authorized by a Parent Under G.S. 32A, Article 4

In 1993, the legislature enacted G.S. 32A, Article 4, which permits a custodial parent to “grant an agent full power and authority to consent to and authorize health care for the minor child to the same extent that a custodial parent could give such consent and authorization.” A “custodial parent” under this law is defined as the parent with sole or joint legal custody of their minor child.[5] For the purpose of this blog post, G.S. 32A, Article 4 is hereinafter referred to as the “Minor’s Health Care Power of Attorney (HCPOA) Law.” G.S. 32A-28(b) notes that the Minor’s HCPOA Law establishes a “nonexclusive method” for a parent to authorize an agent to consent to health care for the parent’s minor child.

When might a parent delegate their authority to consent to care to an agent under the Minor’s HCPOA Law? Here are a few possible examples:

• A child is staying with grandparents for several weeks while the parent travels. The parent authorizes the grandparents under the Minor’s HCPOA Law to consent to care for the child during those weeks while the parent is out of town and unavailable.
• A parent is unable to take a child to a well-child appointment, so an adult sibling takes the child instead. The parent authorizes the adult sibling to give consent for the well-child visit for the younger child.
• A child is spending the summer at a sleepaway camp that is out of town. The child’s parents authorize the summer camp director to consent to types of care that the parents anticipate the child could need while away at camp, such as treatment for poison ivy or strep throat.

Under the Minor’s HCPOA Law, a parent who delegates their authority to consent for their minor child’s health care must: (1) be at least 18 years old or be an emancipated minor, (2) have decisional capacity necessary to give consent for care and delegate that authority to give consent, and (3) be a “custodial” parent with sole or joint legal custody. A natural or adoptive parent has legal custody of their child unless their parental rights have been terminated or limited by a court order. Therefore, a natural or adoptive parent can be a custodial parent who may delegate their consenting authority to another person under the Minor’s HCPOA Law (subject to any court orders to the contrary).

Under the Minor’s HCPOA Law, the document used to memorialize a custodial parent’s delegation of their consenting authority for their minor child to an agent is called an “authorization.” An authorization template is available at G.S. 32A-34. However, an authorization does not have to perfectly mirror the template found in statute to be valid. Under G.S. 32A-29(2), an authorization is valid if it (1) is in writing, (2) is signed and acknowledged by the custodial parent before a notary public, and (3) otherwise substantially meets the requirements of the Minor’s HCPOA Law. An authorization may be broad or narrow in scope. When the authorization has limitations- for example, the custodial parent is only allowing the agent to consent to certain types of treatments for the minor, or the authorization is only in effect for a specific period of time- then those limitations should be written out in the authorization. Pursuant to G.S. 32A-31(c), an authorization cannot be used to empower an agent to withhold or withdraw life sustaining care from a minor.

An authorization can be revoked under any of the processes described at G.S. 32A-32. Physicians, dentists, and other health care providers who provide care based on a good faith reliance on an authorization are immune from certain liability under G.S. 32A-33. Health care practitioners and facilities that accept the consent of an agent to provide treatment to a minor should make a copy of the authorization document to include in the minor patient’s record. Health care practitioners and facilities are encouraged to consult with legal counsel, malpractice insurers, and licensing boards, as appropriate, to determine additional best practices.

Note: An authorization document is evidence of an agent’s legal authority to consent to treatment for a minor. The authorization is not documentation that the consent process was completed with the agent and that the agent’s consent to a specific treatment was, in fact, given. Options for memorializing that the consent process has been completed and that consent has been obtained are discussed next.

4. Written v. Documented Consent

S.L. 2023-106, Part 3 requires that the consent for treatment that is given by the minor’s parent be “written or documented.” It is important for health care practitioners and facilities to remember that consent is a process, not merely the collection of a signature or receipt of a verbal “yes.”[6] The consent process is an exchange between the provider and the patient (or their representative) that includes, but is not limited to, a discussion of the risks, benefits, and alternatives to a particular treatment.[7] It is this exchange that allows the consent to be “informed.” Health care practitioners and facilities that are unsure of the standards for informed consent should contact legal counsel, malpractice insurers, and licensing boards, as appropriate, for guidance.

S.L. 2023-106, Part 3 does not change the standards or laws that govern the informed consent process; rather, it requires that the outcome of a consent process (a parent agreeing to give consent for treatment of their minor child) be memorialized, either in writing or by some other form of documentation.

Written Consent

S.L. 2023-106, Part 3 does not include a definition of “written” consent. In accordance with the rules of statutory construction, the word “written” may be “construed to include printing, engraving, lithographing, and any other mode of representing words and letters […].”[8] This could include, for example, a typed form- either printed in hardcopy or available online through a patient portal- that recites topics addressed during the consent process (risks, benefits, alternatives, etc.) and includes a place for the parent (or the DSS director, or the agent authorized under the Minor’s HCPOA Law) to sign. A written consent could also be a form developed by a government agency, such as DSS-1812, that has been created to give practitioners a standardized method for documenting consent. Some practitioners and facilities also use written checklists. As the consent process proceeds and each required element of the informed consent process is completed, a step in the list is checked off. The parent (or the DSS director, or the agent authorized under the Minor’s HCPOA Law) typically signs the checklist once the consent process has been completed.

Since the passage of S.L. 2023-106, Part 3, many have asked: What about a handwritten or typed up consent “note” that appears to have been signed by the minor’s parent and that is presented by the minor or a non-parent adult without the parent present? This situation presents several challenges. First, the health care practitioner or facility should ensure that the informed consent process for the treatment described in the note has actually been completed with the consenting parent. Second, practitioners and facilities may understandably have concerns about their obligations to verify the validity of such a note.

There is very little law to guide practitioners with concerns about verifying consent notes, except for a 1998 North Carolina Court of Appeals Case called Jackson v. A Woman’s Choice, Inc.  There, a physician provided an abortion to a minor who presented a handwritten consent note that had allegedly been written and signed by the minor’s parent. The note had actually been forged by the minor patient. The patient and her parents later sued the physician for battery and infliction of emotional distress. On appeal, the court held that when a “health care provider is presented with an apparently valid written parental consent and is thereby deceived into performing an abortion procedure upon a minor, the unknowing and unintentional failure to obtain actual parental consent is not a violation […]” of the statute that required written parental consent for the abortion. [9],[10]

The favorable outcome for the physician in Jackson does not ensure that practitioners who act on a seemingly valid consent note and provide care will not face consequences under S.L. 2023-106, Part 3. There are key differences between the law that required written parental consent in Jackson and S.L. 2023-106, Part 3. G.S. 90-21.10 establishes penalties for anyone who “intentionally and knowingly” provides an abortion to a minor in violation of G.S. 90, Art. 1A, Part 2, including by failing to obtain the required parental consent. In contrast, the provision of S.L. 2023-106, Part 3 that establishes penalties for violating the new parental consent requirements imposes strict liability- which means that a health care practitioner or facility can be found in violation of the parental consent requirements regardless of their intent or their (erroneous) belief that a forged consent note was legitimate. Health care practitioners and facilities that are presented with consent notes allegedly signed by a minor’s parent may wish to consult with legal counsel before providing treatment to the minor patient, particularly if they are unable to separately confirm that the parent did give consent for the care.

Documented Consent

S.L. 2023-106, Part 3 also allows a parent’s consent to treatment of their minor child to be documented in a manner other than in writing. The new law does not provide a definition of “documented consent.” One common example, however, is the documentation of consent by the health care practitioner in the patient’s health record. Here, the consent process has been completed and the parent’s consent might be given orally (rather than being memorialized by signing a written document). The health care practitioner then documents in the minor patient’s record that the consent process was completed and that the parent gave consent.

Written or Documented Consent: Which One Should I Use?

S.L. 2023-106, Part 3 requires that the consent be written “or” documented and does not appear to give preference to one approach over the other. However, there may be situations where written consent is required by law or is considered best practice. For example, G.S. 90-21.5(a1) requires that a health care provider obtain “written consent” from a parent or legal guardian before administering a vaccine that is still under an emergency use authorization (EUA) to a minor.  Similarly, 42 C.F.R. 482.51, which applies to hospitals participating in Medicare, requires that a “properly executed informed consent form for the operation” be saved in a patient’s record prior to surgery, except in emergencies.

Let’s Stay in Touch

S.L. 2023-106, Part 3 is still very recent legislation and there will be questions about the law’s implementation that are unlikely to arise until health care practitioners and facilities begin to apply the new parental consent requirements on December 1, 2023. As the new law takes effect, please feel free to reach out to me at kirsten@sog.unc.edu with your questions or to share insights about what you are seeing on the ground.

Notes

[1] See, e.g., G.S. 7B-101(8). Compare with G.S. 35A-1202(7), (10).

[2] G.S. 108A-14(b)

[3] G.S. 7B-903(a)(6)

[4] G.S. 7B-903.1(e)

[5] G.S. 32A-29(3)

[6] See Fay A. Rozovsky, Consent to Treatment: A Practical Guide § 2.01[A] (5th ed., 2020)

[7] Id. See also G.S. 90-21.13 and the American Medical Association’s Code of Ethics, Opinion 2.1.1., available at: https://code-medical-ethics.ama-assn.org/ethics-opinions/informed-consent

[8] G.S. 12-3(10)

[9] Jackson v. A Woman’s Choice, Inc., 130 N.C. App. 590 (1998)

[10] In 2011, the “Woman’s Right to Know Act” established new consent requirements for patients of all ages (minors or adults) seeking an abortion. As a result, a handwritten note would not be acceptable documentation of consent for an abortion these days. See G.S. 90, Art. 1I.

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