By Kim Hathaway, MSN, CPHRM, CPHQ, Patient Safety Risk Manager, Department of Patient Safety and Risk Management at The Doctor’s Company
Identifying legal guardianship and the rights of parents can reduce risk prior to treating a minor.
Treatment of a child with parents involved in an acrimonious divorce can present a dentist with unique challenges. When only one parent accompanies a minor patient for dental care, the practice may not anticipate custody issues. Parental disputes may be revealed only after care has been rendered. For example, the other parent might demand a copy of the dental record, object to the care rendered, or refuse payment for services provided without his or her knowledge or consent.
Disputes also can arise when minor patients arrive at the practice with someone other than a parent. A child may attend a dental appointment alone or with a surrogate care provider, such as a stepparent, relative, family friend or older sibling. In any of these circumstances, a practice should always identify the person who can provide consent by proxy.
A father presented with his 5-year-old child and requested an evaluation to treat dental caries. The child previously had been evaluated by a dentist who recommended a treatment plan to include restoring teeth under IV sedation. The new dentist evaluated the child and advised that the restoration could be safely accomplished with oral sedation in two stages. The first stage was successfully completed and an appointment was made to complete the second stage. In the interim, the dentist received a letter from an attorney who represented the mother of the child and requested a deposition with the dentist. Conflict between the parents resulted in a decision that treatment for the child’s remaining dental restorations and method of sedation would be determined judicially. Because of the hostility and aggression from the mother’s attorney, the dentist was reluctant to provide future care for the child.
A 10-year-old child had been under the care of an orthodontist for several years and was in the middle of the course of treatment with full orthodontic appliances. After several missed appointments and payments, the office manager called the patient’s home to discuss the issues with a parent. The office manager was informed that the parents were in the process of a divorce and that the father was responsible for the bill. When the office manager called the father to request payment, the father responded that he would not pay for the orthodontic care. The subsequent options for the dental practice were to continue to provide care for the patient without payment, remove the orthodontic appliances prior to the completion of treatment or risk that the patient would not return for treatment.
An 11-year-old patient and her mother presented to the orthodontist with a complaint that the child’s teeth were crowded and crooked. The treatment plan was discussed with the mother, who signed the proposed plan during the visit. The orthodontist initiated phase one of the treatment, and monitored and managed the orthodontic appliances for several months. A surrogate care provider escorted the child to each office visit. As the development and eruption of the canine teeth progressed, it became necessary to extract the temporary canine teeth. The orthodontist discussed the extraction plan with the surrogate, and the practice called the patient’s mother, who provided permission for the extractions over the phone. Later, when the child’s permanent teeth had not yet appeared, her parents consulted with the orthodontist and expressed concern that the absence of canine teeth would negatively affect her appearance. The orthodontist explained that it might be a year before the teeth fully erupted. Upset by this response, the parents requested a copy of the dental record to present to their attorney. While preparing the record, the dentist realized that the surrogate care provider was the only person who had signed treatment consents. Further review of the dental record revealed that it did not contain documentation giving the surrogate the right to consent for treatment. A parental signature was limited to the treatment and financial plan.
These scenarios illustrate some of the situations that can be encountered when providing treatment to minor patients. Dentists need to understand the rights of parents and the complexities related to the legal consent of minor patients. Many risks can be mitigated through execution of a proper informed consent, and dentists should be familiar with consent laws in their state.
Risk Management Guidelines
The following strategies can help dentists recognize family situations when the individual holding legal consent is difficult to ascertain.
- Identify the individual who holds legal consent for the minor and document this in the dental record. If this isn’t a parent, find out who has the legal right to consent to treatment.
- If there is a question regarding custodial rights or minor consent, insist that the parents provide the legal document or court order.
- Review patient dental records to determine the existence of any documents that establish the status of a custodial parent or legal guardian (divorce decree, restraining orders, etc.) and request a letter from the attorney that describes your legal obligations. Update the information on a regular basis.
- Develop a “Conditions of Treatment” agreement for parents who are divorced or separating, consider including the following statements on your website, and execute the agreement prior to first visit:
- The dental care of your child is the first priority.
- Maintain an open dialogue regarding your child’s dental treatment.
- The custodial parent has financial responsibility for dental payments.
- Both of you are entitled to treatment information if you share joint custody.
- If one parent has exclusive medical decision-making authority, the parent must provide a copy of the court order to the dentist to include in the patient record.
- If you are not amicable, the dentist can terminate your child’s dental treatment.
- Require a written consent by proxy when an individual other than the custodial parent or legal guardian accompanies the child. Request updated information on an annual basis regarding individuals who are authorized to accompany the child during treatment visits.
- If permission or consent is obtained via telephone with a parent or legal guardian, document the communication.
The guidelines suggested here are not rules, do not constitute legal advice and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.