All dentists should be aware that as a general rule, an unemancipated minor’s consent to treatment is not valid. The consent of a parent or legal guardian must be obtained before treatment is rendered. Unfortunately, many dentists still provide “routine” dental treatment to their minor patients without obtaining informed consent from the parent or legal guardian of a minor child.
The informed consent process should be a complete and thorough discussion between the dentist and the patient – and the parent of a minor child – as to what procedures will be taking place, including, but not limited to, extractions, root canals, crown and bridge, implants, and incision and drainage. A written informed consent form should be obtained before treatment starts, including any procedure involving flap reflection, cosmetic dentistry, TMD treatment, orthodontics and IV sedation or general anesthesia.
The informed consent process should include a discussion between the dentist (not just a staff member) and the patient about the nature of the treatment, potential risks and complications, likely benefits, prognosis, alternatives (including referral to a specialist when appropriate), timing and estimated fees.
The informed consent process does not necessarily have to be as detailed for routine diagnostic and treatment measures. However, the patient must be advised about all of the treatment and diagnostic procedures with respect to the proposed dental care, including what is to be done and why. The patient does have a right to refuse even the most routine treatment.
In the case of an unemancipated minor child who is unaccompanied by a parent or legal guardian to your office, you should take a few steps to minimize a potential conflict and reduce your liability exposure.
First, make a professional judgment as to whether any delay in treatment will likely be detrimental to the minor patient’s dental or systemic health. Ask yourself whether it is in the patient’s best interest to proceed with the treatment immediately, or whether treatment can wait until a parent or legal guardian can be contacted.
Next, make a reasonable effort to contact the parent or legal guardian. The patients chart should be updated with cell phone numbers.
A patient’s dental record should contain detailed documentation regarding all of the times you attempted to contact the patient’s parent or legal guardian.
However, if you cannot reach a parent or guardian, it may be prudent to defer routine treatment unless an emergency exists, until you can obtain a parent or guardian’s informed consent.
The verbal consent or signature on a consent form from the parents of a minor child should be sufficient. However, it is essential that the parent granting consent is legally authorized to do so. Divorces can often be highly contentious, to the point where some divorce decrees have stipulated that a non-custodial parent cannot make medical decisions. If a parent has no parental rights, then that parent is precluded from granting consent on behalf of his or her minor child.
If an unaccompanied minor child comes for an appointment for simple or routine treatment that has already been discussed and consented to by the parent or guardian, it should be permissible to proceed with treatment. However, be very careful that you do not perform any treatment whatsoever outside of the prior consent.
Finally, I would suggest that all adult patients and parents or guardians of all minor children be required to sign an “Admission to the Practice Agreement.” This document provides for, among other things, the consent of the patient (or the patient’s parent or legal guardian) to routine dental procedures, as well as treatment and diagnostic tests, including x-rays, that are deemed necessary in the dentist’s professional judgment. If a conflict arises later, the signature of the parent or legal guardian on such a document will, at a minimum, demonstrate that implied consent was granted by the parent or legal guardian for routine dental procedures for the minor patient.
Author(s)
Stuart J. Oberman, Esq.
Stuart J. Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 30 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company.
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