DFCS Online Policies & Procedures

  DFCS Online Policies & Procedures

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Handbook 15:  Health Care
15-2  Medical Consent
Health Care
15-2  Medical Consent
Reference Points
Overview
When a Child Requires Emergency Medical Care
Standing Order Regarding Medical Issues
When a Parent Is Not Permitted to Consent to Medical Treatment
When a Legal Guardian May Not Consent to Medical Treatment
Getting Consent for Routine Medical Care
Getting Court Authorization for Non-Emergency Surgery for a Child
When an Out-of-Home Caregiver May Consent to Medical Treatment
When a Child May Consent to Medical Treatment
When Only the Court May Authorize Medical Treatment
HIPAA - Health Insurance Portability and Accountability Act
HIV Testing
Rule of Court Regarding Children in Temporary Custody or Court Dependents
Other References


Reference Points
Effective Date: TBA
Last Updated: 11/2/07
 Legal Basis:
Popup Window Welfare and Institutions Code (WIC) § 369(a) and 369.5(a)
Popup Window WIC § 5150
Popup Window WIC § 6002.20
Popup Window WIC § 5326.6 and 5326.8
Popup Window Health & Safety Code (H&S) § 1530.6
Popup Window Probate Code § 2353
Popup Window Family Code § 6920, 6921, 6922
PDF California Minor Consent Rules for Adolescent Health Care
Popup Window Santa Clara County Local Rules of Court - K
PDF Standing Court Order for Ordinary Medical, Mental Health and Dental Treatment for Dependent Children in Temporary and Out-of-Home Placement - 10/03/01
 Non CWS/CMS Forms:
MS Word Authorization for Medical Care (SC 1031c)
MS Word Notice of Ex Parte Application (SCZ 170)
doc Attachment to Notice (SCZ170a)
 CWS/CMS Forms:
bullet Services Management Section: Contact Notebook


Overview   The issue of medical consent frequently arises in the course of providing services to children. The question as to who is authorized to provide consent depends on the age and maturity of the child, the child’s legal status, the nature of the medical treatment sought and/or the availability of the child's parents.

In general, a child’s parent or legal guardian has the legal authority to consent to medical and psychiatric treatment for the child.  However, there exists many exceptions to this principle. In some cases, the social worker or the child may consent in lieu of the parent and, in some instances, only the court may consent.

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When a Child Requires Emergency Medical Care   See OPP Chapter 13-6: Emergency Medical Orders .
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When a Parent May Not Consent to Medical Treatment  

A parent whose parental rights have not been terminated by the Juvenile Court may, in most instances, consent to medical treatment of his/her child.   However, a parent may not consent to:

  1. An abortion over the objection of the pregnant child.

  2. Administration of psychotropic drugs when:
    • The child is a dependent of the juvenile court, and the child is in out-of-home placement. The court has sole authority to make orders regarding the administration of psychotropic medications for children in out of home care.
  3. Non-emergency psychiatric hospitalization when the child objects.
    • In this case, the child may request an independent review of the need for his or her hospitalization. If the independent reviewer deems the hospitalization unnecessary, the hospital must release the child to the parent regardless of the wishes of the parent. (WIC 6002.20)

  4. Convulsant therapy (i.e. electrically or chemically induced therapeutic seizure)
    • In no case shall convulsant therapy be used on a child under 12 years of age.  (WIC § 5326)

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When a Legal Guardian May Not Consent to Medical Treatment   Probate Code Section § 2353 provides that a legal guardian, whether appointed by the Juvenile Court or Probate Court, may consent to the same medical and dental procedures as the parent and may be subject to the same limitations as a parent with the following exceptions:
  1. If the letters of guardianship limit this right in any way.

  2. If surgery is recommended, the legal guardian may consent if the child is under the age of 14.
    • If the child is 14 years of age or older, the legal guardian may consent to surgery but the child must also consent unless the legal guardian determines in good faith, based on medical advice, that the case is an emergency in which the child faces loss of life or serious bodily injury if the surgery is not performed.
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Getting Consent from Parents or the Court for Routine Care  

The Authorization for Medical Care (SC1031c) is used to document consent by the parents/guardians or the Court for the routine medical care of children.  The social worker always attempts to have the parent or guardian sign the form.  If the parent or guardian is unavailable or objects to signing the form, court consent is not necessary for routine medical treatment covered under Santa Clara County Local Rule of Court: K

 
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Getting Court Authorization for Non-Emergency Surgery for a Child  

If the parent or guardian is unavailable or objects to a non-emergency surgical procedure deemed necessary by a physician, court authorization is required.  In some circumstances the hospital or physician may require the Juvenile Court's authorization even when the parent consents because the child is a dependent child of the court.

To request court consent for non-emergency surgery, the social worker:

  • Has the physician sign a statement that includes information about:
    • The type of surgery
    • Why it is needed
    • Whether general or local anesthetic will be used
    • Any possible risks from the surgery or procedure

  • Obtains a blank copy of the physician's or hospital's own consent form.
  • Completes:
    • Social Worker's Report with the information about the need for the surgery and a recommendation for court authorization for the surgery.
    • Notice of Ex Parte Application (SCZ 170)
    • Attachment to Notice (SCZ170a)

  • Submits for processing the report with forms attached to the County Counsel Court Assistant who appears in the court department where the hearing is generally scheduled. 

     

    The Court will either sign the authorization or schedule a hearing.

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When an Out-of-Home Caregiver May Consent to Medical Treatment   Foster parents and relative caregivers may provide consent for ordinary and routine medical and dental care for children placed in their homes.  When routine medical and dental care such as immunizations, physical examinations, treatment of common illnesses, emergency hospitalization or x-rays are required, the out -of-home caregiver’s right to consent to routine care is conferred upon him or her by written permission from either a parent/guardian via the Authorization for Medical Care (SC1031c) or by court authorization of Health and Safety Code (H&S) 1530.6.

If the parent will not or cannot give this permission to the foster parent or relative or NREFM caregiver by signing the Authorization for Medical Care (SC 1031c), the out of home caregiver, as well as the social worker, has the authority to consent to routine medical treatment under provisions of the Standing Court Order.  Under no circumstances may the out-of-home caregiver or social worker consent to any form of medical treatment beyond routine care.

At the time of a child's admission to the Children's Shelter, or temporary placement in an Emergency Satellite Home or a relative or NREFM home, all reasonable efforts should be made to obtain the consent of the parent or legal guardian for non-routine medical care while the juvenile is temporarily detained or placed out-of-home.  In the event said consent cannot be obtained (e.g., parent or guardian is not available to give consent), the social worker requests a Court order for any non-routine health care.

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When a Child May Consent to Medical Treatment  

See California Minor Consent Rules for Adolescent Health Care.

Family Code Sections 6920 et.seq. provide that a child may consent to the minor's own medical care or dental care, and parental consent is not required, if:

  1. The child is 15 years of age or older, is living separate and apart from the parents or guardian and is managing his or her own financial affairs.

  2. Mental health or counseling services is needed and the child is at least 12 years of age.
    • These services must be provided by a licensed professional and those under their supervision including interns under their supervision) and may be provided either in a licensed residential shelter or in an outpatient setting. The services may include psychological testing. The child must meet two additional requirements in order to give consent:
    • The youth, in the opinion of the treating professional, is mature enough to participate intelligently in the outpatient or residential care services, and
    • The youth would present a danger of serious physical or mental harm to him/herself or others without the mental health treatment or counseling or is the alleged victim of incest or child abuse.
    • The child may not consent to convulsant therapy, psychosurgery or psychotropic drugs. However, a child age 12 years or older who is not gravely disabled pursuant to Welfare and Institutions Code 5150 may object to psychotropic medication.


  3. A minor who is 12 years of age or older and who may have come into contact with an infectious, contagious, or communicable disease may consent to medical care related to the diagnosis or treatment of the disease, if the disease or condition is one that is required by law or regulation adopted pursuant to law to be reported to the local health officer, or is a related sexually transmitted disease, as may be determined by the State Director of Health Services. (Family Code 6926)
     
  4. A minor who is 12 years of age or older and who is alleged to have been raped may consent to medical care related to the diagnosis or treatment of the condition.
    • The treatment plan of a minor authorized by this section shall include the involvement of the minor's parent or guardian, if appropriate, as determined by the professional person or treatment facility treating the minor.
  5.  
  6. The child of any age may consent to medical care related to the prevention or treatment of pregnancy.
    • This section does not authorize a minor:

    (1) To be sterilized without the consent of the minor's parent or guardian.


  7. The child is 12 years of age or older and medical care and counseling relating to the diagnosis and treatment of a drug or alcohol-related problem is sought.
    • The child may not consent to narcotic replacement therapy, such as methadone maintenance.
    • The treatment plan of a minor authorized by this section shall include the involvement of the minor's parent or guardian, if appropriate, as determined by the professional person or treatment facility treating the minor.
  8.  
  9. The child is 17 years of age or older and wishes to donate blood. If the child is 15 or 16 years old, (s)he may consent to blood donation only with the written authorization of the parents and a physician. (Health and Safety Code 1607.5)

  10. HIV testing if the child is 12 years of age or older. The child is also permitted to disclose results, or prohibit disclosure, of the testing and to provide written authorization for disclosure if that is the child’s wish. (Health and Safety Code 121020);(Civil Code Section 34.7).
    • The child may be asked by the medical care provider to consent to testing and/or disclosure only when the provider has determined that the child has the requisite ability to provide informed consent.
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When Only the Court May Authorize Medical Treatment   The court is the only authority to order medical treatment for a minor when the minor has been adjudged a dependent of the court and:
  • Administration of psychotropic medication is recommended and the child is in out of home placement. (Welfare and Institutions Code 369.5)
  • A medical or psychological procedure is recommended for the minor to which the parent objects or is not available to consent and to which neither the child nor the social worker has the statutory authority to consent.

To request authorization for medical treatment from the court the social worker submits an Application and Order.  The social worker asks the child’s physician to complete a report specifying the child’s diagnosis, recommended treatment, and the risk involved in said treatment. This report should be attached to the Application and Order when it is submitted to Court by the social worker for the purpose of requesting authorization for the treatment.

At the time of a child's admission to the Children's Shelter or temporary placement in a relative or NREFM home, all reasonable efforts should be made to obtain the consent of the parent or legal guardian for non-routine medical care while the juvenile is temporarily detained or placed out-of-home.  In the event said consent cannot be obtained (e.g., parent or guardian is not available to give consent), the social worker requests a Court order for any non-routine health care.

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HIPAA  

The Health Insurance Portability and Accountability Act (HIPAA) was enacted by the U.S. Congress in 1996.   HIPAA addresses the security and privacy of health data. The HIPPA Privacy Rule gives an individual rights over their health information and sets rules and limits on who can look at and receive the individual's health information. The Privacy Rule applies to all forms of an individual's protected health information, whether electronic, written, or oral.

Health information cannot be shared, except in very limited ways, unless permission is given by signing an authorization form. The authorization form presented for signature by a patient must indicate who will get the health information and for what the information will be used. 

Children in out-of-home placement are included under HIPAA.   If a social worker or caregiver signs for routine medical care of a child under the Standing Court Order and Safety Code 1503.6, the social worker or caregiver may also sign the HIPAA authorization form on behalf of the child. The HIPAA Privacy Rule does not provide rights for children to be treated without parental consent or legal authorization. The Rule addresses access to, and disclosure of, health information, not the underlying treatment.


Your Health Information Privacy Rights

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HIV Testing   HIV testing can be authorized by the parent(s) or legal guardian; the child to be tested (if (s)he is age 12 years or older); or by the court. In the absence of parental consent, a court order must be obtained for a child under the age of 12. Youth 12 years and older may authorize their own testing. Out-of-home caregivers may not authorize HIV testing.
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Rule of Court Regarding Children in Temporary Custody or Court Dependents  

Santa Clara County Local Rule of Court: K, permits children who are:

  • Temporarily detained at the Children's Shelter,
  • Temporarily detained in an Emergency Satellite Home placement,
  • Dependent children in Court-ordered placement, and
  • Children who are the subject of a section 300 petition and who are temporarily placed with relatives or non-relative extended family members.

to undergo:

  • A comprehensive health assessment and physical examination.

  • Any clinical laboratory tests and limited, non-intrusive diagnostic tests such as blood tests, x-rays and CAT scans, etc. the physician determines are necessary for the evaluation of the juvenile’s health status.
  •  
  • Upon consent of the child, a screening for venereal disease.
    • Contraceptive devices may be furnished to any juvenile upon the minor’s request.

  • Any standard childhood immunizations recommended by the American Academy of Pediatrics necessary to bring a child’s immunizations up-to-date.  This include the HPV vaccine.
    • However, no immunizations shall be administered before:
      • (1) making a reasonable attempt to obtain parental consent;
      • (2) checking the county immunization registry;
      • (3) contacting the child’s personal pediatrician; and
      • (4) if the child is of school age, contacting the child’s school for immunization records.
    • If a parent objects to the child receiving immunizations, then no immunizations shall be administered without a Court order. Further, if no parent is available to give consent, then no immunization may be given until the above conditions have been met and seven days have elapsed since the child’s admission to custody.

  • Any routine medical care required based on the results of the comprehensive health assessment, and any routine medical care required for the care of illnesses and injury, including the use of standard X-rays, stitches for cuts and casts for broken bones.
    • Routine medical care as referred to above includes:
      • First aid care for conditions which require immediate assistance from a person trained in basic first aid as defined by the American Red Cross or its equivalent;
      • Clinic care for ambulatory juveniles with health care complaints which are evaluated and treated at sick call or by special appointment; and
      • Inpatient bed care for illness or injury which requires limited observation and/or management and does not require admission to a licensed hospital.
    • Routine medical care does not include blood transfusions or inpatient care for illness or diagnosis which requires optimal observation and/or management in a licensed hospital.

  • A mental health status evaluation and necessary mental health services except no placement in an inpatient psychiatric facility shall occur without compliance with Welfare and Institutions Code Sections 319.1, 635.1 and 5150, et seq.
    • A dental assessment, including X-rays when appropriate, and any routine dental treatment required based on the results of the dental assessment.

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Other References  
bullet2 OPP Chapter 13-6: Emergency Medical Orders
PDF Mandatory Disease Reporting Guidelines
bullet2 OPP Chapter 13-7.1: Psychotropic Medication
Popup Window2 Teen Health Rights
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