Between a Rock and a Hard Place: When Parents Refuse Treatment for their Children in the ED

By William M. McDonnell, MD, JD, Assistant Professor, Division of Pediatric Emergency Medicine, Adjunct Professor of Health Law, S.J. Quinney College of Law, University of Utah, Salt Lake City.


Not infrequently, parents are reluctant to proceed with medical treatment for their children in the emergency department (ED). When the treatment is clearly indicated, and when parental reluctance progresses to outright refusal, ED physicians are faced with difficult choices.

Informed consent rules limit the medical interventions that physicians can perform. The law recognizes a strong public interest in allowing parents to make reasonable medical decisions on behalf of their minor children. However, every state has enacted some form of mandatory child abuse and neglect reporting statute, which requires ED physicians to take action when a child is denied necessary medical care. Furthermore, all states have some mechanism for obtaining temporary custody of a child in order to provide necessary consent for medical treatment.

ED physicians often feel torn between their obligations to respect parental decisions regarding treatment, and their responsibilities to provide necessary medical care to children. These sometimes conflicting duties can present not only emotional conflict for the ED physician, but also the potential for legal liability. This article will explore the various competing legal principles at issue in these situations and will provide some guidance for ED physicians in these difficult cases.

Informed Consent

It is a well-established principle in American health law that medical personnel must obtain informed consent prior to performing medical procedures on a patient. To protect individuals' autonomy and prevent unwanted bodily contact, physicians must obtain the agreement of the patient prior to any physical contact.1

Failure to obtain such consent exposes physicians to tort claims for assault and battery. Some plaintiffs have used the theory of battery as a substitute for malpractice claims against physicians, arguing that the patient only consented to non-negligent medical touching. In most states, however, a claim of battery will only prevail when the consent is totally absent (or expressly refused) for a given examination or procedure. Nevertheless, even in jurisdictions where a cause of action for battery is limited, patients may have an independent legal claim for failure to obtain informed consent.

The courts have widely recognized that under certain emergency circumstances, an exception to the requirement of informed consent is available.2 When a patient is unconscious or is otherwise rendered incompetent to provide informed consent, and when a reasonable person would consent to medical care, the patient's consent may be implied from the circumstances. This exception is only available when time is of the essence, and no legally authorized patient representative is available. Under such circumstances, ED physicians are required by federal law to provide an appropriate examination and any necessary stabilizing treatment.3

On the other hand, consent cannot be implied when the patient has plainly indicated that he or she would refuse consent. The courts have been quite clear that when the patient has refused care, an emergency situation, even a life-threatening one, cannot override the patient's decision.4 For example, in Shine v. Vega, a patient with an acute asthma exacerbation sought care in an emergency department. After initial treatment with nebulized bronchodilators, the patient refused further treatment and attempted to leave the hospital. Against the patient's wishes, she was placed in restraints and ultimately intubated. The Massachusetts Supreme Court rejected the defense's argument that consent was not necessary because the patient had a life-threatening emergency, stating "the emergency treatment exception ... does not and cannot override the refusal of treatment by a patient who is capable of providing consent."5

Unlike competent adults, minor children do not have the legal capacity to provide informed consent for medical care. Instead, the capacity and responsibility for granting or denying consent lies with the parent or other legal guardian. The courts have long given great deference to parental decisions regarding medical treatment for their minor children. Parental rights "to make decisions concerning the care, custody, and control of their children," have been recognized by the U.S. Supreme Court as protected by the 14th Amendment to the U.S. Constitution.6

State Parens Patriae Power

Like all constitutionally protected rights, parents' rights to grant or deny consent for medical treatment are not absolute. Under the principle of parens patriae ("parent of the state"), the State is deemed to have an interest in the welfare of all of its citizens, including minor children.

In 1944, the U.S. Supreme Court declared that this State interest in protecting minors against imminent harm can overrule parental rights to raise their children as they see fit.7 Since that time, the principle of parens patriae has been applied in numerous circumstances. For example, in Schmidt v. Mutual Hospital Services, Inc., an infant was born to parents whose religious beliefs rejected all medical care. When the parents refused to pay medical bills for the infant's care, the Indiana Court of Appeals noted that "although an adult generally cannot be forced to undergo medical treatment against his religious principles, a parent's decision to refuse lifesaving medical treatment for a minor child must yield to the State's interest in protecting the health and welfare of the child."8

In Guardianship of L.S. and H.S., the Nevada Supreme Court upheld the State's right to appoint a temporary guardian to consent to medically-necessary blood transfusions, despite the parents' religious objections.9 In In Re K.I., B.I., and D.M., the District of Columbia Court of Appeals held that a lower court properly exercised its parens patriae power, in the best interests of the child, to enter a "do not resuscitate" order for a neurologically devastated child over the objections of one parent.10 In Matter of Cabrera, the Superior Court of Pennsylvania appointed a guardian to consent to medical treatment reducing a high risk of debilitating stroke in a patient with sickle cell disease, despite the objections of her parents.11

Parens patriae is applied as a matter of state law, and thus varies from state to state in the circumstances under which it will be applied.

Physicians must remember that parens patriae is a mechanism for the State, not the individual physician or hospital, to override parental rights and provide substituted consent. The physician who overrides the parents' wishes, in the absence of substituted consent from the State, may be providing medical care in violation of the consent requirement, and may be liable for violating battery and informed consent laws.12

In truly life-threatening circumstances, however, some courts have allowed physicians to briefly provide life-sustaining emergent care to children over the objections of parents while state intervention is sought.13

Reporting Requirements

In order to ensure that the state's interest in the welfare of its child citizens is protected, all states have enacted some form of mandatory reporting statute for abuse and neglect of children. Although these statutes typically do not call on medical personnel to conduct independent investigations of possible abuse or neglect, they clearly require that physicians make timely reports to designated law enforcement and/or social services officials when the physician has reasonable cause to suspect abuse or neglect.

These state laws have variable definitions of abuse and neglect, but generally include actions and omissions that endanger a child's health or well being. Failure to obtain necessary medical care for a child, and to provide consent for such care, generally constitutes abuse and neglect under these statutes.

Physicians are not called upon by these statutes to determine in fact whether abuse and neglect have occurred, but rather are required to report reasonable suspicions of abuse and neglect. Failure to report these suspicions generally carries criminal penalties for the physician under the state reporting statutes.

The Dilemma

The combination of informed consent requirements, parental rights, and mandatory reporting requirements, as well as ethical obligations to provide the best and most appropriate care to patients, has placed ED physicians in a difficult position. The physician must report suspected abuse and neglect, yet generally cannot provide medical care over parental objections until the State intervenes. When making a report of suspected medical neglect based on refusal of treatment, physicians must be careful to provide accurate information to State officials, and not allow any bias to color that report.

In Mueller v. Auker, a 5-week-old infant with fever was brought to the ED by her mother, who consented to blood and urine tests, but refused a lumbar puncture and intravenous antibiotics.14 Concerned that the parental refusal of consent placed the infant in imminent danger, the ED physician contacted State officials who took custody of the patient for purposes of consenting to medical care. The parents later sued the ED physician, alleging that he conspired to deprive them of their constitutional rights by knowingly exaggerating the medical risks to the child. The Court allowed the case to proceed, noting that the state reporting statute would provide immunity to the physician if he made a good faith report of suspected medical neglect, but would not protect knowingly false estimates of risk. The case is currently pending.

Limit Liability Risks

To limit their potential liability when parents refuse medical care for their children in the ED, physicians should consider the following measures.

  • Fully disclose your medical concerns to parents, discuss their concerns and objections, and attempt to provide them with diagnostic and treatment options that meet the child's medical needs as well as the parents' concerns. For example, in some cases blood and urine cultures and hospital admission for a febrile infant might be an acceptable alternative to lumbar puncture and intravenous antibiotics.
  • If the family has an established relationship with a primary care provider, it may be appropriate to involve that physician in difficult discussions.
  • Be prepared. Know your state's abuse and neglect reporting requirements. Time may be critical, so establish a procedure in advance for notifying the appropriate state officials, and determine whether reporting will be done by the ED physician, hospital social workers, or hospital administrators.
  • Promptly involve state authorities when indicated, and do not proceed with medical care over parental objections until authorized to do so by the appropriate governmental authorities. If absolutely necessary to preserve life, it may be appropriate to provide care until state authorities can be notified.
  • Be careful to provide state authorities and family members with accurate information. If you are estimating risks or benefits, make it clear that you are estimating. If you don't know a particular fact or statistic, disclose that you don't know that fact or statistic, and attempt to obtain the needed information from reliable resources such as medical literature and consultant services.
  • Document communications, thought processes, and treatment authorization from parents or governmental authorities.


The sometimes contradictory obligations of providing appropriate emergency care to children and respecting their parents' right to informed consent may place ED physicians in a difficult situation. The best resolution would be an agreement by all parties, reached through full disclosure, good communication, and consideration of all reasonable options. However, when a reasonable agreement cannot be negotiated, advance planning and careful compliance with reporting and informed consent rules will best protect the ill or injured child, as well as the ED physician.


1. Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y.App. 1914) ("Every human being of adult years and sound mind has a right to determine what shall be done with his own body.")

2. Barry R. Furrow, et al. Health Law. Westlaw: St. Paul, Mn.; 2000:334-335; Meisel A. The "Exceptions" to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Decision-making. Wisconsin Law Review 1979:413, 434-438.

3. Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd; see Mark M. Moy. The EMTALA Answer Book. 3rd ed. Aspen: New York, NY; 2001. ("A request for treatment ... may be inferred by mere presentation [to the ED].")

4. See, e.g., Shine v. Vega, 709 N.E.2d 58 (Mass. 1999); Miller v. Rhode Island Hosp., 625 A.2d 778 (R.I. 1993).

5. 709 N.E.2d at 64.

6. Troxel v. Granville, 530 U.S. 57 (2000).

7. Prince v. Massachusetts, 321 U.S. 158 (1944).

8. 832 N.E.2d 977, 982 (Ind. App. 2005).

9. Guardianship of L.S. and H.S., 87 P.3d 521 (Nev. 2004).

10. 735 A.2d 448 (D.C. App. 1999).

11. 552 A.2d 1114 (Pa. Super. 1989).

12. Schmidt, 832 N.E.2d at 983.

13. Miller v. HCA, 118 S.W.3d 758 (Tex. 2003).

14. No. CV-04-399-S-BLW, 2007 WL 627620 (D. Idaho Feb. 26, 2007).