Key Messages
- Consent for minors needs to be obtained from a parent or guardian.
- Minors should be included in the consent discussion to the level they are able to participate.
- You need to be aware of who can and can’t provide consent for your client.
- “Mature minors” may be able to consent to their own personal physiotherapy care, but you need to evaluate their capacity to consent to the proposed physiotherapy services.
Obtaining informed consent is a process that involves several steps that must be completed correctly. Adding in a young client who is potentially unable to fully understand their illness or injury, diagnosis, treatment plan, risks, etc. creates another level of complexity as they may require someone to provide consent for care on their behalf.1 Or you may have a teenage client who is nearing adulthood and can potentially start making medical decisions on their own. However, uncertainty regarding the client’s ability to truly understand the risk involved with a course of treatment can lead to the physiotherapist questioning if the consent obtained is truly valid informed consent.
The goal of this article is to highlight the consent process in minors and mature minors and focus on the differences you may encounter when gaining consent from parents, guardians, and mature minors. The newly published Consent Guide should be a valuable resource for the majority of your questions about consent. This article will follow Eva’s physiotherapy and consent journey from her time in physiotherapy as a child and then as she reaches her teenage years.
What are the basics when it comes to consent?
For consent to be valid it must be:
- Given voluntarily;
- Given by a client who has capacity;
- Specific to the treatment and to the person who is to administer the treatment; and
- Given by a client who is informed.
What is the definition of a minor?
“It is generally assumed that an individual who is under age 18 is not able to provide consent, and that consent must be obtained from the minor patient’s legal guardian.”2
Eva is a 9-year-old gymnast who hyperextended her knee in practice the other day. She comes to the clinic with her dad, who fills out the intake forms and provides all relevant health and financial information to the clinic. You take Eva and her dad to the treatment room and begin the discussion on what physiotherapy is, outline what the assessment will look like, and give them time to ask questions. Eva asks some questions and participates in the discussion. As you take Eva and her dad through this process you take notes about the information you provide as well as the questions they are asking, and you make sure to document that you got verbal consent from her dad. When you take Eva through the objective assessment you are talking to both Eva and her dad ensuring that they both understand what is happening through the assessment and keeping Eva in the conversation. When it comes to some tests that you know might reproduce Eva’s pain you warn her of what might happen and ask if that’s ok. She quickly talks to her dad and agrees; then you confirm with her dad that he is giving consent for you to proceed with the test that may reproduce Eva’s symptoms. After the initial session is over you go back to complete your chart note and clarify some of the details around consent such as who provided consent, that it was verbal, and that the discussion included the nature of the risks involved in what they were consenting to.
What changes about consent when it is regarding a minor?
As we saw in the above scenario, at 9 years old, Eva is able to understand some of what the physiotherapist is telling her. However, the main consideration is that a minor typically lacks the capacity to give consent as they do not have the ability to understand and consider the information being provided to them during the physiotherapy assessment and subsequent treatment. They may also not understand and consider the implications of agreeing to or refusing the proposed physiotherapy service. Even though Eva had some understanding of what was happening, the physiotherapist was not sure Eva understood the potential risks of the assessment and intervention along with the long-term effects of the decisions being made. Eva clearly relied on her dad to help with the decision-making. The minor should always be included in the consent process as much as they can participate, but the parent or guardian is the one who makes the decisions regarding the care of the minor.
What about a legal guardian?
A legal guardian is someone who has legal responsibility for a child’s well-being. In Eva’s case, it is reasonable for the physiotherapist to assume that her dad is her legal guardian and is able to provide consent to the assessment and treatments provided. If the situation was different and Eva came with an adult who was unfamiliar to the physiotherapist, or the relationship was unclear, the physiotherapist should ask if the adult is Eva’s legal guardian and therefore able to provide consent for Eva’s physiotherapy services. Sometimes you may have to ask for proof of guardianship if it is not clear. For example in cases of foster care, step-parents, and parental divorce, clarification may be needed.
What happens if Eva shows up without a parent?
6 weeks have gone by, and Eva is doing much better. You have been working on improving her stability with landing off various box heights and have been doing some manual therapy with her as well to get her knee moving better. Her dad has been attending regularly with Eva and has consented to an overall plan of care which you expect will continue over the next several treatment visits. She shows up today and says that her dad just dropped her off today for physio as he had a meeting and will be back in 45 minutes to pick her up.
Eva’s dad took her to physiotherapy and has been present at all of the other sessions thus far. The treatment plan today is consistent with the agreed-upon plan of care with no major changes as Eva is ramping up her tolerance to landing and plyometric work. When you ask Eva some questions, she indicates everything is going well. Her reports of pain are minimal and she has tolerated her physiotherapy so far with no issues. In this case, you can continue to provide care for Eva as her dad has previously consented to the plan of care and there are no changes in Eva’s condition that would warrant a change in the treatment plan. Consent documentation in this instance would include that the parent dropped Eva off, and Eva participated in the treatment as planned and previously consented to by her dad.
If Eva came in with several changes in her symptoms or you had planned to alter her treatment plan, this may cause some issues. If Eva’s condition had changed, you would need to reassess and alter the treatment plan to accommodate those changes. If you had hoped to increase the demands placed on Eva and her knee you would also have to wait to make those changes until you obtained consent from her dad.
In a situation like this, it would be necessary to discuss the changes to Eva’s condition or treatment plan and any concerns with the parent. You would then document the consent provided and how it was obtained as well as other relevant details. If you could not reach Eva’s guardian your options would be to provide treatment to Eva that has already been consented to or delay the appointment until you were able to gain consent in an appropriate manner.
What about parents who are divorced, or custody of the minor has been changed?
Eva’s parents are divorced, and her mom has been living in New Brunswick for several years. The two parents share custody of Eva even though the mom is less involved in Eva’s day-to-day life. Eva’s mom phones you to check in on Eva’s care and prognosis. Since Eva’s mom is still her guardian and has shared custody of Eva, she is entitled to information about what’s happening and is legally able to provide consent for physiotherapy services.
There are no restrictions to what you can disclose to Eva’s mom about her child’s physiotherapy care. If there is conflict between the two parents or poor communication between the parents, there could be issues with ensuring both parents are aware of the plan of care and in agreement on a course of action. In some instances, this can be challenging as you may have to build positive therapeutic relationships with both parents separately. Keep in mind that legal guardians are required to always act in the best interest of the minor. One parent does not have the authority to overrule the other parent’s consent for treatment that is in Eva’s best interests.
What if Eva’s dad has sole custody?
If Eva’s dad has sole custody, he would also be her sole guardian. It is important to confirm this prior to speaking with Eva’s mom. However, even if the dad has sole custody, the mom (as a non-custodial parent) has the right to make inquiries and receive information about Eva’s health and well-being, but they are unable to consent to any part of Eva’s care.
What if Eva does not have a parent around to make a medical decision?
Eva is now 14 years old and is competing at a national event with no parents present, but her coach is there with her. During her floor routine Eva stumbles and dislocates her patella. The onsite physiotherapist is asking permission to provide treatment to Eva, but the coach is unable to reach either of her parents. The physiotherapist is wondering if the coach can step in to make decisions about her medical care.
In urgent care situations like this, there are several factors that come together as the physiotherapist weighs the decision around providing care and if consent can be given by the coach.
There may be documentation (Child Medical Consent Form) the coach and program have on hand in which Eva’s legal guardian has granted the coach the ability to provide consent for Eva’s treatment so the medical team can initiate care.
If no plan has been put in place, then the physiotherapist could consider accepting consent from Eva. Eva might be able to provide valid consent to urgent care, but she is still very young and may not have the capacity to fully understand the risks, benefits, and implications of the consent discussion. The physiotherapist could discuss the injury and proposed treatment plan with both the coach and Eva to gauge Eva’s capacity to provide valid, informed consent.
Finally, the physiotherapist could consider providing urgent treatment without direct parental consent. These decisions should not be made lightly. However, if the physiotherapist is working in the best interests of the client to provide evidence-based best practice care intended to prevent serious harm or alleviate severe pain, then it could be reasonable to provide urgent care with Eva’s agreement.
What needs to occur to establish capacity for a mature minor?
Let’s fast forward a couple of years to a 16-year-old Eva. She has continued to compete at a high level in gymnastics but is struggling with an ongoing knee issue. She arrives in the clinic alone for her assessment, completes all of the intake paperwork herself, and is waiting in the treatment room for you when you enter. Can Eva provide consent for her own physiotherapy care? It depends.
The client needs to be able to understand:
- the assessment process;
- what the treatment plan;
- what the risks and benefits of the treatment are;
- what the risks of not receiving treatment would be;
- and the consequences of their decisions.
It would be important for you to document how you determined that the minor was ‘mature’ and able to provide their own consent and then record the consent provided along with the relevant details of the consent process you went through. The relevant risks associated with an assessment or treatment technique should always be considered when getting consent from a client regardless of age.
What if the treatment requires a technique that has more risk involved?
The riskier the treatment the higher the bar for ensuring the minor has the capacity to provide valid informed consent. For example, Eva’s calf and quad are quite tight and you think that dry needling would be an appropriate treatment option. The risk of the intervention is greater than that of treatments you have used previously with Eva. Due to the relevant risk, you may wish to reconsider using dry needling as a treatment or reconsider treating Eva as a mature minor.
If you do opt to treat Eva as a mature minor and provide dry needling, you will want to consider setting aside extra time to explain the potential risks related to the treatment as well as extra time for Eva to ask questions to make sure she fully understands the details. While a long-standing therapeutic relationship provides you with considerable insight into Eva’s maturity and capacity to provide consent, you need to be cautious due to the risks of treatment, and careful to avoid coercing her into dry needling.
There are lots of grey areas about who can provide consent with minor patients and there is no clear test to determine if a minor has the capacity to provide consent and can be considered a mature minor. It is up to the physiotherapist to take a holistic approach to evaluating the client and their maturity level. The Consent Guide goes into more detail about how to evaluate your client, but, in the end, it comes down to the physiotherapist’s professional judgment as they go through the consent process.
Actionable Items
- Review your consent process within your practice setting.
- Establish clear guidelines for intake and consent with minors.
- Establish a process to verify guardianship of a client who is a minor.
- Create easy communication pathways with peer physiotherapists, senior staff, or leadership to discuss whether or not a client could be considered a mature minor.
- Create communication plans with the legal guardian(s) regarding developing and updating plans of care and processes for obtaining consent required to alter the plan.
- Balance your conversation with a minor and their guardian who is present at the appointment. Building a positive therapeutic relationship with all involved parties is important.
References:
- Tomkins, B. Health Care for Minors: The Right to Consent, Saskatchewan Law Review 41, 1974 CanLIIDocs 241, Available at https://canlii.ca/t/7n3j7 Accessed January 31, 2024
- College of Physiotherapists of Alberta Consent Guide. Available at https://www.cpta.ab.ca/for-physiotherapists/resources/guides-and-guidelines/consent-guide/
