Archive for category: Consent

Consent for Treatment of Minors in Idaho

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By Kim Stanger

In Idaho, persons under the age of 18 (“minors”) may consent to their own healthcare in only limited circumstances.1

General Rule: Obtain Consent from Parent or Surrogate Decision Maker. Idaho Code § 39‑4503 sets forth the general standard for determining whether a person is competent to consent to their own healthcare:

Any person … who comprehends the need for, the nature of and the significant risks ordinarily inherent in any contemplated health care services is competent to consent thereto on his or her own behalf.

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Minors’ Ability to Consent to Medical Treatment Under Utah Law

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By Kristy M. Kimball

Medical providers are sometimes faced with the difficult scenario of a minor (under 18 years of age) requesting medical or mental health treatment without a parent’s or legal guardian’s consent. This situation often arises in the context of sexually active minors who wish to obtain contraceptives available only through a medical provider (e.g., prescription birth control, IUD, etc.). When facing such scenarios, Utah providers need to be aware of relevant laws and carefully consider other implications. Read more

Producing Records of Other Providers

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by Kim Stanger

There is a common misunderstanding that healthcare providers may not or should not produce medical records that were created by another healthcare provider.

Under HIPAA, patients have a right to access all records that a provider maintains in a designated record set, i.e., documents the provider uses to make decisions about a patient’s healthcare or payment for healthcare. (45 CFR 164.524). This would generally include records the provider obtains or receives from other providers relating to the patient’s care. Thus, providers generally must produce such records in response to the patient’s request; failure to do so would violate HIPAA. The OCR published the following FAQ relevant to this issue:

A provider might have a patient’s medical record that contains older portions of a medical record that were created by another previous provider. Will the HIPAA Privacy Rule permit a provider who is a covered entity to disclose a complete medical record even though portions of the record were created by other providers?

Answer: Yes, the Privacy Rule permits a provider who is a covered entity to disclose a complete medical record including portions that were created by another provider, assuming that the disclosure is for a purpose permitted by the Privacy Rule, such as treatment. Read more

Consent Forms v. Informed Consent

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By Kim Stanger

Except in emergencies, healthcare practitioners must generally obtain the patient’s informed consent before providing treatment.1 If the patient lacks capacity due to age or incompetence, consent must be obtained from a personal representative authorized by law to provide consent.2 Failure to obtain or properly document informed consent may subject practitioners to civil, administrative, and/or criminal liability. It is therefore important to periodically review consent processes and forms to ensure that they adequately establish and document valid informed consent. Read more

Who May Consent to Health Care under Idaho Law?

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by Kim Stanger, Holland & Hart LLP

I am frequently asked how an Idaho health care provider may determine whether a person is competent to consent to their own healthcare.  Idaho Code § 39-4503 establishes the general standard for medical consents:

Persons who may consent to their own care. Any person who comprehends the need for, the nature of and the significant risks ordinarily inherent in any contemplated hospital, medical, dental, surgical or other health care, treatment or procedure is competent to consent thereto on his or her own behalf. Any health care provider may provide such health care and services in reliance upon such a consent if the consenting person appears to the health care provider securing the consent to possess such requisite comprehension at the time of giving the consent.

(Emphasis added).  If the health care provider believes that an adult patient currently lacks the requisite comprehension, the provider should determine whether the patient executed an advance directive or otherwise conveyed his or her wishes while competent.  (See I.C. § 39-4509).  If there is no such prior direction from the patient or if the patient is an unemancipated minor, the healthcare provider should generally obtain consent from one of the persons identified in Idaho Code § 39-4504(1), i.e., in decreasing order of priority:  a court-appointed guardian; person with durable power of attorney for healthcare; spouse; adult child; parent; person identified in delegation of parental authority; other appropriate relative; or other person who is responsible for the patient’s care.  With limited statutory exceptions, the general rule is that unemancipated minors probably lack capacity to consent to their own health care.  (See I.C. § 39-4504(1)).  Idaho Code § 39-4504(3) generally protects providers who, in good faith, obtain consent from a person who appears to have the requisite authority to give consent.

For questions regarding this update, please contact:
Kim C. Stanger
Holland & Hart, 800 W Main Street, Suite 1750, Boise, ID 83702
email: kcstanger@hollandhart.com, phone: 208-383-3913

This publication is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal or financial advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author. This publication is not intended to create an attorney-client relationship between you and Holland & Hart LLP. Substantive changes in the law subsequent to the date of this publication might affect the analysis or commentary. Similarly, the analysis may differ depending on the jurisdiction or circumstances. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.