Medical Consent for Children in DSS Custody

by Sara DePasquale

All children in the custody of a county child welfare agency (typically called a department of social services, or DSS) need medical care at some point. Yet when medical treatment is needed, questions often arise about who consents to the child’s care. As we will see in this article, state law helps answer these questions, but there is no single, simple answer that applies to all children in foster care.

Can a North Carolina Foster Parent Give Consent for Medical Treatment of a Child in Foster Care?
No. A foster parent is not a person standing in loco parentis to a child (Liner v. Brown, 117 N.C. App. 44 [1994]). As a result, a foster parent cannot consent to treatment of a child in their care (G.S. 90-21.1). Nor can a county department delegate its medical decision-making authority to a foster parent. A foster parent may only consent to a child’s medical care when there is a court order that delegates that right to the foster parent (G.S. 7B-903.1(a)).

When Is a Child in DSS Custody?

A child is placed in DSS custody by a court order that is entered in an abuse, neglect, or dependency proceeding. Custody can be ordered to DSS at two different points: nonsecure and/or disposition. Nonsecure custody is a temporary custody order entered before the adjudicatory hearing. Dispositional orders are entered after a child has been adjudicated abused, neglected, or dependent. Dispositional orders include custody provisions, one of which may be custody to DSS.

What is Informed Consent?

Informed consent is voluntarily given to a health care provider by a patient or by a person authorized to consent for a patient. The consent is for a specific treatment the medical provider has explained in a way that would give a reasonable person a general understanding of the treatment, including its most frequent risks and hazards (G.S. 90-21.13(a)(2)).

Who Consents?

On October 1, 2015, two new NC laws about medical decision-making for children in DSS custody went into effect (G.S. 7B-505.1 and G.S. 7B-903.1(e)). Based on these laws, who consents to a child’s care depends on the type of care needed.

Routine and Emergency Care

When a child is in DSS custody, DSS has the authority to arrange for and consent to the child’s:

  • routine medical and dental care (note, mental health is not included here);
  • emergency medical, surgical, or mental health care; and
  • testing and evaluation in exigent circumstances.

The law doesn’t define “routine” care, but some guidance is provided by the medical community. For example, a well-child visit, which involves height, weight, and blood pressure measurements; a check of vital functions; vision, hearing, dental, developmental, and lead screening; a physical examination; and up-to-date immunizations, is widely recognized as routine.

Merriam-Webster Dictionary defines routine as “a regular course of procedure.” Using that definition, a “sick visit” is probably routine since a routine practice for a parent of a sick child typically includes scheduling a visit with the child’s medical provider and following the course of recommended treatment.

Emergency treatment is also not defined by the law, but Medicaid regulations define an “emergency medical condition” and “emergency services” (42 C.F.R. 438.114(a)). (Most children in foster care are eligible for Medicaid.) Emergency services are given to an individual by a medical provider when needed to evaluate or stabilize an emergency medical condition, which is a condition that involves acute symptoms of sufficient severity that a prudent layperson with an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in:

  • placing the person’s health in serious jeopardy,
  • serious impairment of bodily functions, or
  • serious dysfunction of any bodily organ or part.

Exigent means requiring immediate attention. In exigent circumstances, DSS can consent to tests and evaluations but not to the treatment of any condition diagnosed from the tests or evaluations.

Non-Routine and Non-Emergency Care
When the Parent Consents

The general rule for a child in DSS custody who requires non-routine or non-emergency medical care is that the child’s parent, guardian, or custodian (“parent”) consents. Maintaining a parent’s right to make decisions for his or her child recognizes the state policy of having child welfare workers partner with parents when making decisions regarding the child and that “parents of children in foster care placement retain many of their rights” (NC DSS Child Welfare Services Manual, Section 1201.V, 2015).

When DSS Consents

There are two exceptions to this general rule. One, a parent may complete a written authorization allowing DSS to consent to the child’s treatment. Two, after a hearing, the court may enter an order that authorizes DSS to consent to the child’s treatment when the court has found by clear and convincing evidence that the non-routine or non-emergency treatment or evaluation is in the child’s best interests. Depending on the facts of the case, the court order may designate specific treatments (e.g., counseling) or all non-routine and non-emergency treatment for the child.

Non-Routine and Non-Emergency Care

The law does not define types of medical care, but it does identify a partial list of non-routine / non-emergency treatments:

  • Prescriptions for psychotropic medications.
  • Participation in clinical trials.
  • Immunizations when it is known the parent has as bona fide religious objection to the standard schedule of immunizations.
  • Surgical, medical, dental, psychiatric, psychological, or mental health tests, care, or treatment that require informed consent.

Other treatments not included in this list that are not routine or emergency care require a parent’s consent unless the parent has authorized DSS to consent or a court order grants the department that authority.

What about a Child with a Chronic Condition?

It is unclear if treatment that is routine for a particular condition (e.g., diabetes) but is not routine for all children is “routine.” If there is disagreement over whether the parent or DSS should consent, a court must decide the matter.

What if You’re Unsure about Treatment Type?

If there is any question as to whether a treatment is routine, emergency, or exigent, ask the medical provider.

Can a Child in Foster Care Give Medical Consent?
Under North Carolina law, a licensed physician may accept a minor’s consent for medical services for the prevention, diagnosis, and treatment of: a sexually transmitted or reportable communicable disease; pregnancy; abuse of alcohol or controlled substances; or emotional disturbance. A minor’s ability to consent to these specified medical services is not affected by an order that places the minor in DSS custody. The medical provider may accept the minor’s consent without seeking the consent of the minor’s parent or the county DSS (G.S. 90-21.5).

Sara DePasquale is an Assistant Professor of Public Law and Government at the School of Government at UNC-Chapel Hill.