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Should you treat a child whose guardian is not legally authorized to make medical decisions?

July 1, 2022

You are preparing to enter the room for a well-child visit with an 11-year-old new patient. Your staff mentions the child is here with her mother’s best friend because her mother was deported to Honduras. The child is staying with close family friends who have no paperwork authorizing them to make medical decisions. What do you do?

In the last few years, there has been an increase in pediatric patients whose parents are suddenly detained or deported for lacking legal immigration documents. Sometimes, the children are under the care of extended family or close friends who do not have legal authority to consent to their medical care. This puts pediatricians in a quandary. There are legal barriers to performing medical interventions without legal consent from an adult with legal authority to grant that consent.

Other children immigrate without their parents. From June 2021 to March 2022, over 58,000 unaccompanied children (UC) under age 18 entered the U.S. through the Border Patrol system. These children spent about one to two months in the Department of Health and Human Services (HHS) custody prior to being placed with a sponsor. Most received medical attention, immunizations and housing while awaiting a sponsor.

The Trafficking Victims Protection Reauthorization Act of 2008 directs that vulnerable UC “be promptly placed in the least restrictive setting that is in the best interest of the child.”

The settlement agreement in Flores v. Reno established a mandated order of priority for court-appointed sponsors who are responsible for the child’s care and can consent to medical care. Sponsors can be parents, relatives, friends or other adults. HHS remains involved if the child has complex social, medical or mental health issues. Office of Refugee Resettlement (ORR) sponsors should have appropriate paperwork for their charges, including immunization and medical records. Medical and legal paperwork for ORR-sponsored children usually is straightforward.

Per the National Center for Medical Legal Partnerships (MLP), New York has enacted a law allowing “parents who are at risk of immigration enforcement because of their status to designate a standby guardian to care for their children in the event the parent is detained or deported.”

Here are some suggestions to help pediatricians navigate these complex situations.

Use translation services as required by law. See related AAP News article at https://bit.ly/3adyCwf.

Consult the AAP clinical report Consent by Proxy for Nonurgent Pediatric Care (https://bit.ly/3t6mrI3). When a child does not have a legally authorized guardian available, the pediatrician could consider delaying nonurgent medical care until the parent or a legal entity appoints an appropriate proxy. Or the pediatrician may adapt risk management strategies suggested in the clinical report such as documenting oral permission from the parent by telephone.

Document informed consent and take precautions to avoid a claim of medical battery. Medical battery is understood as intentional, offensive touching that inflicts harm and/or violates the patient's bodily integrity. In the absence of consent by an appropriate proxy, physicians examining and treating minors could have this legal charge leveled at them, or it could be used in a complaint against their state medical licensure. Patients or caregivers may perceive unclothed physical examinations as offensive touching.

AAP policy recommends using chaperones (https://bit.ly/3MgH3V6) and obtaining assent from patients even as young as 7 years old and permission from the accompanying adult (https://bit.ly/3zjOMP0).

Even though the risk of a battery claim is low, pediatricians should document the medical services provided and the situation surrounding the need for proxy authorization.

Recognize and report abuse and child exploitation. If a patient is in the care of an adult other than a legally authorized representative, pediatricians should consider the possibility that the child is being held against his or her will. The Academy’s clinical report Child Sex Trafficking and Commercial Sexual Exploitation: Health Care Needs of Victims provides guidance (https://bit.ly/3GJDCFg).

Know the laws concerning reporting undocumented individuals. According to the National Immigration Law Center, “Health care providers have no affirmative legal obligation to inquire into or report to federal immigration authorities about a patient’s immigration status” (https://bit.ly/3x54ign).  

Consider legal assistance. More than 450 medical-legal partnerships (MLPs) are available at academic medical centers, children’s hospitals and independent organizations (https://medical-legalpartnership.org/partnerships/). MLPs can assist with proper legal procedures and paperwork to establish guardians for undocumented children.

Kids in Need of Defense (KIND) provides another source of help to these children (https://supportkind.org/). Local attorneys also may be willing to provide pro bono assistance.

In a 2017 letter to AAP membership, then-President Fernando Stein, M.D., FAAP, stated: “I believe we have a moral duty to help these families and children. It has been said that not everything that is legal is moral and not everything that is moral is legal. I hope you will stand with me and the AAP leadership when we say, ‘Yes, I am my brother’s keeper!’”

Similarly, a resolution that “the Academy support measures on how best to ensure a medical home is available to immigrant children or adolescents who do not have a legal guardian readily accessible for medical decision-making” was adopted at the 2020 Annual Leadership Forum (now known as the Leadership Conference).

Medical liability risk management strategies are prudent, but the driving factor is to do what’s best for the patient.

Dr. Scibilia is chair of the AAP Committee on Medical Liability and Risk Management.

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