Invoke Parens Patriae to Provide Safe Medical Care to a Child When the Parents Can’t or Won’t Consent

Invoke Parens Patriae to Provide Safe Medical Care to a Child When the Parents Can’t or Won’t Consent

Anne T. Lunney MD

Parens patriae, Latin for “father of the people,” was first instituted by King James I in England in the 1600s. At that time it was utilized to control the use of land by the state. Today, the doctrine of parenspatriae is utilized when the state assumes decision-making authority for those not competent to make their own decisions. Although the scope of parens patriae encompasses incompetent adults as well as children, this chapter focuses on the authority of the state to make decisions regarding the medical care of children.

The state assumes medical decision-making authority on the child’s behalf when the parental decisions are in conflict with the child’s best interest or will result in harm, or when emergency medical care is required to prevent death or serious bodily harm and the parent is unavailable to provide consent.


The ethical standards of beneficence and nonmalfeasance are preserved when parental decision-making authority is maintained. This outcome is based on the assumption that parents will act in the child’s best interest. Furthermore, as the best interest of the child is complex and difficult to define, the parent is in the optimal position to make this determination. In 1976, the American Association of Pediatrics published a policy statement supporting parental authority and stated that only in cases of serious conflict should consultative and judicial assistance be sought to supercede parental decision-making authority.

Although it remains desirable to preserve parental decision-making authority, this authority is not absolute. When parental decisions will result in harm or death, the standards of beneficence and nonmalfeasence are not maintained. Under these circumstances the doctrine of parens patriae permits the state to assume decision-making authority.

As stated, the best interest of a child is difficult to define, and thus the best-interest standard (beneficence) is difficult to define and institute. Diekema suggests that the do no harm standard (nonmalfeasance) is more accurate and easily defined. A harm threshold is utilized to delineate this standard and is defined as the minimum standard of care tolerated by the community. Some clear examples of parental decisions trigger the harm
threshold—including Jehovah’s Witnesses (JW) who withhold a life-saving blood transfusion from their child, Christian Scientists who withhold insulin in the care of their diabetic child, and the situation when the parent is unavailable to provide consent for an emergency medical intervention.

The ethical framework of do no harm delineates the requirements that should be met before implementation of parens patriae. These requirements are the following: (a) there is a significant risk for serious harm; (b) harm is imminent and requires immediate action; (c) an intervention is required to prevent harm; (d) the refused intervention has proven efficacy; (e) the projected outcome outweighs harm; (f) there is not a more acceptable option; (g) the intervention is generalizable to similar situations; and (h) most parents would agree that the intervention is reasonable.


Common law supports self-determination, which includes the individual’s right to make decisions regarding his or her own body. The seminal cases supporting self-determination are the 1767 decision in the United Kingdom of Slater v. Baker and Stapleton, in which physicians were charged with battery if they did not gain the consent of their patients before a surgery or procedure; and the 1914 United States decision of Schloendorff v. Society of New York Hospital, in which the justices determined that “every human being of adult years and sound mind has a right to determine what shall be done with his own body.” In 1972, the American Medical Association included informed consent in the patient’s bill of rights.

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Jul 1, 2016 | Posted by in ANESTHESIA | Comments Off on Invoke Parens Patriae to Provide Safe Medical Care to a Child When the Parents Can’t or Won’t Consent
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