TREATING MINORS UNDER FLORIDA’S NEW PARENTAL CONSENT’ LAW

Prior to HB 241 being signed into law, the Florida Statutes did not contain a provision that specifically made it a crime to provide medical treatment to a minor child without parental consent.  With the new parental consent law that went into effect on July 1, 2021, Florida law now specifically makes it a misdemeanor of the first degree for physicians and other health care providers to provide medical services to a minor without first obtaining written parental consent.  While HB 241 enumerates parental rights with respect to a minor child in multiple areas, the area of concern for physicians lies in Section 7 of the bill, which provides that:

1. Except as otherwise provided by law, a health care practitioner, as defined in s. 456.0001, or an individual employed by such health care practitioner may not provide or solicit or arrange to provide health care services or prescribe medicinal drugs to a minor child without first obtaining written parental consent.

2. Except as otherwise provided by law or a court order, a provider, as defined in s. 408.803, may not allow a medical procedure to be performed on a minor child in its facility without first obtaining written parental consent.

3. This section does not apply to an abortion, which is governed by chapter 390.

4. This section does not apply to services provided by a clinical laboratory unless the services are delivered through a direct encounter with the minor at the clinical laboratory facility.

Two provisions of this new law have generated the most concern.  First, any physician who provides any type of medical treatment to a minor must first obtain the written consent of the minor’s parents.  Simply having a child’s parents present during an office visit no longer satisfies the consent requirement.  Any physician who treats a minor in any type of setting must obtain written consent to do so.

The written consent requirement is not limited to just providing health care services.  Any physician who solicits or arranges to provide health care services or who prescribes medicinal drugs to a minor must first obtain written parental consent.  What does it mean to “solicit” health care services?  HB 241 provides no guidance.  Black’s Law Dictionary defines “solicit” as “1. To seek or to plead, to entreat and ask.  2. To lure or tempt a person.”  As it would be impractical to obtain written consent from every parent whose child might see an advertisement for health care services, in this context written consent is apparently required if a health care provider wishes to ask a specific minor if they would like to receive a particular health care service.

Also undefined is what it means to “arrange” to provide health care services.  Arguably, this could include referring a patient to a specialist, participating in the transfer of a minor patient to a different health care facility, or requesting a consultation or second opinion from another health care provider.  Since the Department of Health was not granted rulemaking authority in the bill, physicians should not expect any clarification of these terms and will have to determine on their own whether a particular action with respect to a minor constitutes soliciting or arranging health care services.

Prescribing medicinal drugs, at least, is self-explanatory.  What is not clear is whether a physician is required to get written consent for providing health care services and a separate consent for prescribing a medicinal drug during the treatment of the minor. The safest course of conduct is to get consent in writing for the examination and treatment, and a separate consent for any prescription written.  Alternatively, it may be permissible to get one consent, in which the parent acknowledges in writing their consent to the provision of health care services as well as their consent to the prescribing of any medicinal drug the physician deems medically necessary.  Given the wording of HB 241, it does not appear that consent for the provision of health care services alone will suffice if such services also include a prescription for medication.

Does the requirement that parental consent be in writing mean that the physician has to maintain paper records of such consent?  HB 241 is silent on this issue.  Presumably physicians will be able to maintain a record of parental consent electronically as part of the patient’s electronic medical record.  If a contrary interpretation emerges and paper records are required, the FMA will notify our members immediately.

The second major issue that physicians will have to deal with regarding the passage of HB 241 is exactly when parental consent is required to treat a minor.  Proponents of this bill note that under the common law, minors generally cannot consent to their own medical treatment, and that Florida law contains a number of statutory exceptions to this common law rule. The proponents argue that HB 241 preserves these exceptions in section 1014.06(1) by the inclusion of the phrase “except as otherwise provided by law.” There is general agreement among medical legal counsel that existing statutory exceptions to the parental consent requirement are maintained by this provision.  There is less agreement about exactly which statutory exceptions are included and in which situations parental consent is not required.

The FMA General Counsel’s Office, along with legal counsel for a number of other physician associations, maintain that “except as otherwise provided by law” exempts from the parental consent requirement only those statutes that specifically allow a physician to provide or a minor to receive health care services without parental consent.  Statutory provisions that merely confer civil immunity from liability for providing a health care service, such as the Good Samaritan Act[i], or the volunteer team physician statute[ii] are not contrary to the parental consent requirement of Section 7 of HB 241 and thus do not qualify as an exception under the “except as otherwise provided by law” provision.

Presumably, the laws that qualify for the “except as otherwise provided by law” exception are federal and state laws, both constitutional, statutory and common.  The FMA has identified the following state statutes as those that would allow a physician to treat a minor without first obtaining written parental consent as required in HB 241 (the full text of each statute is included in the Appendix).