Pennsylvania Act 1999-52 — MEDICAL CONSENT ACT

Act text

MEDICAL CONSENT ACT
                  Act of Nov. 24, 1999, P.L. 546, No. 52              Cl. 35
                                  AN ACT

     Providing a mechanism for parents to confer upon other persons
        the power to consent to medical and mental health care of
        their children; and regulating procedure.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

     Section 1.  Short title.
        This act shall be known and may be cited as the Medical
     Consent Act.
     Section 2.  Legislative intent.
        It is the intent of the General Assembly to provide a
     mechanism similar to a power of attorney whereby parents may
     confer the power to consent to medical and mental health
     treatment of their children upon a relative or family friend in
     order to enable those who are temporarily unable to care for the
     needs of their children to ensure that the medical and mental
     health needs of the children are met without terminating or
     limiting in any way the legal rights of the parents.
     Section 3.  Medical and mental health care consent.
        (a)  General rule.--A parent, legal guardian or legal
     custodian of a minor may confer upon an adult person who is a
     relative or family friend the power to consent to medical,
     surgical, dental, developmental, mental health or other
     treatment to be rendered to the minor under the supervision of
     or upon the advice of a physician, nurse, school nurse, dentist,
     mental health or other health care professional licensed to
     practice in this Commonwealth and to exercise any existing
     parental rights to obtain records and information with regard to
     the health care services and insurance unless the minor is in
     the custody of a county child and youth agency or there is
     currently in effect a prior order of a court in any jurisdiction
     which would prohibit the parent, legal guardian or legal
     custodian from exercising the power that the parent, legal
     guardian or legal custodian seeks to confer. When a parent's
     rights have not been terminated or voluntarily relinquished,
     nothing in this subsection shall divest a parent of the power to
     consent to his children's medical or mental health treatment.
     The authorization may also include the right to act as the
     minor's legal representative for the purposes of receiving
     informational materials regarding vaccines under section 2126 of
     the Public Health Service Act (58 Stat. 682, 42 U.S.C. § 300aa-
     26). Conferral of powers authorized by this subsection shall not
     be used to compel the production or release of records or
     information to which the parent, legal guardian or legal
     custodian would not themselves be entitled to review, receive or
     authorize release to others.
        (b)  Rights of minors.--The provisions of subsection (a) may
     not be utilized by a parent, legal guardian or legal custodian
     to confer upon an adult person who is a relative or family
     friend the power to consent to treatment or to obtain medical or
     mental health records, or insurance records relating to either
     or both, if the power to consent to treatment or to obtain
     medical or mental health records has been assigned by Federal or
     State law to the minor.
        (c)  Form of authorization.--
            (1)  Authorization to consent to medical or mental health
        treatment of a minor may be conveyed by any written form
        containing the name of the person upon whom the power is
        conferred, the name and date of birth of each minor with
        respect to whom the power is conferred, a statement by the
        person conferring the power that there are no court orders
        presently in effect that would prohibit the person from
        conferring the power and a description of the categories for
        which power is being conferred, including medical, surgical,
        dental, developmental, mental health or other treatment or a
        description of the specific treatment for which power is
        being conferred. The authorization shall be signed by the
        parent, legal guardian or legal custodian in the presence of
        and along with the contemporaneous signatures of two
        witnesses who are at least 18 years of age. The person upon
        whom the power to consent to medical or mental health
        treatment is being conferred may not serve as one of the
        witnesses. The adult person upon whom the power to consent to
        medical or mental health treatment is conferred shall also
        sign the authorization. If for any physical reason the person
        executing the authorization is unable to sign, the person
        executing the authorization may make a mark to which that
        person's name shall be subscribed immediately thereafter.
            (2)  The authorization may be substantially in the
        following form, except that the use of alternative language
        shall not be precluded:
                      MEDICAL CONSENT AUTHORIZATION
                (  )  I (name) am the parent of the child(ren) listed
            below and there are no court orders now in effect that
            would prohibit me from conferring the power to consent
            upon another person.
                (  )  I (name) am the legal guardian or legal
            custodian of the child(ren) by court order (copy
            attached, if available) and there are no other court
            orders in effect that would prohibit me from conferring
            the power to consent upon another person.
                I,          , do hereby confer upon           ,
            residing at                   , the power to consent to
            necessary medical or mental health treatment for the
            following child(ren):           , residing at
                          , born on            , and on the
            child(ren)'s behalf do hereby state that the power to
            consent which I confer shall not be affected by my
            subsequent disability or incapacity.
                The power which I confer is specifically limited to
            health care and mental health care decision making, and
            it may be exercised only by the person named above.
                The person named above may consent to the
            child(ren)'s (cross out all that do not apply): medical,
            dental, surgical, developmental and/or mental health
            examination or treatment and may have access to any and
            all records, including, but not limited to, insurance
            records regarding any such services.
                I confer the power to consent freely and knowingly in
            order to provide for the child(ren) and not as a result
            of pressure, threats or payments by any person or agency.
            This document shall remain in effect until it is revoked
            by notifying my child(ren)'s medical, mental health care
            and insurance providers, in writing, and the person named
            above that I wish to revoke it.
                In witness whereof, I,                , have signed
            my name to this medical consent authorization, consisting
            of two (2) pages on this      day of    ,    , in
                          , Pennsylvania.
                (Printed Name)
                (Signature)
                (Witness Signature)
                (Witness No.1 printed Name and Address)
                (Witness Signature)
                (Witness No.2 printed Name and Address)
                (Signature of adult person who is being given power
            to consent)
        (d)  Use by health care provider.--An authorization described
     in subsection (a) which is consistent with the requirements of
     subsection (c)(1) shall be honored by all physicians, nurses,
     school nurses, mental health professionals, dentists, other
     health care professionals, hospitals, medical facilities, mental
     health facilities and insurance providers. Notwithstanding the
     provisions of subsection (f), the existence of a written
     document conveying powers as described in subsection (a) which
     is consistent with the requirements of subsection (c)(1) creates
     a presumption that the power has been lawfully conferred.
        (e)  Revocation.--Powers conferred under this section are
     revocable at will and effective upon notifying all parties of
     interest in writing. Death of a person who has previously
     executed a medical consent authorization constitutes revocation
     of the authorization, except that action taken without actual
     knowledge of the death in good faith reliance upon the
     authorization shall be permitted. Unless otherwise indicated on
     the authorization, disability or incapacity of the person
     executing the authorization does not constitute revocation of
     the authorization.
        (f)  Liability.--A person, contractholder, group health care
     provider, mental health care provider, health care facility,
     mental health care facility and insurer who acts in good faith
     reliance on medical consent authorization shall not incur civil
     or criminal liability or be subject to professional disciplinary
     action for treating a minor without legal consent, except that
     nothing in this section shall relieve an individual from
     liability for violations of other provisions of law.
        (g)  Family reunification services.--This section shall not
     be construed to provide a substitute for family reunification
     services under 23 Pa.C.S. Ch. 63 (relating to child protective
     services). The execution of an authorization pursuant to
     subsection (a) shall not be binding in future custody or
     dependency proceedings. Regardless of the execution of a medical
     consent authorization, future custody or dependency
     determinations shall be based on the prevailing legal standard.
        (h)  Determination of insurance coverage.--An insurer shall
     determine whether to add a child to the insurance coverage of a
     person who has been authorized to consent to treatment of that
     child under this section. No provision of this section may be
     construed to compel an insurer to provide such coverage.
     Section 4.  Effective date.
        This act shall take effect in 90 days.