North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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October 4, 1977 Infants and Incompetents; Mental Health; Physicians; Services Rendered to Minors by Social Workers and Psychologists Without Parental Consent

Subject:

 

Requested By: Ed McClearen Staff Attorney, Mental Health Study Commission

 

Questions: (1)

Under the terms of Article 1A of Chapter 90 of the North Carolina General Statutes, does the legal protection the Article affords to a physician treating a minor without parental consent extend to social workers and psychologists who are working under the direction and supervision of such physician?
(2)
Under the terms of Article 1A of Chapter 90 of the North Carolina General Statutes, does the legal protection the Article affords to a physician treating a minor without parental consent extend to social workers and psychologists who are not working under the direction and supervision of such physician?

Conclusion: (1)

Yes.
(2)
No.

Effective July 1, 1977, Article 1A, Chapter 90 was amended to provide that:

"Any minor may give effective consent to a physician licensed to practice medicine in North Carolina for medical health services for the prevention, diagnosis and treatment of (i) venereal disease and other diseases reportable under G.S. 130-81, (ii) pregnancy, (iii) abuse of controlled substances or alcohol, and (iv) emotional disturbance. This section does not authorize the inducing of an abortion, performance of a sterilization operation, or commitment to a mental institution or hospital for confinement or treatment of a mental condition." (G.S. 90-21.5(a)).

"Any physician licensed to practice medicine in North Carolina providing health services to a minor under the terms, conditions and circumstances of this Article shall not be held liable in any civil or criminal action for providing such services without having obtained permission from the minor's parent, legal guardian, or person standing in loco parentis. The physician shall not be relieved on the basis of this Article from liability for negligence in the diagnosis and treatment of a minor." (G.S. 90-21.4(a))

It appears clear that, in addition to the services of a physician, the treatment of minors in mental health facilities includes the various types of therapeutic services rendered by professionals in other disciplines. So long as these other professionals (such as social workers and psychologists) are working under the direction and supervision of a physician licensed to practice medicine in North Carolina, the principles established by legal precedents in this State should afford guidance in resolving these questions.

In North Carolina, normally, the acts and omissions of an agent or an assistant to a physician which are performed at the direction or under the supervision of that physician-in-charge are "referable and imputable to the true author" of the orders prescribing treatment. See Jackson v. Joyner, 236 N.C. 259 (1952); Davis v. Wilson, 265 N.C. 139 (1965); Byrd v. Hospital, 202 N.C. 337 (1932); 44 N.C.A.G. 299 (1975).

In an Opinion of the Attorney General issued today similar conclusions to those presently set forth were reached as to the effect of the new "immunizing" statutes relating to actions of physician's assistants and nurse practitioners functioning under a physician's supervision and standing orders. The same rationale applied there -- i.e., that which is set forth above-should apply here.

It is basic common law principle that parents are normally responsible for the care, control and welfare of their children. Concomitant with that responsibility is the requirement to obtain parental consent for medical treatment of minors, absent statutory relief from this duty. See Sharpe v. Pugh, 270 N.C. 598 (1967). Professionals in areas such as social services and psychology who are not working under the direction and supervision of a physician receive no immunity from the provisions of Article 1A, Chapter 90. As a result, they may be vulnerable in situations where they render services of the nature described to minors without obtaining parental consent.

Additional comment is in order so as to prevent any misconception as to the extent of this opinion. It is intended to cover only the non-negligent actions of the personnel described in connection with the diagnosis and treatment of minors in certain areas. The statutes specifically exclude from relief liability of physicians for negligence in such diagnosis and treatment and the same provisions would apply to these other professional personnel.

Further, the doctrine of respondeat superior affords the basis for the decisions cited in support of this opinion. That doctrine usually contemplates that the employer will be responsible for the actions of his employees if he hires them, prescribes the rules that they work under, and supervises them. It must be recognized that, as a fact of life, within the State Mental Hospital and Centers for the Mentally Retarded and in the Area Mental Health Authority facilities, the attending physician may not have the authority to employ the other professional personnel described in this opinion. This fact might have some influence on his final responsibility for these individuals' negligent acts if he is sued as a result of their acts. See Davis v. Wilson, supra; Starnes v. Hospital Authority, 28 N.C. Appeals 418 (1976). However, that factor should have no bearing upon the conclusions arrived at here dealing only with immunity of social workers and psychologists in the situations described for non-negligent delivery of these specific services to minors without parental consent.

Rufus L. Edmisten Attorney General

William F. O'Connell Special Deputy Attorney General