Refusing EMS Treatment in New Mexico
Spencer A. Hall, MD JD

One of the most perplexing problems that EMTs can face is that of a
minor, say someone 16 years old, who is involved in an MVA and neither
needs, nor wants, transport to an emergency room for evaluation.  The
patient is not old enough to consent to, or refuse, treatment.  If no
family is present to refuse, it seems the EMTs must transport the
patient against their will.  This essay will try to present a
framework for New Mexico EMTs to use in handling this type of
situation.  As with any proposed protocol, local medical control will
dictate exactly what a given service will do.

There are three classes of patients who need to be considered.  Those
younger than 15, those 15 to 18, and those above the age of 18[1].
These will be considered in order.

Those under the age of 15 should not be allowed to refuse, or consent
to, treatment.  Although psychologists have determined that starting
about age 14 adult reasoning patterns necessary to understand informed
consent develop[2], 15 is more appropriate as a cut off point.  There
are no reported US cases within the last 30 years where a parent has
recovered damages for the appropriate treatment of a child over the
age of 15 when the child consented to the treatment[3].  New Mexico
driver's licenses may also be obtained at this age, raising the
possibility that they will be patients.

There is only one alternative to the treatment, and transport, of a
child below the age of 15.  If a relative cannot be contacted, it may
be possible to find an individual to stand in loco parentis for the
child.  This is a legal concept which has been defined by courts in
New Mexico as "Loco parentis exists when a person undertakes the care
and control of another in the absence of such supervision by the
latter's natural parents and in the absence of formal legal approval.
It is temporary in character. . ."[4] and " A person is said to stand
in loco parentis when he puts himself in the situation of a lawful
parent by assuming the obligations incident to the parental
relationship without going through the formalities necessary to a
legal adoption.... However, the person must intend to assume toward
the child the status of a parent."[5]   There are common examples of
this.  Teachers, and other school personnel, routinely assume this
function, and law enforcement personnel may also.  New Mexico law
specifically allows consent for emergency treatment of minors by those
standing in loco parentis.[6]   The use of this needs to be cautious.
Anyone assuming the loco parentis relationship also assumes a
relationship for which they could be held liable.  No one should be
asked to assume this relationship in order to refuse treatment for a
child unless there is no likelihood of a significant injury, or
illness, otherwise they could be found negligent for unreasonably
exposing the child to risk of harm.  On the other hand, if an
ambulance has been dispatched to a scene where there are no, or very
minor, injuries, it may be appropriate for EMTs to try and find
someone, law enforcement for example, to refuse unneeded service on
behalf of the minor.

The case of a patient between the age of 15 and 18, who is not
otherwise emancipated, is more complex.  Although in some states there
are laws allowing consent after a specific age in this range[7], the
more usual approach is the "mature minor" rule.  This focuses on the
patient's ability to understand and appreciate the consequences of the
proposed treatment.[8] Application of the mature minor concept may be
a difficult area for the EMT.  They will have to determine if the
minor patient is able to understand the implications of his or her
refusal to the same degree a reasonable adult would[9].  The EMT
should require more evidence of understanding the greater the injury
to the patient.  It is more appropriate to allow a mature minor to
refuse transport for a sprained ankle or broken wrist than for a
gunshot wound or high speed MVA.

Anyone above the age of 18 in New Mexico has reached the age of
majority[10] and is able to consent to medical treatment. Ability to
consent implies ability to refuse.  In order to properly consent to a
treatment, an individual must understand the nature of the treatment,
including the risks and alternatives, and the possible consequences of
treatment refusal.

In addition to the above categories, anyone who is an emancipated
minor or who has contracted a valid marriage may make their own
medical decisions under New Mexico law[11].  An emancipated minor is
anyone over the age of 16 who has either entered into a valid
marriage, is serving on active duty with the US armed forces, or has
been formally emancipated by a court[12].

There are a couple of caveats to bear in mind when dealing with these
issues of treatment refusal.  Whenever treatment is refused by anyone
under the age of 18, it is important to record the circumstances fully
and in detail.  It is vital to document that the person understands
the nature of their injury and the risks of not being transported.  It
is especially important to have a third party not associated with the
ambulance service, such as law enforcement, witness and agree with the
EMT that the minor understands.  Although this adds to the complexity
of the paperwork, it serves to protect EMTs by providing an
independent, outside confirmation of their determination of the
patient's maturity  and understanding.

Law enforcement personnel are used as appropriate surrogates and
witnesses because they have training in assuming responsibility for
others, are frequently  present in situations where treatment may be
refused, and may have more experience in judging understanding.
Family friends and neighbors may also work.

New Mexico allows the transport of anyone against their will when the
EMT has reason to believe they need urgent medical care and are unable
to make an informed decision about refusing care[13].  This holds
regardless of the age, or maturity, of the patient.

  In considering any patient refusal, remember that if there is any
    question, it is more fitting to err on the side of treatment.



    Notes

    1. Classes similar to these were suggested as part of the Richard
    Lazar Transport Refusal Matrix, EMS Insider, December 1994 and January
    1995.

    2. 19.01[5] Developmental Aspects of Minor Decision making, in
    Treatise on Health Care Law (Matthew Bender,  1996).

    3. 19.01[3][c] Statutes Permitting General Consent to Treatment, in
    Treatise on Health Care Law (Matthew Bender,  1996).

    4. Griego v. Hogan, 377 P.2d 953, 71 N.M. 280, 284  (S. Ct. 1963).

    5. Fevig v. Fevig, 90 N.M. 51, 559 P.2d 839 (1977).

    6. 24-10-2 NMSA 1978.

    7. 19.01[3][c] Statutes Permitting General Consent to Treatment, in
    Treatise on Health Care Law (Matthew Bender,  1996).  For example
    Alabama allows consent at 14, Oregon at 15, Kansas at 16, etc.

    8. Id.

    9. Although New Mexico has not formally adopted the mature minor
    doctrine, there is judicial reasoning which recognizes the concept.
    See, for example, Gallegos v. McKee, 69 N.M. 433, 447 (S. Ct. 1962),
    "In Thomas v. Amdersman, 59 N.M. 400, we recognized that until a child
    has arrived at a stage of development or maturity where it can be
    shown  he is capable of using the same judgement as a reasonably
    prudent adult, his conduct is not to be measured by the same standard
    as is the conduct of a mature person." (Emphasis added)

    10. 28-6-1 NMSA 1978.

    11. 24-10-1 NMSA 1978.  Please note that this also holds even if the
    marriage has been ended.

    12. 32A-21-3 NMSA 1978.

    13. 24-10B-9.1 NMSA 1978.