This post is written by my colleague, Kirsten Leloudis, and is cross-posted on the School’s Coates Canons Blog.
On August 16, 2023, Session Law (S.L.) 2023-106 was passed after a legislative override of the Governor’s veto. Part 1 of the session law establishes a “Parent’s Bill of Rights,” Part 2 outlines new requirements related to parents’ involvement in their child’s education, and Part 3- the focus of this blog post- codifies standards for obtaining parental consent for treatment of minors. Since the law’s passage, many have asked: “What’s the status of North Carolina’s minor’s consent law, G.S. 90-21.5(a), in light of the new requirements in S.L. 2023-106, Part 3 addressing parents’ rights?” Let’s discuss!
Quick Refresher: What is Minor’s Consent?
In North Carolina, we have a law- G.S. 90-21.5(a)– that allows minors with decisional capacity to consent on their own to certain medical health services for the prevention, diagnosis, or treatment of venereal and other reportable diseases, pregnancy, abuse of controlled substances or alcohol, and emotional disturbance. This statute is often referred to as “North Carolina’s minor’s consent law.” For more information about North Carolina’s minor’s consent law and the types of care that minors may consent to on their own, please refer back to this blog post.
Summary of S.L. 2023-106, Part 3
S.L. 2023-106 amends G.S. 90, Article 1A, which addresses the provision of certain health services to minors. Specifically, the session law creates a new Part 3 of Article 1A titled “Parental Consent for Treatment,” which is codified at G.S. 90-21.10A, 90-21.10B, and 90-21.10C. The three new statutes become effective on December 1, 2023.
The new G.S. 90-21.10A provides definitions for the terms “health care facility,” “health care practitioner,” “minor,” “parent,” and “treatment.” These definitions will apply throughout G.S. 90, Article 1A, including the existing language about minor’s consent at G.S. 90-21.5(a). The definition for each of these terms under the new G.S. 90-21.10A is included below.
- “Health care facility” means “[a] health care facility, licensed under Chapter 131E or 122C of the General Statutes, where health care services are provided to patients, including:
- An agent or employee of the health care facility that is licensed, certified, or otherwise authorized to provide health care services.
- The officers and directors of a health care facility.”
- “Health care practitioner” means “[a]n individual who is licensed, certified, or otherwise authorized under this Chapter , Chapter 90B, Chapter 90C, or Chapter 115C of the General Statutes to provide health care services in the ordinary course of business or practice of a profession or in an approved education or training program, or an agent or employee of that individual.”
- “Minor” means “[a]ny person under the age of 18 who has not been married or has not been emancipated pursuant to Article 35 of Chapter 7B of the General Statutes.”
- “Parent” means “[a] minor’s parent, guardian, or person standing in loco parentis. A person standing in loco parentis is a person who has assumed parental responsibilities, including support and maintenance of the minor.”
- “Treatment” means “[a]ny medical procedure or treatment, including X-rays, the administration of drugs, blood transfusions, use of anesthetics, and laboratory or other diagnostic procedures employed by or ordered by a health care practitioner, that is used, employed, or ordered to be used or employed commensurate with the exercise of reasonable care and equal to the standards of medical practice normally employed in the community where the health care practitioner administers treatment to the minor child.”
The new G.S. 90-21.10B(a) and (b) prohibit a health care practitioner or health care facility from providing, soliciting, or arranging treatment for a minor child without first obtaining written or documented consent from the child’s parent, “[e]xcept as otherwise provided in this Article [1A] or by a court order […].” G.S. 90-21.10B(c) explains that the requirements established in G.S. 90-21.10B(a)-(b) do not apply to services provided by a clinical laboratory unless the services are rendered during a direct encounter with the minor at the laboratory facility. This exception would cover North Carolina’s many clinical laboratories that provide laboratory services under contract and as a vendor to other health care providers, but that never see or provide care to patients in their own facilities.
The new G.S. 90-21.10C establishes penalties for health care practitioners and any “other person” who violates the requirements for prior written or documented parental consent under G.S. 90-21.10B. The term “other person” is likely meant to include agents, employees, officers, and directors of health care facilities, as defined under the new G.S. 90-21.10A(3). Health care practitioners and other persons who violate the new G.S. 90-21.10B are subject to disciplinary action by the board that licensed, certified, or otherwise authorized the health care practitioner to provide treatment and a fine of up to $5,000. For “other persons,” some of whom may not be licensed, certified, or otherwise authorized by a board to provide treatment, it is unclear what the penalty for violating the new law would be and to whom the potential fine described in G.S. 90-21.10C would be paid. Violations can only be committed after December 1, 2023, which is when this new part of G.S. Chapter 90, Article 1A becomes effective.
What Does This Mean for Minor’s Consent?
S.L. 2023-106, Part 3 leaves North Carolina’s minor’s consent law, G.S. 90-21.5(a), intact. The new G.S. 90-21.10B(a) and (b), which outline the requirements for written or documented parental consent, both include the following caveat: “Except as otherwise provided in this Article [1A] or by court order […].” North Carolina’s minor’s consent statute is found in the same Article- Article 1A of G.S. Chapter 90. This means that the requirements for written or documented parental consent for treatment of a minor in the new G.S. 90-21.10B(a)-(b) do not override the existing minor’s consent law and minors may continue to receive care on their own consent in the limited situations described at G.S. 90-21.5(a).
Stay Tuned for Additional Analysis of S.L. 2023-106
This blog post focuses solely on the impact of S.L. 2023-106 on North Carolina’s minor’s consent statute, G.S. 90-21.5(a). There are other areas where S.L. 2023-106 will impact the provision of care to minors and additional analysis of the new law is forthcoming. In the meantime, if you have questions about S.L. 2023-106, minor’s consent, or another public health legal matter, feel free to send me an email at firstname.lastname@example.org