531. Consent on Behalf of Another

In this case [name of patient] could not consent to the [insert medical procedure] because [he/she] was [insert reason—e.g., a minor/incompetent/unconscious]. In this situation, the law allows [name of authorized person] to give consent on behalf of [name of patient].

You must decide whether [name of authorized person] consented to the [insert medical procedure] performed on [name of patient].

Sources and Authority

"If the patient is a minor or incompetent, the authority to consent is transferred to the patient's legal guardian or closest available relative." (Cobbs v. Grant (1972) 8 Cal.3d 229, 244 [104 Cal.Rptr. 505, 502 P.2d 1]; Farber v. Olkon (1953) 40 Cal.2d 503, 509 [254 P.2d 520].)

Family Code section 6910 provides: "The parent, guardian, or caregiver of a minor who is a relative of the minor and who may authorize medical care and dental care under Section 6550, may authorize in writing an adult into whose care a minor has been entrusted to consent to medical care or dental care, or both, for the minor."

Secondary Sources

5 Witkin, Summary of California Law (9th ed. 1988) Torts, § 353, p. 440

3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, § 31.14 (Matthew Bender)

California Tort Guide (Cont.Ed.Bar 1996) § 9.16

6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14

24 California Forms of Pleading and Practice, Ch. 285, Guardianship and Conservatorship: Care of Ward or Conservatee (Matthew Bender)

26 California Forms of Pleading and Practice, Ch. 304, Insane and Other Incompetent Persons (Matthew Bender)

32 California Forms of Pleading and Practice, Ch. 364, Minors (Matthew Bender)

34 California Forms of Pleading and Practice, Ch. 394, Parent and Child, § 394.54 (Matthew Bender)

33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and Directives, § 104.11 (Matthew Bender)

(New September 2003)