Obligations of a physician and the limits of his/her liability towards the attitudes of legal representatives that hinder or prevent the treatment of a minor patient with type 1 diabetes – legal and ethical aspects

Introduction – case description

This analysis examines the case of a minor patient with type 1 diabetes whose legal representatives (usually parents) restrict the child’s access to standard medical care in various ways. These actions include irregular follow-up visits with a pediatric diabetologist and endocrinologists or diabetes clinic, forgoing recommended insulin therapy, refusing diagnostic testing, and using alternative medicine methods such as elimination diets, questionable supplements, or detoxification therapies. In extreme cases, this behavior leads to serious disease exacerbations, such as ketoacidosis, and in the long term, even death. In clinical practice, situations where the patient fails to attend diabetes clinic appointments, and parents forgo insulin therapy in favor of alternative therapies are becoming increasingly common* [1, 2]. The analyzed case reveals the tension between the legal and ethical obligations of a physician obliged to protect the life and health of a child, and the right of the minor’s legal representatives to decide on the methods of treatment of their child.

Medical professionals and those responsible for organizing the healthcare system for minors are faced with the need to answer a number of questions regarding the scope of their duties and responsibilities: whether they are obliged to take action towards a child who is not under medical care, whether they should actively search for a minor patient and how, who should be notified in the event of a threat to their health or life, what regulations govern the physician’s liability in such situations, whether the physician is liable for failure to intervene, and how they should document their actions to comply with the law and ethical principles.

The child’s status as a patient

According to Article 1 of the Convention on the Rights of the Child, “’child’ means every human being under the age of eighteen years, unless, under the law applicable to the child, the child attains the age of majority earlier.” In Article 2 of the Act of 6 January 2000 on the Ombudsman for Children, the Polish legislator stated that “a child is every human being from conception to the age of majority.” Due to the precisely defined framework of this article, further consideration will be limited solely to those issues that concern the child in the postnatal period. Furthermore, the authors will focus solely on the legal situation of a child with type 1 diabetes, greatly limiting and specifying the discussion in this work. Błażej Kmieciak, in his meticulous review of the doctrine, cites the position expressed by Marek Klimek, who stated: “In the entire system of international law of the 20^th century, the protection of children’s rights has become one of the most important ideas. Children are perceived as subjects of special care due to their physical and mental immaturity. Therefore, the protection of their rights has become one of the leading aspects of the human rights protection system, both in domestic legislation (especially in democratic countries) and in international law” [3].

Pursuant to Article 3 § 1 Indent 4 of the Patient Rights Act, a “patient” in the Polish legal system is defined as any “person requesting health services or using health services provided by an entity providing health services or a person performing a medical profession” [4]. One should fully agree with the view expressed by Joanna Haberko, who stated that: “providing health services to a child, i.e., a minor patient, does not take place in a family-legal and social vacuum. Regulations covering the principles of providing information, expressing consent, and maintaining confidentiality regarding the child’s person and body cannot ignore the fact that a person is a child until the age of 18 and that parents (legal representatives) play the main role in realizing their rights” [5]. It is impossible to omit here the reference to the Constitution of the Republic of Poland, which expressly states in Article 68 (3), that: “public authorities shall ensure special health care to children, pregnant women, handicapped people and persons of advanced age” [6].

Taking into account two key aspects – first, that in the process of providing healthcare services, the rights of child patients are primarily exercised by their parents, and second, that public authorities have a constitutional obligation to provide children with special healthcare – when analyzing a given case, it should be clearly stated that the primary goal (good) is the health and treatment of the minor. In the situation discussed here, this means ensuring the child receives effective diabetes treatment.

As the legal regulations outlined above indicate, a child is a legal entity, a patient whose status is subject to special legal protection. Further discussion will expand on this topic in close relation to the diagnostic and treatment processes for children with type 1 diabetes and the related aspects of parental authority in the context of healthcare services provided to their children.

Children’s rights and parents’ obligations

Under Article 24 of the Convention on the Rights of the Child, “States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.” Similarly, attention should be drawn to Article 68(3) of the Constitution, according to which – as already indicated – public authorities are obligated to ensure special health care for children.

At this point, it would be appropriate to briefly refer to the Patient Rights Act, according to which a child (and therefore a minor patient) has not only the right to health services that meet the requirements of current medical knowledge, i.e., those that are consistent with Evidence-Based Medicine, but also to services provided with due diligence (Article 8 of the Patient Rights Act and Article 4 of the Act on the Professions of Physicians and Dentists). Furthermore, a child (who has turned 16) as a patient has the right “to obtain from a person practicing a medical profession accessible information about their health condition (...), diagnosis, proposed and possible diagnostic and treatment methods, foreseeable consequences of their use or omission, treatment results, and prognosis, within the scope of health services provided by that person and in accordance with their authorizations (Article 9 of the Patient Rights Act and Article 31 of the Act on the Professions of Physicians and Dentists” [7]).

In the context of the issues covered by this article, it also seems crucial to recall the wording of Article 9 section 7 of the Patient Rights Act, according to which “a minor patient who has not reached the age of 16 has the right to obtain information from a person performing a medical profession (...), to the extent and in the form necessary for the proper conduct of the diagnostic or therapeutic process.” The above-mentioned provisions of Polish law are evidence of the fact that the legislator has not only provided minor patients with special protection, but also confirmed their subjectivity, in a manner consistent with Article 12 section 1 of the Convention on the Rights of the Child, which reads: “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

Using a sui generis mental shortcut, one can say that the correlate of a child’s rights to health care are the obligations of those exercising parental authority over the child. In this regard, particular importance should be attached to the provisions of Articles 92 to 112 of the Family and Guardianship Code [8]. According to these legal regulations, among others: a child remains under parental authority until reaching the age of majority; this authority is legally vested in both parents. It includes, in particular, the parents’ obligation and right to exercise care over the person and property and to raise the child, respecting the child’s dignity and rights, etc. Of particular importance in the context of the issues discussed in this paper is Article 97 of the aforementioned Code, according to which: “If both parents have parental authority, each of them is obligated and authorized to exercise it: (§ 1); “However, the parents decide on important matters concerning the child jointly; in the absence of agreement between them, the guardianship court shall decide (§ 2).”

The conflict between parental autonomy and the protection of the child’s well-being

Conflict between parents and children, regardless of the family model adopted, will most often arise in the context of a conflict between two fundamental principles: parental autonomy and the best interests of the child. Both of these principles have a strong foundation in the Constitution itself.

Parental autonomy stems from Article 48 of the Constitution, which states that “parents shall have the right to rear their children in accordance with their own convictions. Such upbringing shall respect the degree of maturity of a child as well as his freedom of conscience and belief and also his convictions” [9]. Additionally, one of the constitutional principles of the Republic of Poland, as stated in Article 18 of the Constitution, is the legal protection of institutions such as marriage, understood as a union between a woman and a man, family, motherhood and parenthood [10]. It should therefore be noted that the very fact of being a parent – not necessarily being married – is associated with certain rights guaranteed by the Constitution. This regulation is further clarified by the provisions of the Family and Guardianship Code, which stipulates that parental authority should be exercised with the child’s best interests and the public interest in mind. Before making important decisions concerning the child, parents should listen to the child’s views, provided their development and maturity allow for it. It is also noted that parental autonomy is broad, as they can independently decide on the child’s upbringing, education, health, and religion. However, the limits of this autonomy will always be the child’s best interests [11]. Additionally, as Tadeusz Smyczyński points out, parental autonomy has at least three levels: (1) it is not subject to constant supervision, as the guardianship court may intervene only in exceptional cases; (2) as a rule, no one other than the parents has the possibility to influence the exercise of parental authority without their consent; (3) the parents remain independent in relation to each other – if both parents are entitled to parental authority [12].

Similarly, the best interests of the child do not have a legal definition. Article 72 of the Constitution of the Republic of Poland states that “The Republic of Poland shall ensure protection of the rights of the child. Everyone shall have the right to demand of organs of public authority that they defend children against violence, cruelty, exploitation and actions which undermine their moral sense. A child deprived of parental care shall have the right to care and assistance provided by public authorities” [13]. The doctrine emphasizes that the child’s well-being is a complex of tangible and intangible values, essential for proper physical and spiritual development and preparation for independent living, determined by many factors. It can be understood both as a valued value and as a state of affairs – an optimal configuration of elements concerning the child’s situation and their best interests. The child is the primary point of reference for assessing and addressing the consequences of all adult actions. The child’s well-being, highly valued by contemporary legislators, is reflected in the Constitution of the Republic of Poland, the Convention on the Rights of the Child, and the Family and Guardianship Code, which mandate placing the child above the interests of adults, including parents. It encompasses every sphere of a child’s life – family, educational, and health – and means their uninterrupted physical and mental development. Parents, guided by the child’s well-being, should provide conditions for harmonious development, respect for dignity, health protection, and proper education, acting in accordance with the child’s, society’s, and their own interests [14].

Although one must agree with the thesis that “the child’s well-being is usually in full harmony with the interests of the parents” [15], it is also obvious that in unusual situations, a parent may act, consciously or not, against the child’s best interests [16]. Conflicts in the context of the analyzed case of a child with type 1 diabetes can occur on at least several levels. Parents, citing autonomy and ideological reasons, may refuse insulin therapy for their child or hinder its regular use. They may also outright refuse conventional medical practices in favor of alternative medicine. Citing their right to decide on the provision of medical services to the child, they may refuse hospitalization for hypoglycemia or acidosis. Parents may also refuse or hinder cooperation with a medical provider, for example, by withholding information about the child’s health. These behaviors, while acceptable from a purely systemic level, clearly contradict current standards of medical knowledge, according to which “people with type 1 diabetes absolutely require insulin treatment. Even during remission, insulin therapy should be maintained” [17], and also “in the event of an incident of severe hypoglycemia, hospitalization of the patient should be considered due to the life-threatening condition associated with the possibility of developing irreversible changes in the central nervous system, especially if there is a possibility of recurrence of severe hypoglycemia” [17]. The above dispute, if it cannot be resolved at the level of conciliation between the physician and parents or the physician and parents and the child, if the child is heard, may be resolved through appropriate proceedings before a guardianship court (in detail on this subject, especially: [14]). There may also be a situation in which the physician makes the decision independently, and then the matter may be resolved at the stage of disciplinary proceedings or another procedure in which the physician’s action or omission will be assessed.

Obligations of a physician in the event of omission, refusal or questioning of the treatment of a minor patient by legal representatives

When analyzing the case described in the introduction, it is necessary to specifically examine the physician’s obligations towards a child with type 1 diabetes who stops attending follow-up appointments or whose legal representatives directly question conventional treatment methods. The overarching obligation of the attending physician and the medical entity is to act in a manner that protects the life and health of the minor. According to Article 4 of the Act on the Professions of Physicians and Dentists, a physician is obligated to practice their profession in accordance with current medical knowledge, available methods and means for preventing, diagnosing, and treating diseases, in accordance with the principles of professional ethics, and with due diligence. In the case of a diabetologist, this will include implementation and modification of pharmacotherapy, mainly insulin therapy, health education, regular monitoring of diabetes metabolic control, and assessment of the risk of disease complications. In practice, this means that cases of a child’s absence from a diabetes clinic appointment (especially unjustified and prolonged absences) and the denial of treatment methods by the minor’s legal representatives should be treated as a potential threat to the patient’s life and health.

A child’s right to health protection (Article 68 of the Polish Constitution) and the right to health services consistent with current medical knowledge (Article 9 of the Patient Rights Act) provide physicians with the basis for taking action to ensure patient safety, even in the event of parental absence or neglect. Physicians are not only obligated to treat but also to respond to situations in which caregiver negligence poses a risk of serious complications or the child’s death. In practice, physicians’ actions should include: documenting the minor patient’s absence during diabetes clinic visits, initiating telephone or written contact with legal representatives, informing them of any threats to the child’s life and health, and, if they continue to receive no response, notifying the appropriate authorities (guardianship court and law enforcement).

Most importantly, protecting the child’s best interests takes precedence over parental autonomy if the child’s health is at risk. In the case under discussion, some of the physician’s obligations are particularly relevant to the termination of a minor’s participation in the healthcare system. This particularly concerns the physician’s obligations to provide information to the patient and legal guardian, as well as attempting to establish contact with them.

Consent to treatment and information obligation

In the case of a minor diabetes patient, the conditions for fulfilling the obligations related to obtaining consent to treatment and providing information are the same as for other minor patients. Pursuant to Article 17 sections 1–3 of the Patient Rights Act and Article 32 sections 2 and 5 of the Act on the Professions of Physicians and Dentists, in the case of a minor under 16 years of age, only their legal representative has the right to consent to the provision of healthcare services (substitutive consent). A minor alone does not have the right to make decisions. However, pursuant to Article 17 section 1 of the Patient Rights Act, a patient over 16 years of age has the right to consent to undergoing an examination or providing other health services. However, pursuant to Article 17 section 2 of the Patient Rights Act, the child’s legal representative is also entitled to consent (cumulative, parallel consent). The mere acceptance of a minor patient does not justify the lawfulness of medical consent.

For consent to be valid, the information provided to the patient must be of an appropriate scope. The patient’s right to information is regulated in Chapter 3 of Patient Rights Act. Pursuant to Article 9 section 2 of the Patient Rights Act, every patient, including minors over 16 years of age, or their legal representative, has the right to obtain accessible information from a physician. Corresponding to this right, in accordance with Article 31 section 1 of the Act on the Professions of Physicians and Dentists, is the physician’s obligation to provide the patient or their legal representative with accessible information about their health condition, diagnosis, diagnostic and treatment methods, the consequences of their use, treatment results, and prognosis. Based on this obligation, the physician should inform the patient about the potential risks of diagnostic and treatment procedures and the expected benefits associated with the medical intervention, as well as about the possibilities of using alternative treatment procedures.

However, it is important to remember that when informing or withholding consent for treatment from representatives of minors who deny the child’s illness, have a negative attitude toward the proposed treatment methods, or directly question current medical knowledge in this area, special emphasis should be placed on the obligation to provide information. Legal representatives of minors should be fully informed not only about the child’s health status, recommended insulin therapy, and possible complications, but also the consequences of not treating and the risks of using alternative methods. This obligation stems from both the Act on the Professions of Physicians and Dentists and the Patient Rights Act.

Maintaining medical records

One of the physician’s fundamental responsibilities is maintaining medical records, as outlined in Article 41 of the Act on the Professions of Physicians and Dentists. In the event of a lack of cooperation from a minor’s parents, communication problems, or denial of conventional treatment methods, the physician should document the provision of information and the parents’ lack of response. Lack of cooperation by a minor’s legal representatives should be recorded in the individual medical records, in the section concerning the interview and course of treatment. The entry should include the date of the event, a description of the situation, an indication of the lack of cooperation (e.g., refusal of treatment, missed appointments, questioning medical recommendations), and information about the actions taken by the physician or healthcare provider to ensure continued care for the child. The content of the information and instructions provided should be precisely described, particularly regarding the possible health and legal consequences of withholding treatment, and any lack of consent or refusal by the legal representatives should be recorded. An example record might read: “The legal representatives of a minor patient were informed of the need to continue insulin treatment and attend regular follow-up visits. Despite being advised of the risk of health complications, they refused to implement the recommendations. A lack of cooperation from the legal representatives was noted. The patient and parents were informed of the possible health and legal consequences.” Such documentation of the parents’ or guardians’ attitude is essential both for the protection of the physician and the medical entity and for the potential need to take further action, such as notifying the family court or the relevant social welfare institutions.

Obligation to notify the guardianship court

One of the most effective tools in the analyzed case is notifying the guardianship court under Article 572 § 1 of the Code of Civil Procedure [18], according to which: “Anyone who is aware of an event justifying the initiation of ex officio proceedings is obligated to notify the guardianship court of it,” and § 2, which clearly indicates that this obligation rests particularly with organizations and facilities providing childcare, including the physician providing medical care to a minor patient. The guardianship court has a range of means to first verify the minor’s situation. Upon receiving the notification, the guardianship court may take steps to verify the child’s situation and assess the manner in which parental authority is being exercised. Under Article 109 § 1 of the Family and Guardianship Code, the guardianship court may issue appropriate orders if the child’s well-being is at risk. Pursuant to § 2 of this provision, the court may, in particular: oblige the parents and the minor to act in a specific manner, e.g., cooperate with the attending physician, submit periodic treatment reports, or attend follow-up visits (§ 2 Indent 1 of the Family and Guardianship Code); specify which actions cannot be performed by the parents without the court’s consent (Article 109 § 2 Indent 2 of the Family and Guardianship Code), e.g., suspend treatment or change the method of therapy without the court’s consent; subject the exercise of parental authority to the constant supervision of a court officer (Article 109 § 2 Indent 3 of the Family and Guardianship Code), who may monitor the child’s treatment process and provide the court with information on any possible negligence. The court officer, justified under Article 109 § 2 Indent 3 of the Family and Guardianship Code, should be provided with information on the reasons for granting parental access. This applies to cases where the child’s parents have neglected treatment and the resulting consequences. It is possible that the guardian will suffer consequences due to the onset of an illness, which may necessitate complications. This is only possible when certain events likely to occur.

In particularly drastic situations, the court may also restrict parental authority, suspend its exercise, or – in the event of a permanent threat to the child’s well-being, in extreme cases – deprive the parents of their parental authority.

It is worth emphasizing that, pursuant to Article 95 § 1 of the Family and Guardianship Code, parental authority should be exercised in a manner that ensures the child’s proper upbringing, safety, and health protection, and its exercise cannot be contrary to the child’s best interests. Therefore, omitting medical treatment or consciously acting in a manner that endangers the life and health of a minor may be considered an abuse of parental authority within the meaning of Article 109 § 1 of the Family and Guardianship Code.

Notification of a possible crime

A similar obligation arises from Article 304 § 1 of the Code of Criminal Procedure [19]: “Everyone who learns of a crime prosecuted ex officio has a social obligation to notify the prosecutor or the police.” Filing such a report may result in the police or prosecutor initiating preparatory proceedings aimed at determining whether a crime has been committed, identifying the perpetrator, and collecting evidence to prosecute the person responsible. In practice, this means that law enforcement officials have the ability to take protective measures against the child and prevent further violations of their well-being. It should be noted that this only applies in cases of specifically identified crimes** a person may be held liable for failure to report a crime, under Article 240 of the Penal Code [20].

Scope of a physician’s responsibility

A physician may be subject to liability on several independent levels, including:

Each of the above-mentioned proceedings has a separate legal basis and is conducted according to its own rules, and also provides for various measures and sanctions appropriate to a given type of liability. In criminal proceedings, a finding of liability may result in a conviction and the imposition of a penalty, punitive, or probationary measure; in civil proceedings, damages, compensation, or other obligations towards the injured party may be awarded; in disciplinary proceedings, a warning, reprimand, or even termination of employment may be imposed; in professional proceedings, suspension or deprivation of the right to practice the profession by the relevant medical self-government body is possible. It is possible for several or even all of the above-mentioned proceedings to be conducted concurrently to determine a physician’s liability, which will depend on the circumstances of the event giving rise to liability, as well as the severity of the event. The law regulates situations in which, for example, a patient’s death occurs differently, when a permanent health impairment occurs, and yet differently when a patient’s personal rights are harmed. It may also turn out that the proceedings will overlap to some extent – for example, when a claim for damages or compensation is resolved in its entirety in criminal proceedings.

In the case under review, liability should be considered primarily from the perspective of potentially exposing a patient to the immediate danger of loss of life or serious bodily harm, i.e., the crime described in Article 160 § 2 of the Penal Code. Supreme Court case law holds that a physician may also be criminally liable for actions other than diagnostic or medical errors, undertaken or omitted, that expose a person to the immediate danger of loss of life or serious bodily harm. Therefore, ensuring compliance with the physician’s obligations, described earlier in this paper, is particularly important. Answering the question of whether a given person can be held criminally liable for exposure is not easy, as it requires a comprehensive analysis of all the factual and evidentiary circumstances, while the purpose of this study is merely to highlight the most serious potential procedural risks for the physician. In each case, the court makes an assessment based on full evidence, taking into account all circumstances of the case, in particular the type and degree of risk, the consequences of actions taken or omitted, the physician’s conduct, his attitude to professional duties, and compliance with applicable procedures and internal standards.

It should also be noted that a physician may be held criminally liable only to the extent that they failed to exercise the required due diligence, particularly if they failed to fulfill their obligations, such as immediately notifying the appropriate authorities or the guardianship court. However, a physician cannot be required to undertake actions beyond their professional competence, such as independently determining a patient’s location or conducting interventions, provided they have complied with their obligation to refer the matter to the appropriate authorities and acted in accordance with applicable procedures.

Conclusions

An analysis of the physician’s liability regarding the attitudes of legal representatives who hinder or prevent the treatment of a minor patient with type 1 diabetes indicates the need for an integrated legal, ethical, and organizational approach to protecting the child’s well-being. The physician’s responsibility encompasses not only direct actions taken during the provision of healthcare services, but also responding to situations where the child refuses treatment or remains outside medical supervision. Aware of the threat to the minor’s life or health, the physician cannot remain passive – he is obligated to take steps to ensure appropriate care.

If a threat to a child’s health or life is identified, the physician should immediately notify the appropriate institutions, such as the guardianship court, social welfare center, or the police, acting both in the patient’s interest and to fulfil its own statutory obligations arising from, among others, Article 572 § 1 of the Code of Civil Procedure and Article 109 of the Family and Guardianship Code. Upon receiving notification, the guardianship court has a range of protective measures at its disposal, from obliging the parents to conduct themselves in a specific manner and subjecting the exercise of parental authority to the supervision of a court officer, to limiting or depriving them of this authority.

It is also necessary to develop clear guidelines for dealing with cases where a minor patient with a chronic condition refuses treatment or fails to follow treatment recommendations. Appropriate intervention procedures should be developed by medical self-government bodies and relevant health administration authorities to provide physicians with a clear legal and ethical framework for their actions.

Close inter-institutional cooperation is also necessary between primary health care, specialist clinics, social welfare centers, schools, and guardianship courts to ensure continuity of care and effective supervision of the treatment of chronically ill children.

A crucial element of systemic child healthcare is education and monitoring – regular health education for parents and monitoring of the course of therapy for chronic conditions. A common cause of negligence is a lack of knowledge about the consequences of discontinuing treatment and a reliance on alternative medicine methods with unproven effectiveness.

In summary, the child’s best interests should be the primary criterion for assessing the actions of physicians, parents, and public institutions. In such cases, the physician’s responsibility is not limited to the medical sphere but also includes active participation in protecting the minor’s health within the limits set by law and professional ethics.