Working with Children: The Many Layers of Consent to Treat

By Carolyn I. Polowy, JD, General Counsel and Elizabeth Felton, JD, MSW, Associate Counsel

The practice of social work often involves treating and working with children. This Legal Issue of the Month article reviews questions confronting social workers who must obtain consent to treat a child. In order to establish a proper foundation for treatment with a child, to avoid risk and to provide an opportunity for satisfactory professional results, it is necessary to have a sense of what consent is necessary and which resources to consult when there are questions. The issue of whether both parents must consent to a child’s treatment is frequently raised by NASW members and has a many layered response. The second issue of whether a child may consent to his or her own treatment also has many facets. Identifying the rights of the child and parents and considering the levels of risk in providing treatment requires an understanding of the legal landscape that surrounds the issue of consent. This Legal Issue of the Month summarizes key legal issues and provides information to assist in answering questions about obtaining proper consent to begin mental health treatment for a child.

Parental Consent to a Child’s Treatment

A child is often presented for treatment by one parent who may be separated or divorced from the other (second) parent. The second parent may or may not have legal custody (the right to make decisions) or rights to physical custody of the child. The first parent may not discuss the full family picture at the time the child is presented for treatment except, perhaps, to note that the second parent’s insurance is to be billed. The first parent may want the treatment to cover issues that have evolved during the break-up of the marriage and the resulting family separation. When the second parent realizes that the child is in treatment, he/she will often demand access to the child’s records, an opportunity to talk with the social worker about the treatment or the termination of treatment. That scenario provides a plethora of legal issues – some of which could be avoided if several questions were preliminarily asked and answered:

• What is the status of the child and his or her parents/family/guardians?
• What documents exist to establish the status of the family/child/guardianship?
• Will the presenting parent sign a form documenting his/her authority to consent to treatment?

Joint legal custody of children by both parents in a divorce is the rule in some states and may be required by state statute. A chart of child custody laws provided as an Appendix to the Legal Rights of Children Law Note (1), details the many variations that the states utilize to recognize or limit parental custody. For example, there is a presumption of joint custody in Alabama, California, Connecticut, District of Columbia, Florida, Idaho, Louisiana, Maine, Minnesota, Mississippi, Nevada, New Hampshire, New Mexico, Tennessee, West Virginia, and Wisconsin. At the same time these statutes may limit the presumption of joint custody by also requiring that both parents must agree to joint custody or that joint custody must be in the child’s best interest and cannot be granted where there is evidence of child abuse or neglect. In most other states, the court is granted the authority to award joint custody taking into consideration the best interests of the child and the agreement of the parents to joint custody.

The concept of joint custody includes both shared physical and legal (or decision-making) custody, unless limited or modified by a Court order, by state statute or by an agreement between the parents. When a parent brings a child for treatment, even if the second parent does not share physical custody of the child, he/she may have joint legal custody over the child along with the presenting parent, and it is best to presume that is the case absent information to the contrary.

An inquiry by the social worker before treatment begins about the terms of the separation, the divorce decree and the child custody order is the first step to avoiding issues later. This point is summarized in the NASW Law Note, The Legal Rights of Children, : “Because of the wide variation of custody arrangements that courts may impose, the question of whether both parents retain the ability to initiate or terminate mental health treatment for their minor children in joint custody determinations following divorce is of concern to social workers. Joint legal custody allows both parents to be legally responsible for their children. Unless provided otherwise in the custody decree, therefore, both parents would retain the right to make decisions about the child even if joint physical custody is not awarded.” (2)

By requesting a copy of the temporary and/or final custody and divorce decree, the social worker may be able to identify the rights accorded each of the parents regarding the mental health treatment for the child. At a minimum, a review of these documents should establish whether the presenting parent has legal custody regarding the child and can make medical/mental health decisions independent of the other parent. If the documents are not clear and do not establish each parent’s decision-making authority for health care decisions including mental health, requesting written consent from the two parents who each have legal custody is preferred and a better course of action prior to beginning treatment with the child. If unable to obtain a consent form signed by both parents, “… social workers may request that the consenting parent sign a statement confirming that they have the legal right to consent to their children’s treatment without the consent of any other individuals.”(3) All documents related to the issue of custody and consent for treatment should be maintained in the client file.

The social worker assumes a risk of treating the child without full consent if there is no written document signed by the presenting parent that confirms her/his right to obtain mental health treatment for the child without the consent of the other parent. This has both potential ethical and legal concerns. Ethically, the NASW Code of Ethics in Sections 1.03(a) and (c) requires “valid informed consent” for treatment. (4) Substantiating appropriate parental consent as a part of the initial client processing record establishes the basis for proceeding with treatment. In one case where the issue of joint consent was litigated, the Superior Court of Maine “…determined that a social worker who had obtained informed consent from only one parent before treating a child of divorce, had not violated the Maine social work licensing laws which incorporated Sections 1.03(a) and (c) of the NASW Code of Ethics.” (5) However, there are very few published case decisions on point or applicable outside of the state of Maine. The joint written consent of both parents or a statement from the presenting parent stating that he/she has legal authority to make decisions regarding mental health treatment for the child is preferred prior to the commencement of treatment of the child to avoid disputes after treatment has begun.

Children Consenting to Treatment

Another issue that requires a layered analysis is whether and when a child is legally competent to consent to her/his own treatment. This is a legal question with different answers depending on

• The age of the child
• The services requested
• The state in which the child is seeking assistance
• The status of the child as emancipated, mature or being a parent

The age of majority at which an individual is deemed to be sufficiently mature to make adult decisions is 18 years of age in most of the states. Five states (Alabama, Nebraska, Colorado, Mississippi, and Pennsylvania) have statutes that increase the age to 19, 20 or 21. (6) In addition, certain treatment requests, including for mental health treatment, can be made by minors in a number of states. (7) For example, in Maryland, a minor who is 16 years or older has the same capacity as an adult to consent to consultation, diagnosis and treatment of a mental or emotional disorder by a physician, psychologist or a clinic. Discretion is given to the health care provider concerning notice to the parent, guardian or custodian of the minor. (8) In Illinois, any minor who is twelve years or older may request and receive counseling services or psychotherapy of up to five sessions on an outpatient basis without the consent of the parent or guardian, but the parent or guardian will not be responsible for the costs of the services. (9)

Requests for Child’s Records

Responding to a request by the noncustodial parent for the child’s treatment records which should be presented in writing can also pose problems for the social worker. Absent a child custody or divorce decree that confirms the right of access to health records by the requesting parent, it is prudent to establish a proper basis for access before providing the information. The analysis can begin at the federal level with HIPAA (10) and guidance is provided in a question and answer document issued by the Department of Health & Human Services in February, 2014, (11) found athttp://www.hhs.gov/ocr/privacy/hipaa/understanding/special/mhguidance.html, addressing “Health Information Privacy” and information related to Mental Health treatment. As to minor children, the HIPAA guidance provides:

“With respect to general treatment situations, a parent, guardian, or other person acting in loco parentis usually is the personal representative of the minor child and a health care provider is permitted to share patient information with a patient’s personal representative under the Privacy Rule. However, section 164.502(g) of the Privacy Rule contains several important exceptions to this general rule. A parent is not treated as a minor child’s personal representative when: (1) State or other law does not require the consent of a parent or other person before a minor can obtain a particular health care service, the minor consents to the health care service, and the minor child has not requested the parent be treated as a personal representative; (2) someone other than the parent is authorized by law to consent to the provision of a particular health service to a minor and provides such consent; or (3) a parent agrees to a confidential relationship between the minor and a health care provider with respect to the health care service. For example, if State law provides an adolescent the right to obtain mental health treatment without parental consent and the adolescent consents to such treatment, the parent would not be the personal representative of the adolescent with respect to that mental health treatment information.”
http://www.hhs.gov/ocr/privacy/hipaa/understanding/special/mhguidance.html. (2/25/14 (12))

Thus, it is necessary to turn to state law for confirmation of the child’s independent rights to maintain the confidentiality of his or her therapy and mental health treatment records and to confirm whether the parents are barred from access without the consent of the minor. As noted above, the states vary regarding the age of consent and the type of treatment that the child can request without parental consent. The many variations are summarized in the chart linked below (13). In a 2005 case, In the Matter of Berg, the Supreme Court of New Hampshire determined that it is within the trial court’s discretion to determine if it is in the best interests of children to have confidential and privileged therapy records revealed to parents. The Court also concluded that parents do not have the exclusive right to exercise or waive the privilege and the effect on the continuation of the therapeutic relationship had to be considered. (14)

If the social worker denies access to the parent’s request and receives a subpoena for a child’s records, professional liability insurance, such as NASW’s program offered through NASW Assurance Services, Inc. (15), may offer coverage for legal representation to assist in responding to the subpoena. An inquiry to the carrier regarding coverage should be initiated by the social worker as soon as a subpoena is received to assure sufficient time for consultation with an attorney designated by the insurer.

Parental Responsibility for Payment

Another issue that comes up when working with children is determining who has the responsibility to pay for the treatment that will be provided. It is not uncommon for one parent to want the child to participate in therapy while the other parent, whose insurance is presented for coverage, will disagrees and refuse to authorize the treatment. This creates a dilemma for the clinician, especially when the child would benefit from mental health services.

In divorce cases, a parent’s obligation to pay a child’s medical expenses, which include physical and mental health services, is usually established as part of the divorce proceedings and memorialized in the divorce decree or custody order. The court may require one of the parents to have financial responsibility for providing health insurance for the child or the parents may enter into an agreement as to who will cover medical/mental health treatment. This is another reason why it is beneficial for the therapist to have a copy of the divorce decree and custody order.

If the parents are not married or are separated/divorced without a court decree indicating who has responsibility for the child’s health care expenses, the designated responsible payer recommended by an insurance industry model regulations is:

1. custodial parent;
2. spouse of the custodial parent;
3. non-custodial parent; and
4. spouse of the non-custodial parent (16)

These recommendations would have to be followed or adopted by a state’s insurance code or the court to have application in any particular case, but may provide a useful reference if a dispute arises.

In certain situations where the minor is legally able to authorize his/her own treatment, the parent or guardian may not be legally responsible for paying for it. It also becomes a privacy issue for the minor who may not want a parent to know about the services they are receiving. (17) Since it can be difficult to determine who is responsible for the payment of mental health services provided to a minor, it is suggested that in addition to appropriate consent forms, clinicians require parents to sign a financial responsibility agreement before providing services to the child.

Conclusions

Working with children requires an understanding of when parental consent is required and whether both parents and, in some cases, the child, should be consenting to treatment. Being familiar with the consent laws of the state in which the social worker practices is key to avoiding issues. Requesting the written consent of both parents to the child’s treatment also helps to avoid complaints and problems. At a minimum, the presenting parent should provide written assurance that he/she has the legal right to seek treatment for the child. One of the parents should also confirm financial responsibility for the treatment. Disposing of these important issues and questions at the beginning of treatment can greatly limit friction going forward and should be a part of preliminary parent/client discussions.

©February 2014. National Association of Social Workers. All rights reserved.
Re-publication of this article or portions thereof is by permission only.

References/Resources

1. Polowy, C. and Morgan, S., et al., Legal Rights of Children, Appendix A, pp.81-85, NASW Law Note, NASW Press, 2012.
2. Ibid., p.26
3. Id., p.27
4. NASW Code of Ethics, NASW Press, 2008.
5. Legal Rights of Children, at p.27; Andrews v. Board of Social Work Licensure, 20005 WL, (Me. Super. Ct. 2005).
6. Legal Rights of Children, at p. 3; see also, Appendix A: Alabama and Nebraska – Age 19; Colorado, Mississippi, and Pennsylvania – age 21.
7. “Also, 23 jurisdictions allow minors in need of mental health services to agree independently to such services without parental knowledge or consent, the age of consent for such services varies.” Legal Rights of Children at p. 5; See also Appendix A: Minors’ Ability To Make Medical Decisions, pp. 41-53.
8. See, Md. Code Ann., Health –Gen. IISec20-104(a); and a summary in “Maryland Minor Consent Laws,” American Academy of Pediatrics, Adolescent Provider Toolkit, Maryland_minor_consent_laws_10.26.12 docx.
9. See, Consent by Minors to Medical Procedures Act, 410 ILC 210/1, et seq.; and “Consent By Minors For Medical Treatment,” issued by Illinois Hospital Association, last updated August 10, 2010.
10. Health Insurance Portability and Accountability Act of 1996 (HIPAA), 45 CFR Sec. 164.502.
11. HIPAA Privacy Rule and Sharing Information Related to Mental Health, Health Information Privacy, U.S. Dept. of Health and Human Services, found at: http://www.hhs.gov/ocr/privacy/hipaa/understanding/special/mhguidance,html.
12. Ibid.
13. See, Legal Rights of Children, Appendix A, Minors’ Ability To Make Medical Decisions, pp.41-53.
14. In Matter of Berg, 886 A. 2d 980 (N.H. 2005); see also, “The Berg Case: Parents right to access medical records v. Child’s right to privacy” at: http://www.nhfamilylawblog.com/2010/07/articles/parenting-rights-responsibilit/the-berg-case-parents-right-to-access-medical-records-v-childs-right-to-privacy/
15. See. Assurance Services, Inc., at: http://www.naswassurance.org/malpractice/malpractice-tips/responding-subpoena/
16. National Association of Insurance Commissioners; Coordination of Benefits Model Regulation; Model Regulation Service – October 2013, Section 6 (D)(2)(b)(iv), pp. 120-7 to 120-9.
17. For example, in Maryland, a minor who is 16 years old or older has the same capacity as an adult to consent to consultation, diagnosis, and treatment of a mental or emotional disorder by a physician, psychologist, or a clinic but the parent, guardian, custodian, or spouse of a parent is not responsible for the costs of that treatment unless they consented to the care. Md. Code Ann., Health-Gen. § 20-104(a)(1)(c).