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Medical/Mental Health Care

Consent to Treatment

Confidentiality/Disclosure

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• The majority of children in foster or out-of-home care qualify for Medi-Cal.

• Medi-Cal may require a pre-authorization request called a Treatment Authorization Request (TAR) for services beyond ordinary medical care. –Medi-Cal is required to send a Notice of Action

either approving or denying the TAR. There is a formal appeals process for treatment denials.

Medi-Cal:

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Who Can Consent to Medical Care for Children?

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Definition of Parent/Guardian

• “Parent or guardian” means either parent if both parents have legal custody, or the parent or person having legal custody, or the guardian, of a minor. Family Code § 6903

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Parents: Family Code § 6903, 6920, 6921

• Both parents have the right to make medical decisions unless a court has specifically limited the rights of one or both parents.

• Exception: If the law entitles a child to consent to treatment, a parent cannot overrule the child’s decision.

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Legal Guardians: Probate Code §§ 2353 & 2356

• Legal guardians generally have the same authority as parents to grant medical consent, with certain restrictions.– Surgery requires the consent of any child 14 years or

older, or the court’s consent.– A guardian can authorize surgery if necessary to

prevent serious bodily injury or death. – A legal guardian may not consent to:

• Placement of a child in a mental health facility; experimental drugs; convulsive treatment; or psychosurgery (Cal. Code Reg. 845).

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• Adult Relative: An adult relative who is providing 24-hour care may consent to medical treatment as if they were a legal guardian.

• Non-relative Caregiver: A non-relative caregiver may only consent to school related medical care, such as: well-child exam for school enrollment or immunizations.

Note: A caregiver’s affidavit does not allow the caregiver to consent to psychotropic medication, enroll a child in California Children’s Services, or add the child to their private health insurance.

Caregiver’s Affidavit: Family Code § 6550

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• A parent or legal guardian may give any adult written authority to consent to a child’s medical care. – The third party’s authority to consent is limited to

the treatment authorized in writing. – The Third Party Consent allows non-related

caregivers to consent to medical care for children without obtaining legal guardianship.

– A notarized letter can serve as third party consent.

Third Party Consent: Family Code § 6910

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Hypothetical

• An aunt takes her niece to a clinic. What medical care can she consent to with:– A caregiver’s affidavit?– Legal guardianship?

• A family friend takes a child to a clinic. What medical care can she consent to with: – A caregiver’s affidavit?– A third party consent?– A notarized letter?

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Foster Parents: • Relative Caregiver/Foster Parent: Same rights as a legal

guardian under caregiver affidavit law. Fam. Code § 6550• Non-relative Foster Parent: May only consent to ordinary

medical treatment, including: – Immunizations– Physical examinations – X-Rays. Health & Safety Code § 1530.6

• Voluntary Placement agreement: Allows the foster parent to consent to those items agreed to in writing by the parent. The agreement serves as a Third Party Consent.

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Hypothetical

• Grandmother, a foster parent, takes her grandson to the doctor. He has tonsillitis.– Can she consent to antibiotics?– Can she consent to a tonsillectomy?

• Mary, a non-relative foster parent, takes Sarah to the doctor. She has tonsillitis. – Can she consent to antibiotics?– Can she consent to a tonsillectomy?

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• For children in foster care or on probation, court authorization is required for anything beyond ordinary medical care. Examples:– Surgery and other invasive procedures– Psychotropic medication. L.A. Juv. Court Rule 7.7– Life sustaining medical treatment. L.A. Juv. Court

Rule 7.5

Juvenile Court: Welfare & Institutions Code § 369

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• What is an emergency medical condition?– An emergency medical condition is one which “required immediate

treatment for the alleviation of severe pain or an immediate diagnosis and treatment of an unforeseeable medical, surgical, dental, or other remedial condition or contagious disease which is not immediately diagnosed and treated, would lead to serious disability or death. Welf. & Inst. Code § 369

• When is emergency treatment authorized absent consent from an adult?– Generally: A provider shall not be liable for performing a procedure on

a minor if the provider reasonably believed that the procedure should be undertaken immediately and there was insufficient time to obtain consent. Bus. & Prof. Code § 2397.

– For children in foster care: After making reasonable efforts to contact the parent or if a parent refuses/cannot be reached/cannot consent, a social worker can consent to treatment for children who• Have been detained and need immediate treatment;• Are dependent and need emergency care. Welf. & Inst. Code § 369

Emergency Care for a Child:

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Children’s Right to Consent to Medical Treatment

NO AGE REQUIREMENT

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Informed Consent & Minor Consent Services

• Under the doctrine of informed consent, a doctor has a duty to disclose:– The nature of the procedure; the risks, complications, and expected

benefits or effects; any alternatives to the treatment and their risks and benefits; any potentially conflicting interests the physician may have.

• Explain in terms that are understandable to the child. • What is required to consent?

– Competency: The ability to understand the nature and consequences of the illness, the proposed treatment, alternatives to the treatment, and the ability to make a reasoned decision in this regard. UCLA Medical Center, Patient Rights and Organizational Ethics.

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• Key considerations: – Does the minor understand the nature of the treatment, its benefits and risks? – Does the minor appreciate the potential consequences of the treatment and of

foregoing treatment? – Can the minor make a reasoned decision based on the information provided? – Is the proposed treatment for the benefit of the minor and not another person? – Is the proposed treatment medically necessary?– Does the treatment involve complex, high-risk medical care?

• When it is determined the minor cannot give informed consent, the health care provider does not have the authority to contact the child’s parents. Contact your legal counsel instead.

Source: California Healthcare Association, Minors and Health Care Law

Informed Consent & Minor Consent Services (Continued)

Minor Consent Services• Children can apply for separate coverage under the

Medi-Cal program for the confidential services discussed below.

• Many of these services are covered under the Family Planning Access to Care and Treatment (PACT) Program. Call 1-800-942-1054 to find the closest provider.

• For services not included under Family PACT, youth may need to seek treatment at a free clinic or program that specializes in adolescent care.

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• A child victim of sexual assault may consent to diagnosis and treatment related to sexual assault. – Sexual assault includes: Acts of oral copulation, sodomy, and

other crimes of a sexual nature.

• The professional providing medical treatment shall attempt to contact the child’s parent/guardian. They must note the date and time of the attempted contact and whether the attempt was successful unless the professional reasonably believes the child’s parent/guardian committed the sexual assault on the minor.

Sexual Assault: Treatment & Diagnosis Family Code § 6928Parental Notification Shall be Attempted

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• A child of any age has the right to consent to all medical care related to the prevention or treatment of pregnancy.

• A child of any age has the right to terminate a pregnancy or carry it to term without notification or consent by either a parent or court. American Academy of Pediatrics v. Lundgren, 16 Cal. 4th 307 (1997).

• A child may not consent to be sterilized without the consent of a parent or guardian.

Pregnancy: Prevention, Treatment, or Termination Family Code § 6925

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• Schools–Must excuse minors during the school day for

confidential minor consent medical care. – Cannot adopt a policy that requires parent consent

or notification when the minor is excused from school for confidential medical care.

School Release for Medical Services: Education Code § 48205; 66 Ops. Cal. Atty. Gen. 244 (1983); 87 Ops. Cal. Atty. Gen. 168 (2004).

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Hypothetical

• A sixteen-year-old child in foster care wants to terminate a pregnancy. –Who has a right to consent to the procedure?–Who should be informed?– Does her age matter?– Can she leave during the school day to do so?

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Children’s Right to Consent to Medical Treatment

AGE 12+

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Infectious, Contagious, or Communicable Diseases: Prevention, Diagnosis, and TreatmentFamily Code § 6926

• A child who is 12+ may consent to medical care related to the diagnosis or treatment of an infectious, contagious, or communicable disease if the disease or condition is one that is required by law or regulation to be reported to the local health officer.

• Effective Jan. 1, 2012, A child who is 12+ may consent to medical care related to the prevention of a sexually transmitted disease.

• The minor's parents or guardian are not liable for payment for medical care provided.

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Hypothetical

• A fifteen-year-old boy seeks treatment for a STI. –Who consents to his treatment?–Who has a right to know about his diagnosis and

treatment?

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• A child 12+ may consent to rape treatment. – There is no requirement that the provider attempt

to notify the parent.

Rape Treatment:Family Code § 6927

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• General Rule– HIV/AIDS status is confidential. Welf. & Inst.

Code § 827; Health & Safety Code § 120980.

• Child Age 12+– A competent child 12+ may consent to medical

treatment for HIV/AIDS. Fam. Code § 6926; Health & Safety Code § 121020

– Consent of the child is required before disclosure regarding their HIV/AIDS status. Los Angeles County Juvenile Court Rule 7.6.

HIV/AIDS:

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• Court Order Required for Testing – For a child under 12, a court order is required for HIV

testing when a parent or guardian refuses consent or there is no parent or guardian capable of consent.

– Child is 12+ and incompetent to give authorization. – Child is 12+ and refuses to give authorization.

• Disclosure– Child 11 and under: Court must be provided with results in

sealed envelope marked “confidential.” Court may order release to other pertinent parties.

– Child 12+: Child must consent to disclosure or court order must be made to release.

HIV/AIDS (continued):Los Angeles County Juvenile Court Rule 7.6

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Alcohol or Drug Abuse Treatment: Family Code § 6929Note: parental notification may be required

• A minor who is 12 years of age or older may consent to medical care and counseling relating to the diagnosis and treatment of a drug- or alcohol-related problem.

• A treatment plan shall include involvement of the child’s parent or guardian unless it is determined by the professional person treating the child to be inappropriate.

• The treatment professional must make a record of any contact attempted, its success or failure, and/or the reason why the contact would be inappropriate.

• Must have consent of minor 12 or older to drug test.

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Children’s Right to Consent to Medical Treatment

AGE 15+

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• A child 15+ may consent to medical care if: – S/he is living separate and apart from the child’s parents or

guardian, with or without consent of a parent or guardian, and regardless of the duration of the separate residence.

– Child is managing his/her own financial affairs, regardless of the source of the child’s income.

• Parent/guardian is not liable for the cost of medical or dental care for a self-sufficient minor.

• Parents may be notified of treatment, but child may still obtain treatment regardless of their opinion.– Contact legal counsel prior to disclosure.

Self-Sufficient Child:Family Code § 6922Parent may be notified

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Hypothetical

• A 16-year-old boy lives on the street. He has tonsillitis and needs an anti-biotic. –Who can consent to his care?– Are his parents liable for his medical care?

• A teen mother and her baby are both sick. The mother is given antibiotics for her baby. Can she consent to her care as well?

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MENTAL HEALTH TREATMENT

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Consent to Mental Health Treatment May Be Given By:

• A parent or legal guardian, if available and capable of authorizing treatment; or

• The court, if a parent is unavailable or incapable of authorizing treatment; or–Welf. & Inst. § 369(b)

• A relative who is caring for the child under a permanent plan established by the court. –Welf. & Inst. Code § 366.27

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Minor’s Right to Consent to Mental Health TreatmentFamily Code § 6924Parental Notification May be Required

• A child who is 12+ may consent to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if both of the following requirements are met:– The child, in the opinion of the attending professional, is mature enough to

participate in services; and– The child

• Presents a threat of harm to himself or others absent treatment; or • Is the alleged victim of incest or sexual abuse.

• The provider shall include involvement of the minor's parent or guardian unless, in their opinion, parental involvement would be inappropriate. The professional person who is treating or counseling the minor shall state in the client record whether and when the person attempted to contact the minor's parent or guardian, and whether the attempt to contact was successful or unsuccessful, or the reason why, in the professional person's opinion, it would be inappropriate to contact the minor's parent or guardian.

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Consent for Special Types of Mental Health Treatment:

• Voluntary Hospitalization and Inpatient Mental Health Treatment – The court, with the child’s consent after consulting his/her attorney.

Welf. & Inst. § 6552

• Involuntary Hospitalization – The Court may order a dependent child to be held for 72 hours if the

child is gravely disabled or a danger to himself or others. Welf. & Inst. §§ 6550, 6551, 5150.

• Psychotropic Medication – The court or a parent if the court allows the parent to do so. Welf. &

Inst. Code § 369.5(a). – A child age 12+ who is not gravely disabled may object to

psychotropic medication. Welf. & Inst. § 5150.

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DISCLOSURE

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Disclosure• General rules:

– Dependency proceedings are confidential. Welf. & Inst. Code § 827-828.3.

– Medical information is confidential. Civ. Code § 56 et seq.

• Who can consent to disclosure?– Depends on the stage of the case

• Types of disclosure– DCFS to Medical Staff– DCFS to Caregiver – Medical staff to DCFS– Medical Staff to Caregiver – Disclosure to others

• Special Disclosure Issues

Who Can Consent to Disclosure?

Stage of the Case Who Consents to Disclosure?

Forensic Exam • Parent, as legal representative. Civ. Code § 56.11(2).

Detention/Arraignment: • Determines whether the child should remain/be

detained; court advises parent(s) of their rights. Welf. & Inst. § 315; 316.

• Counsel will be appointed for all parties. Welf. & Inst. Code § 317(f).

• Parent generally still has legal custody, so parent still consents. Civ. Code § 56.11(2).

• The Court may limit a parent’s right to make medical decisions.

Adjudication: • Determines whether the child is a person described by

Section 300. Welf. & Inst. § 355. • Child may be removed from physical custody of the

parent at this stage. Welf. & Inst. Code 361.1.

• Counsel has been appointed and is available for consultation. Welf. & Inst. Code § 317(f).

• The Court may limit a parent’s right to make medical decisions.

Disposition:• Determines whether the child should be released to the

parent if still detained and the type of services to be made available. Welf. & Inst. § 355.

• Court makes a legal finding the child is a dependent of the court.

• Counsel has been appointed and is available for consultation. Welf. & Inst. Code § 317(f).

• The Court may limit a parent’s right to make medical decisions.

• The child’s legal representative consents to disclosure.

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General Rule: The decision to disclose is made by the child’s legal representative. Civ Code 56.11(2).

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Types of Disclosure Permitted by Law

DCFS to Medical Staff

DCFS to Caregiver

Medical staff to DCFS or Caregiver

Disclosure to others

Child’s Attorney

A child’s case file may be inspected by members of multidisciplinary teams, persons, or agencies providing treatment or supervision of the minor. Welf. & Inst. Code § 827(a)(1)(k).

Health and Education Passport: Provided to caregiver. Welf. & Inst. § 16010(c); MPP § 31-405.

May disclose to a social worker or any other person who is legally authorized to have custody or care of a minor for the purpose of coordinating health care . Civ. Code § 56.103

Caregiver must update child’s health care passport. Welf. & Inst. § 16010(e)

Medical information that is properly disclosed shall not be further disclosed by the recipient unless the disclosure is for the purpose of coordinating care and the disclosure is authorized by law. Civ. Code § 56.103.

Misdemeanor for improper disclosure. Cal. Civ. Code § 56.36 Welf. & Inst. Code § 827(b)(2).

Attorney is aallowed access to health records “for the sole purpose of fulfilling his or her obligation to provide legal representation of the child. Welf. & Inst. 317(f).

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Special Disclosure Issues

Issue Law

Mental Health • Must have written authorization by the child’s parent or guardian, conservator, attorney, or by a child 12+;

• Information disclosed is to parent/guardian and does not concern minor consent services;

• Disclosure must not harm the child;• Disclosure is between two mental health professionals in the course

of providing care to the child; • Provider determines disclosure to DCFS is necessary and does not

include psychotherapy notes. Children’s Law Center, Memo dated January 3, 2011.

Minor Consent Services • Medical information regarding services which minors may consent to may not be disclosed without consent of the minor. Civ. Code 56.11(c)(1).

HIV/AIDS • Child 11 and under: Court must be provided with results in sealed envelope marked “confidential.” Court may order release to other pertinent parties.

• Child 12+: Child must consent to disclosure or court order must be made to release. Los Angeles Juvenile Court Rule 7.6.

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DEFINITIONS

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“Medical care” means X-ray examination, anesthetic, medical or surgical diagnosis or treatment, and hospital care under the general or special supervision and upon the advice of or to be rendered by a physician and surgeon licensed under the Medical Practice Act.

Medical Care:Family Code 6902

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Outpatient Mental Health Care refers to the provision of mental treatment or counseling on an outpatient basis.

Residential Shelter Services refers to the provision of residential and other support services to children on a temporary or emergency basis in a facility that services only children.

Mental Health Care:Family Code 6924

If you have questions regarding issues that were not included above, contact

(213) 368-6010

www.kids-alliance.orgNovember 2011