Medical/Mental Health Care
Consent to Treatment
Confidentiality/Disclosure
1
Medi-Cal:
• The majority of children in foster or out-ofhome 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.
2
Who Can Consent to Medical Care
for Children?
3
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
4
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.
5
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).
6
Caregiver’s Affidavit:
Family Code § 6550
• 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.
7
Third Party Consent:
Family Code § 6910
• 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.
8
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?
9
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.
10
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?
11
Juvenile Court:
Welfare & Institutions Code § 369
• 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
12
Emergency Care for a Child:
• 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
13
Children’s Right to Consent
to Medical Treatment
NO AGE REQUIREMENT
14
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.
15
Informed Consent & Minor Consent
Services (Continued)
•
•
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
16
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.
Sexual Assault: Treatment & Diagnosis
Family Code § 6928
Parental Notification Shall be Attempted
• 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.
18
Pregnancy: Prevention, Treatment, or
Termination
Family Code § 6925
• 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.
19
School Release for Medical Services:
Education Code § 48205; 66 Ops. Cal. Atty. Gen. 244 (1983); 87 Ops. Cal.
Atty. Gen. 168 (2004).
• 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.
20
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?
21
Children’s Right to Consent
to Medical Treatment
AGE 12+
22
Infectious, Contagious, or Communicable
Diseases: Prevention, Diagnosis, and Treatment
Family 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.
23
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?
24
Rape Treatment:
Family Code § 6927
• A child 12+ may consent to rape treatment.
– There is no requirement that the provider attempt
to notify the parent.
25
HIV/AIDS:
• 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.
26
HIV/AIDS (continued):
Los Angeles County Juvenile Court Rule 7.6
• 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.
27
Alcohol or Drug Abuse Treatment:
Family Code § 6929
Note: 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.
28
Children’s Right to Consent
to Medical Treatment
AGE 15+
29
Self-Sufficient Child:
Family Code § 6922
Parent may be notified
• 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.
30
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?
31
MENTAL HEALTH
TREATMENT
32
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
33
Minor’s Right to Consent to Mental Health
Treatment
Family Code § 6924
Parental 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.
34
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.
35
DISCLOSURE
36
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
37
Who Can Consent to Disclosure?
General Rule: The decision to disclose is made by the child’s legal representative. Civ Code
56.11(2).
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.
•
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.
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.
38
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
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.
Attorney is a
allowed 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).
Caregiver must
update child’s
health care
passport. Welf. &
Inst. § 16010(e)
Misdemeanor for
improper
disclosure. Cal.
Civ. Code § 56.36
Welf. & Inst. Code
§ 827(b)(2).
39
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.
•
40
DEFINITIONS
41
Medical Care:
Family Code 6902
“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.
42
Mental Health Care:
Family Code 6924
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.
43
If you have questions regarding issues that were
not included above, contact
(213) 368-6010
www.kids-alliance.org
November 2011