Divorce, Minors, and the Impact of Consent for Treatment
JAMI GURSKY, ESQ.
Cole, Scott & Kissane - Ft. Lauderdale, FL

Psychiatrists often encounter circumstances where the parents of a minor patient are in the midst of a divorce or legal custody battle and cannot agree on a course of psychiatric treatment for their child despite the need for treatment. When this happens, the psychiatrist must decide what consent is needed in order to treat the patient and who can legally provide it.

A common scenario exists when only one parent requests/authorizes treatment for his or her minor child and that parent is currently in the midst of a divorce or legal custody battle, or has completed the process. In this situation, the physician must ascertain which particular parent has the appropriate legal custody of the minor at that time and is therefore authorized to make treatment decisions.

Determining Whose Consent Is Required

State law varies considerably with respect to divorce and child custody issues.1  For example, there is a presumption of joint custody in a number of states, while in other states, the court is given the authority to award custody, taking into consideration the best interests of the child and whether there is an agreement of the parents, such as a parenting plan in place. Individuals granted custody of the child are generally authorized to consent to medical decisions. However, some parenting plans or court orders provide specificity with which a parent can make certain decisions. For example, one parent may have decision-making with respect to school issues while the other may have decision-making abilities for medical and/or psychiatric care.

INSession_Summer2016_ConscentSmallIf you are treating a minor patient who has had a guardian ad litem or other appointed legal guardian, the psychiatrist should examine the relevant court order to determine the parameters surrounding the guardian’s authority prior to beginning treatment. If you have questions about who has the ability to make decisions on the child’s behalf, it is best to consult with an attorney to review the document.

Keep in mind that most states have statutes that give minors the right to consent to treatment in specific situations; thus, parental consent may not be required.2  For example, although not an exhaustive list, most states will allow minors to consent to treatment for issues regarding alcohol/substance use, mental health care, or sexually transmitted diseases (including HIV/AIDS). In addition, “emancipated minors” as defined by state law are also generally permitted to consent on their own behalf. Typically, emancipated minors are of a certain age, who have married, had a child, joined the military, or petitioned the court for “emancipated status.” It is important that you understand your state laws regarding what circumstances and patient age permit a minor to consent on his or her own behalf.

What Should You Do if a Parent Requests Records?

It is not uncommon for one parent to be involved in treatment while the other has no involvement but requests the records. The requesting parent may or may not have the authority to do so. Further, the records may have documentation that one parent can use against the other or against the child (or there could be documentation of abuse by one of the parents). Releasing records in these situations could be detrimental to the patient’s well-being and could potentially create issues that involve you in a legal dispute between the parties, including being called to testify at a hearing or trial. Thus, it is important to obtain advice before releasing the records.

Reducing Liability

In order to reduce liability exposure before accepting a patient for treatment, the psychiatrist should first inquire as to the status of the separation, divorce judgments, any child custody orders, and whether there is a parenting plan, to gauge whether one or both parents retain the right to consent for treatment of the minor child.3   By reviewing the language of these documents, the psychiatrist should be able to assess whether the requesting parent has legal custody concerning the minor and can request psychiatric treatment for the child, or whether additional information is needed. If these documents are not attainable, psychiatrists may insist that the requesting parent execute an affidavit confirming that they have the legal right to consent to their minor’s treatment without the consent of any other individuals.4  When questions regarding authority to consent arise in these types of cases, it may be prudent to obtain the advice of an attorney or risk management professional.

Emergency Care and Treatment

There are situations where a true emergency exists and consent cannot be obtained. If there is a situation where a delay in treatment is life-threatening, consent is presumed. As soon as practicable and going forward, however, consent should be obtained by the legally responsible party.

Privacy Concerns and Patient Records

In psychiatry, the right to consent and the right to privacy concerning health records are interconnected. Typically, a court order will specify whether the requesting parent has the right to access the health records. Without such court order, the physician should follow state law to determine the minor’s independent rights to maintain the confidentiality of mental health treatment records and to confirm whether the parents are barred from access without the consent of the minor.

The Health Insurance Portability and Accountability Act (“HIPAA”) states that “a health care provider is permitted to share patient information with a patient’s personal representative under the Privacy Rule.”5  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.6  State laws may be more stringent than HIPAA; therefore, be aware of any applicable laws concerning this issue.

Summary

Treating minor patients whose parents are going through a divorce or legal custody dispute requires an understanding of what consent is required in order to rightfully commence psychiatric treatment. It is important to familiarize yourself with your own state’s corresponding consent laws. This knowledge is paramount in avoiding malpractice liability. Should you have further questions, it is recommended that you consult your risk manager or healthcare law attorney.

GURSKY

About the Author

Jami Gursky is a trial lawyer with the firm’s Fort Lauderdale East office. She practices in the area of medical malpractice defense, premises liability, administrative actions, vehicle negligence, trucking accident defense, liquor liability, mass tort litigation, catastrophic injury, and wrongful death cases. Ms. Gursky received her Juris Doctorate from Nova Southeastern University and a Bachelor of Science degree from Florida State University, with a major in Psychology and a minor in Criminology.

Ms. Gursky is a Martindale-Hubbell rated A.V. attorney. She is a member of the Florida Bar, Young Lawyers Division of the Dade County Bar Association, and the Dade County Bar Association. In 2008, she was selected as one of the Legal Elite in the State of Florida by Florida Trend Magazine. Also, in 2008, Ms. Gursky was the recipient of the “Put Something Back” Pro Bono Service Award, and in 2010, she was the recipient of a child advocacy award from Lawyers for Children of America. Ms. Gursky is admitted to practice before all county and circuit courts in the State of Florida and the United States District Court for the Southern, Middle and Northern Districts of Florida.

“Family Law in the Fifty States: Case Digests”, American Bar Association, Family Law Quarterly, Vol. 4, No. 4, 2014.

2 National District Attorneys Association, Minor Consent to Treatment Laws, January 2013.

3 Carolyn I. Polowy, JD, and Elizabeth Felton, JD, MSW, Working with Children: The Many Layers of Consent to Treat, NASW Law Note, NASW Press, 2014.

4 Id.

5 Health Insurance Portability and Accountability Act of 1996 (HIPAA), 45 CFR Sec. 164.502.

6 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.

RETURN TO TOP