Members frequently raise questions regarding the treatment of minors. This article will explore the various circumstances in which minors may receive treatment, both with and without parental consent, and provide guidelines for the therapist to follow to make the most appropriate decisions.
California law authorizes the parent(s) or guardian of a minor to give informed consent for most medical decisions, including mental health treatment, on behalf of the minor. However, there are exceptions, and there are certain types of medical care, including mental health treatment, for which minors may themselves consent. Before the exceptions are addressed, it is important to understand the various situations in which consent for treatment can be made by parents and others.
Parents with an
Parents who have
It is also important to note that a court may award joint legal custody without awarding joint physical custody. Therefore, the fact that a child lives with only one parent does not mean that the other parent does not have the authority to make health care decisions for the child.
If the parents have joint legal custody, the parents share the right and the responsibility to make health care decisions for their child (Family Code §3003). This means that either parent acting alone may consent to mental health treatment, unless the order of joint legal custody has language to the contrary. For example, the order may require the consent of both parents, or an agreement between the parents prior to the consent being given for certain, or all, medical decisions (see Family Code §3083). If parents with joint legal custody are unable to agree about the treatment that should be provided, it may be necessary for the parent seeking the treatment to obtain a court order resolving the matter before the treatment is provided. Generally, from a clinical perspective, the ideal situation is to have the support of both parents in the treatment.
Situations may also arise in which one divorced parent with joint legal custody withdraws his or her consent after treatment has begun. These cases are particularly difficult for therapists. Clearly the clinical implications of continued treatment should be addressed first, and if necessary, the therapist should seek clinical consultation. If, from a clinical perspective, the therapist believes that continued therapy is needed, or that a change in therapist would be disruptive or harmful to the minor patient, the therapist must determine whether he or she is legally permitted to continue the treatment.
Generally, if there is joint legal custody and one of the parents continues to consent to the therapy, the therapist may continue to treat the minor. If the order of joint legal custody required that both parents consent to the therapy, and one of the parents withdraws his or her consent after treatment has begun, one could argue that if a decision to commence treatment could not be made unilaterally, the decision to terminate the treatment also cannot be made unilaterally. If the order of joint legal custody does not require that both parents consent to the treatment, then the therapist may continue to treat with the consent of one parent even if the other parent withdraws or refuses to give consent.
If a parent has sole legal custody of the child, that parent has the right to unilaterally make health care decisions for the child (Family Code §3006). Should the parent with sole legal custody refuse or withdraw consent, the therapist should not treat the minor.
Treatment of a
Child With a Terminally Ill, Divorced Parent
Minors with Unmarried
Minors with Minor
Parents With Children
Under the Jurisdiction of the Court But Living at Home
the Consent of an Unemancipated Minor
In this Section mental health treatment or counseling services is defined as the provision of mental health treatment or counseling on an outpatient basis by any of the following: (1) a governmental agency; (2) a person or agency having a contract with a governmental agency to provide the services; (3) an agency that receives funding from community united funds; (4) a runaway house or crisis resolution center; or (5) a professional person. "Professional person" includes licensed marriage and family therapists.
This Section provides, in part, that a minor who is at least 12 years of age (and in the opinion of the attending professional person, is mature enough to participate intelligently in the services) may consent to mental health treatment or counseling on an outpatient basis if either of the following requirements are satisfied:
The law also requires that the mental health treatment or counseling of a minor include involvement of the minor's parent or guardian unless, in the opinion of the professional person who is treating or counseling the minor, the involvement would be inappropriate. The professional person who is treating or counseling the minor must 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. If, in the professional person's opinion, it would be inappropriate to contact the minor's parent or guardian, the professional person must state in the minors record why contact would be inappropriate.
This section also provides that the minor's parents or guardian are not liable for payment for mental health treatment or counseling services provided, unless the parent or guardian participates in the mental health treatment or counseling, and then only for services rendered with the participation of the parent or guardian. Therefore, the provider would have to seek payment for the services from the minor.
This information is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.
The following are a few situations to contemplate with regard to consent for the mental health treatment of minors. Read each example and apply the rules listed above.
(1) A stepparent has authority to make health care decisions for a minor only if he or she has legally adopted the minor. The therapist should seek the consent of the biological father, and/or biological mother, depending on the language in the custody order.
(2) Foster parents do not generally have the right to make health care decisions for their foster children, with the exception of ordinary medical and dental treatment. The therapist should seek consent from the legal guardian of the child. If the child is a ward of the court, an agent of the court, such as a social worker, may consent to the treatment.
(3) The therapist should request a copy of the custody order, for his or her records, prior to commencing treatment. The custody order should assist the therapist in determining who has the authority to make health care decisions on behalf of the child. Keep in mind that legal custody determines who has the authority to consent to treatment.
(4) The biological mother has the authority to make health care decisions for a minor, whether or not she is married.
(5) The therapist must first find out whether the minor meets the criteria established in Section 6924 of the Family Code (listed above) in order to determine whether the minor has the authority to consent to her own treatment. If, in the therapists opinion, the minor meets the criteria, he or she must then determine whether it would be appropriate for the parents to participate in the therapy and document his or her records accordingly.
(6) Currently, MFT Interns, working in private practice, cannot treat minors without parental consent. Please see footnote on AB2161.
(7) Emancipated minors have the capacity to consent to medical, dental, or psychiatric care, without parental consent, knowledge, or liability. Therefore, an emancipated minor has the authority to consent to mental health treatment, and also assumes full responsibility for the cost of the treatment as well.
(8) The grandmother may meet the criteria set forth in Section 6550 of the Family Code. If the minor is living in her home, and signs the appropriate affidavit, she would have the right to make health care decisions on behalf of the granddaughter.
(9) Generally, if there is joint legal custody and one of the parents continues to consent to the therapy, the therapist may continue to treat the minor (see section on parents who have divorced for further information).
(10) The therapist must first find out whether the minor meets the criteria established in Section 6924 of the Family Code (see section on treatment with the consent of an unemancipated minor) in order to determine whether the minor has the authority to consent to his own treatment. In this case, it appears that the minor does meet the criteria in that he is of the appropriate age and is also an alleged victim of child abuse. The therapist must then determine whether it would be appropriate for the parents to participate in the therapy and document her records accordingly.
This article appeared in the September/October 2000 issue of The California Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.