Guidelines For The Treatment Of Minors By Bonnie R. Benitez, Attorney Previously employed with CAMFT The Therapist (September/October 2000)

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 Intact Marriage
If the parents are married, not separated, either parent acting alone may consent to mental health treatment for the child. However, depending on the circumstances, it may be prudent to seek the consent of both parents in an effort to include both parents in the therapeutic process and have the support of both parents in the therapy with the minor.

Parents who have Divorced
It is critical that a therapist, faced with a separated or divorced parent who is seeking treatment for his or her child, request a copy of the custody order prior to the treatment of the minor. The custody order will provide the therapist with information as to the status of the legal custody of the minor, as well as any specific language that may impact a parent’s right to consent to mental health or other medical treatment. A therapist puts him or herself at risk if he or she relies on the verbal assurances of a parent. Quite frankly, parents may lie to therapists with regard to custody issues when they want to place a child in therapy. However, it is the therapist who is vulnerable should he or she proceed with the treatment of a minor without the appropriate consent.

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
The law provides for special circumstances in cases where a parent is terminally ill. If a “custodial parent” has been diagnosed with a terminal condition, as evidenced by a physician’s declaration, the court, in its discretion, may appoint the custodial parent and a person nominated by the custodial parent as joint guardians of the minor. In such a circumstance, both of the joint guardians must concur to exercise their authority. However, this appointment shall not be made over the objection of a noncustodial parent without a finding that the noncustodial parent's custody would be detrimental to the minor. When joint guardians or conservators are appointed, under this section, either guardian may consent to the treatment of the minor.

Stepparents
A stepparent does not have the authority to make health care decisions for a minor unless he or she has legally adopted the minor. Please see guidelines for adoptive parents below.

Adoptive Parents
Parents who have legally adopted a child have the same authority to consent to mental health treatment as do biological parents. Therefore, if the adoptive parents are married, not separated, either parent acting alone may consent to mental health treatment for the child.

Minors with Unmarried Parents
A biological mother has the authority to unilaterally make health care decisions for a minor, whether or not she is married. If there is no question as to the identity of the natural father, then he also has the right to unilaterally make health care decisions for the minor. If the biological parents disagree about the treatment, a court order may be necessary.

Minors with Minor Parents
A minor who is a natural parent has the authority to consent to mental health treatment for his or her minor child. However, it is also important to make sure that the minor parent understands the nature of the treatment in order to give informed consent.

Parents With Children Under the Jurisdiction of the Court But Living at Home
Generally, parents retain the right to make health care decisions for their children even when the court has taken jurisdiction, due to neglect or child abuse, unless the court order specifies to the contrary. However, because there are some legal uncertainties about this issue, providers should seek guidance from the juvenile court or a social worker involved in the case.

Legal Guardians
A guardian has the same right as a parent having legal custody of a child to give consent to mental health treatment performed upon the child.

Foster Parents
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. Generally, the legal guardian of a child in foster care would make such decisions.

Caregivers
Section 6550 of the Family Code provides caregivers, who meet certain criteria and sign an affidavit, with the same right to make health care decisions as a legal guardian. For purposes of school-related medical care, a caregiver must be at least 18 years of age and the minor must live in his or her home. For purposes of any other medical care, the caregiver must be a “qualified relative” of the minor.

Emancipated Minors
Emancipated minors shall be considered adults for the minors’ capacity to consent to medical, dental, or psychiatric care, without parental consent, knowledge, or liability (Family Code §7050). 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.

Treatment With the Consent of an Unemancipated Minor
Section 6924 of the Family Code permits minors who meet certain criteria to consent to mental health treatment without parental consent.

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 minor would present a danger of serious physical or mental harm to self or to others without the mental health treatment or counseling.
• The minor is the alleged victim of incest or child abuse.

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 minor’s 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 stepmother of a nine-year-old girl calls a licensed MFT seeking treatment of the child. She indicates that her husband is the girl’s father and the girl’s biological mother is out of the picture.

(2) A foster parent contacts an MFT Intern seeking treatment for her five-year-old foster son who has been with her since birth.

(3) A divorced parent seeks treatment of his ten-year-old son. He says he has sole custody.

(4) A single, never married, mother seeks treatment of her seven-year-old son.

(5) A fourteen-year-old girl wants to talk to a licensed MFT about her relationship with her boyfriend. She does not want her parents to be told.

(6) A seventeen-year-old girl wants to enter into a therapeutic relationship with an MFT Intern working in private practice without her parent’s consent.

(7) An emancipated minor, age seventeen, seeks treatment from an MFT Intern.

(8) A grandmother of a seven-year-old girl seeks treatment for her granddaughter. According to the grandmother, the parents are drug addicts and have not seen the little girl for three years. The granddaughter lives with the grandmother, but there has been no legal guardianship established by any court.

(9) A divorced couple, with joint legal custody consents to the treatment of their minor children. Six months later, the mother, who believes the therapist has taken the side of the father, sends a letter to the therapist demanding that the therapist immediately cease the treatment of the children.

(10) A sixteen-year-old boy is in treatment with an MFT with the consent of his parents. Following a child abuse report made by the therapist, both parents demand that the therapist cease treatment of the minor. The minor contacts the therapist and requests that she continue treating him without telling his parents.

Answers:

(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 therapist’s 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.