Blue Levis & White Tee-Shirts: When Treating Minors 12 Years of Age or Older, Consent Does Not Automatically Equal Authorization to Release Confidential Medical Information

The Therapist
July/August 2002
David Jensen, JD (Former CAMFT Staff Attorney)
Updated November of 2022 by Luke M. Martin, MBA., JD ()CAMFT Staff Attorney)

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Early in my marriage, I decided to help my spouse with the laundry. The tub inside the washing machine seemed large and since there weren't that many clothes, to save time and money, I decided to wash everything at once. So, I placed my wife's white cotton blouses and my white socks and my white tee- shirts into the washing machine, along with my new Levis. Big mistake! As you can imagine, by the completion of the wash cycle, the color of our clothing had turned from white to various shades of indigo blue. Why? Because in my haste to get something done, I violated one of the maxims of laundry: separate those things that need to be separated.

This laundry maxim is equally applicable to therapists when dealing with the issues of who can consent to treatment and who can authorize the release of confidential medical information. Therapists must analyze these issues separately. Over the last few weeks, however, I have received a number of telephone calls from well-meaning therapists who have not kept these issues separate. They have confused the issue of who can consent to treatment for a minor with the issue of who can then authorize the release of such a minor's confidential medical information. They have released confidential information without getting proper authorization. In so doing, they have inadvertently authorization.

The legal and ethical mistakes that these therapists made resulted from their erroneous assumption that since mom or dad, or the minor's representative, had originally consented to the minor's treatment, such person could then authorize the release of the minor's confidential medical information. This notion, although seemingly logical on its face, is erroneous because it fails to consider the minor's ability to participate in the decision to release his or her confidential medical information upon attaining the age of 12. The notion is also erroneous because it ignores the therapist's duty to make clinical determinations about how the release of confidential medical information will affect his or her professional relationship with the minor and about how the release will affect the minor's safety or psychological well-being. Failing to keep these distinct issues of consent and authorization completely separate, i.e., washing the whites with the Levis, especially when the minor is 12 or older, will cause the therapist to commit acts that could pierce the therapist's veil of professionalism and expose him or her to liability for breaching the minor's confidentiality. Such actions could also lead to disciplinary action from the Board of Behavioral Sciences for unprofessional conduct for failing to maintain confidentiality.¹

Consequently, to avoid such dire consequences, it is paramount for therapists to remember that when treating minors, especially minors 12 years of age or older, parental consent for such treatment does not automatically give such parents the unilateral right to access the minor's confidential medical information. Therapists need to be cognizant of this rule especially when the minor has turned 12 after commencing treatment with the therapist. The core concepts of consent to treatment and authorization to release confidential medical information, like white tee-shirts and blue Levis, must be kept separate and distinct, and they must be analyzed as separate issues. The remainder of this article is devoted to giving you a greater understanding of who can consent to the mental health treatment of minors and who can authorize the release of a minor's confidential medical information.

Consent to Treatment
By consent to treatment we mean the ability of one person to make an informed decision about the mental health services that such person receives. Obviously, when dealing with an adult, he or she typically makes that decision for him or herself. The adult consenting to treatment is then the therapist's actual patient. However, when minors are involved, someone other than the therapist's actual patient is making that treatment decision on behalf of the minor. California law permits parents (and others) to consent to the mental health treatment of minors, and such law also authorizes minors, in certain statutorily prescribed circumstances, to consent to their own mental health treatment.

Section 6924, Family Code
Section 6924 of the Family Code permits minors who meet certain criteria to consent to mental health treatment without parental consent.

This section defines "mental health treatment or counseling services" as the provision of mental health treatment or counseling on an outpatient basis.² These services can be administered by specified agencies, including, but not limited to, governmental agencies and other agencies under contract with the government to provide the services.³ Professional persons working in any lawful setting, including private practice may also provide these services.⁴ The definition of "Professional person" includes licensed marriage and family therapists and registered associate marriage and family therapists.⁵

This section provides that a minor who is 12 years of age or older, and in the opinion of the attending professional person is mature enough to intelligently participate in the services, may consent to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if the minor meets one or more of following conditions:

• The minor would present a danger of serious physical harm to self or to others without the mental health treatment or counseling;
• The minor would present a danger of serious mental harm to self or to others without the mental health treatment or counseling; or
• The minor is the alleged victim of incest or child abuse.⁶

Therapists should use their own clinical judgment in determining whether a particular minor meets any of these requirements. Minors under the age of 12 cannot consent to mental health treatment under any circumstance.

The section requires that a professional person offering residential shelter services make his or her best efforts to notify the parent or guardian of the provisions of services.⁷ Professional persons working in settings other than residential shelter facilities would not be required to make such a notification.

The section also requires the mental health treatment or counseling of a minor to 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.8 Additionally, 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.9 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.¹⁰

Section 124260, Health and Safety Code
Section 124260 of the Health and Safety Code also permits minors to consent to mental health treatment without parental consent. However, the conditions for a minor to provide such consent are less restrictive than under Section 6924 of the Family Code. Under Section 124260 of the Health and Safety Code, a minor who is 12 years of age or older may consent to mental health treatment or counseling services if, in the opinion of the attending professional person, the minor is mature enough to participate intelligently in the mental health treatment or counseling services.11 Unlike Section 6924 of the Family Code, the minor does not have to meet any additional criteria to consent to his or her treatment.12 The treatment authorized by this section must include the involvement of the minor's parent or guardian, unless the professional person who is treating or counseling the minor, after consulting with the minor, determines that the involvement would be inappropriate.13 The professional person who is treating or counseling the minor is required to state in the client record whether and when he or she 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.¹⁴

If a minor patient is treated by a marriage and family therapist trainee, clinical counselor trainee, psychology trainee, or a social work intern (aka associate social worker), Health and Safety Code Section 124260 (b)(2) requires that the individual notify his or her supervisor or, if the supervisor is unavailable, an on-call supervisor at the site where the trainee or associate volunteers or is employed within 24 hours of treating or counseling a minor pursuant Health & Safety Code, 124260. If upon the initial assessment of the minor, the trainee or associate believes that the minor is a danger to self or to others, the trainee or social work associate must notify the supervisor or, if the supervisor is unavailable, the on-call supervisor immediately after the treatment or counseling session.

As an analytical framework to aid you in determining who can consent to the mental health treatment of the minor sitting across from you in your office, you should ascertain the minor's age and, if applicable, the relationship of the individual accompanying the minor to your office. You should also review any applicable court documents, which means that you must instruct your patients and/or their representatives to bring such documents to the appointment, or to submit them to you in advance of the appointment. With such information, you can then determine whether California law allows the minor to consent to his or her own treatment, and/or whether the person accompanying the minor is legally authorized to consent to such treatment.

The table below, which sets forth some of the more common relationships we regularly encounter, has been constructed to assist you with this analysis.

Relationship to Minor	Can Such Person Consent to the Mental Health? Treatment of a Minor?
Biological Mother or Biological Father and the marriage is still intact.	Either parent can consent
Biological Mother or Biological Father, but the Couple has divorced.	If biological Mother or Biological Father has Sole Legal Custody, only that parent can consent15; if mother and father have Joint Legal Custody, the language in the Custody Order should specify who gets to make mental health treatment decisions or non-emergency medical decisions.16 If there is no such language, then either parent can consent; however, we recommend getting both parents to consent, if possible.
Stepparent	Not unless the Stepparent has legally adopted the minor or the Stepparent has become an Authorized Caregiver pursuant to Section 6550 of the Family Code.
Adoptive Parent	Yes, adoptive parents have the same rights as biological parents regarding mental health treatment decisions.17
A Minor with Unmarried Parents	Either Biological Mother or Biological father can consent, if there is no dispute as to paternity18; if there is a dispute as to paternity or paternity has not been established, only Biological Mother can consent. If Biological Mother and Biological Father disagree, the court will have to decide the issue.
Legal Guardians	Legal guardians generally have the same rights as biological parents regarding mental health treatment decisions.
Foster Parents	Not generally. The decision should be made by the minor's legal guardian, which is, typically, either the court or someone appointed by the court.
A "Qualified Relative," including, but not limited to, a brother, a sister, an uncle, an aunt, or a grandmother or grandfather.	Yes, if, pursuant to Section 6550 of the Family Code, a "Caregiver's Authorization" has been duly prepared and signed by the Qualified Relative.
Self (Minor 12 years of age or older)	Section 6924 Family Code Yes, if the minor is 12 years of age or older; is mature enough to intelligently participate in therapy; and, and the minor is an alleged victim of incest or child abuse, or the minor would present a danger of serious physical harm to self or others without treatment, or the minor would suffer serious mental harm without treatment. Section 124260 Health and Safety Code Yes, if the minor is 12 years of age or older and is mature enough to intelligently participate in therapy.

In analyzing the issue of who can consent to the mental health treatment of a minor, it is incumbent upon you to review any applicable court documents so that you can make an independent determination, i.e., your own determination, that the person purporting to give consent for the mental health treatment of the minor actually has the legal authority to do so. For example, if you are dealing with a divorced couple, you should request and review the custody order; or, if you are dealing with a "Qualified Relative," you should have the relative complete and sign a Caregiver's Authorization Affidavit.

In summary, California law allows parents and a host of others to consent to the mental health treatment of minors. It also authorizes minors, in certain statutorily-prescribed circumstances, to consent to their own mental health treatment.19 Then, having treated a minor, what is a therapist to do when the minor's parents or representative demands copies of the minor's records, or requests to speak with you about your treatment of the minor? Fortunately, the California legislature has answered this question for us, and such an answer raises the issue of the confidentiality of the minor's medical records.

Authorization for Release of Confidential Information
Confidentiality is basically a restriction on the volunteering of information outside of the courtroom setting. In general, therapists are prohibited from disclosing confidential communications to third parties, unless such disclosure is mandated or permitted by law.20 The Child Abuse Neglect and Reporting Act is a good example of a mandated disclosure. Section 56.10 of the California Civil Code, is an example of a permitted disclosure if the disclosure is necessary to prevent an imminent threat of harm to a foreseeable victim. Given this background then, what is the therapist's responsibility when a parent or a representative of the minor requests copies of the minor's confidential medical information and there is no underlying legal proceeding?

In general, persons having responsibility for making health care decisions for others have a concomitant right to access information concerning the care and condition of that patient. Such a law allows parents, or the personal representatives of minors, to access confidential medical information about the minors under their care and control. This general rule allows you, as a treating therapist, to talk with mom and dad, or the minor's legal guardian, about your care and treatment of the minor. However, although this is the general rule in California, there are exceptions to it, and those exceptions are found in Section 123115 of the California Health & Safety Code.

Section 123115 (a) states that a representative of the minor, whether that person is the minor's parent or guardian, is not allowed to inspect or obtain copies of the minor's patient records if the minor has inspection rights of his or her own. A minor has inspection rights if he or she consented to his or her own mental health treatment pursuant to Section 6924 of the California Family Code and/or Section 124260 of the California Health and Safety Code. Consequently, if the minor consented to his or her own mental health treatment, based upon the test we set forth earlier in this article, the representative of the minor cannot access the minor's confidential medical information without the written authorization of the minor.

Section 123115 (a)(2) also sets forth two other situations where the minor's representative, again whether that be mom or dad or some other person, cannot access the minor's confidential medical information. These situations are similar in that they each require the therapist to make a clinical determination about how the release of such information to the minor's representative would affect the minor. The first option requires the therapist to make a clinical determination about how the release of such information will affect the therapist's professional relationship with the minor. Consequently, if the therapist reasonably believes --in good faith-- that such disclosure would have a detrimental effect on the therapist's professional relationship with the minor, then the minor's personal representative cannot have access to the minor's confidential medical information.

The second option requires the therapist to make a clinical determination about how the release of the information would affect the minor's physical safety or psychological well-being. Consequently, if the therapist reasonably believes --in good faith-- that disclosing the information to the minor's representative would have a detrimental effect on the minor's physical safety or psychological well-being, then the minor's personal representative cannot have access to the minor's confidential medical information.

But, what about the situation where the minor requests the information? At that point, the therapist must determine if there is a "substantial risk of significant adverse or detrimental consequences" from the minor seeing the medical records.^{21 If there are any such consequences, the therapist may decline to release the information to the minor.}

Lastly, as an aside, keep in mind that the purpose of this article is to encourage you to keep the legal concepts of consent to treatment and authorization to release confidential medical information separate and distinct. This article presupposes that there is no underlying legal proceeding that would bring the Psychotherapist-Patient Privilege into play. If there is any such proceeding, then you must invoke the privilege where applicable, and California law is clear that such privilege belongs to the minor.

Consenting to the mental health treatment of a minor does not give the person who consented to such treatment the unilateral right to authorize the release of the minor's confidential medical information. Deciding whether to release such information requires the therapist to consider the minor's age and the minor's ability to consent to his or her own treatment; the therapist must also consider the effects that the release of such information will have on the minor. Only then, after analyzing these issues, can the therapist make an informed decision about whether to release the information. Don't wash the white clothing with the new Levis!

In conclusion, therapists treating minors often feel they are walking a tightrope, and for good reasons. This is complicated stuff, but the fundamental idea is that consent to treatment and authorization to release medical information are distinct legal concepts that must be analyzed separately if you, as a treating therapist, are to comply with the legal strictures attendant to them.

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¹ Cal. Business and Professions Code §§ 4982(m) and 4992.3(n); see also 16 Cal. Code of Regulations § 1881(I).
² Cal. Family Code § 6924(a)(1).
³ Id.
⁴ Cal. Family Code § 6924(a)(1)(E).
⁵ Cal. Family Code § 6924(a)(2)(B), (G).
⁶ Cal. Family Code § 6924(b)(1)-(2).
⁷ Cal. Family Code § 6924(c).
⁸ Cal. Family Code § 6924(d).
⁹ Id.
¹⁰ Id.
¹¹ Cal. Health and Safety Code § 124260(b).
¹² Id.
¹³ Cal. Health and Safety Code § 124260(c).
¹⁴ Id.
¹⁵ Cal. Family Code § 3006.
¹⁶ Cal. Family Code § 3083.
¹⁷ Cal. Family Code § 8616 states that, “[a]fter adoption, the adopted child and the adoptive parents shall sustain towards each other the legal relationship of parent and child and have all the rights and are subject to all the duties of that relationship.”
¹⁸ Cal. Family Code § 7602 provides that, “[t]he parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.”
¹⁹ See Cal. Family Code § 6924(b)(1)-(2); see also Cal. Health and Safety Code § 124260(b).
²⁰ Cal. Business and Professions Code § 4982(m) specifies that, among other actions, it is unprofessional conduct to fail to “maintain confidentiality, except as otherwise required or permitted by law, of all information that has been received from a client in confidence during the course of treatment and all information about the client that is obtained from tests or other means.”
²¹ Cal. Health and Safety Code § 123115(b).