Minor’s Consent for Mental Health Treatment: It’s as Easy as 1, 2, 3!

by Bradley J. Muldrow, JD Staff Attorney
The Therapist
September/October 2022

Evolving rules and overlapping requirements have made minor’s consent one of the trickiest legal issues for therapists to master. However, offering treatment via minor’s consent is not necessarily as complicated as one might imagine.

This article will provide an overview of the legal rules for offering treatment via minor’s consent, including a clear, three-step process for initiating such treatment.

BACKGROUND

Common Scenarios in Which Practitioners Offer Treatment via Minor’s Consent
Sometimes circumstances prompt minors to seek therapy without the support or accompaniment of their parents or guardians. Other times it may not be possible or appropriate to obtain parent or guardian consent for a minor’s treatment. Based on the numerous calls CAMFT staff attorneys receive on this topic, here are some of the most common scenarios in which therapists consider providing treatment via minor’s consent:

• The minor is fearful of parental involvement in their treatment;
• The minor’s parents and/or guardians are opposed to the clinically necessary or beneficial treatment for the minor;
• Legal custody of the minor is uncertain;
• The minor's legal custodians are unavailable (e.g. parents or guardians are deceased, in prison, deployed in the military, etc.)

However, special circumstances are not always what lead minors to seek therapy by themselves. In some instances, a minor may wish to consent to their own treatment to assume a greater level of responsibility over their journey towards mental wellness.

The Older Minor’s Consent Law: Family Code Section 6924
Most therapists who call CAMFT’s legal hotline seeking consultation related to minor’s consent express some level of familiarity with Family Code Section 6924. In many cases they learned about this law during their graduate studies or received training on how to follow this law during supervision. The law permits a minor in California to consent to their own treatment if the following requirements are met:

1. The minor must be 12 years of age or older;
2. In the therapist’s opinion, the minor must be mature enough to participate intelligently in the therapy services; and
3. Either:
   a. the minor would present a danger of serious physical or mental harm to themself or to others without the therapy services; or
   b. The minor must be the alleged victim of incest or child abuse.¹

Therapists often find that criteria 3a and 3b do not apply in most treatment scenarios they encounter. Accordingly, practitioners may conclude that Family Code Section 6924 grants California minors the right to consent to their own treatment in a narrow set of circumstances and will not apply in most cases. However, the newer minor’s consent law addresses this issue by affording minors the right to consent to treatment in a wider variety of circumstances.

The Newer Minor’s Consent Law: Health and Safety Code Section 124260
In 2010, recognizing that parental consent can operate as a barrier to care for minors in certain instances, California lawmakers enacted Health and Safety Code Section 124260 with the explicit intent of “expand[ing] the rights of minors to receive outpatient mental health treatment or counseling services.”2 Pursuant to this code section, a California minor may consent to their own mental health treatment so long as the following requirements are met:

1. The minor must be 12 years of age or older; and
2. In the therapist’s opinion, the minor must be mature enough to participate intelligently in the therapy services.³

These requirements largely mirror the language of the older minor’s consent law. However, unlike the older law, Health and Safety Code Section 124260 does not limit minors’ right to consent to their own treatment to circumstances in which they are the alleged victims of abuse or would present a danger to themselves or others if denied the mental health services they are seeking. Whether or not California minors are experiencing crises or facing other significant circumstances, Health and Safety Code Section 124260 allows them to consent to their own mental health treatment so long as they are 12 years of age or older and mature enough to intelligently participate in their treatment.

Practitioners should note that the older minor’s consent law, Family Code Section 6924, and the newer minor’s consent law, Health and Safety Code Section 124260, are both valid, existing laws authorizing minors to consent to their own treatment, where appropriate. That said, given that the newer law applies in more circumstances than the older law, this article will focus on the steps for providing treatment via minor’s consent in compliance with the newer law.

MINOR’S CONSENT IN THREE SIMPLE STEPS

STEP 1: Determine and Document the Minor’s Eligibility to Consent to Their Own Treatment
Per Health and Safety Code Section 124260 (hereafter “Section 124260”), a minor can consent to their own therapy services if the minor is: 1) 12 years old or older; and 2) mature enough to intelligently participate in the treatment. Therapists are not required to obtain consent for treatment in order to take an intake call from, or hold an intake session with a minor seeking to consent to their own treatment. Accordingly, prior to giving treatment via minor’s consent, a therapist should verify the minor’s age, assess the minor’s maturity to intelligently participate in the treatment, and document their findings.

Practice Pointer 1: Intake vs. Therapy
Prior to holding an intake session with a prospective patient, a therapist should inform the prospective patient that the purpose of the intake session is to afford both parties the opportunity to determine whether they are a “good fit” and whether to begin therapy. Such an instruction can reduce the likelihood of the prospective patient mistakenly believing that the intake session automatically creates a therapeutic relationship with the therapist.

Therapists should also avoid utilizing therapeutic interventions or otherwise performing therapy during intake sessions. These actions may unintentionally create therapeutic relationships with prospective patients before the therapists have had the opportunity to fully assess the prospective patients’ clinical concerns and the therapists’ ability to effectively treat those concerns.

Determining Whether the Minor is Mature Enough to Intelligently Participate in the Treatment
The law does not specifically address what it means for a minor to be mature enough to intelligently participate in their mental health treatment. It affords therapists discretion to make such determinations on a case-bycase basis. In developing one’s approach to assessing a minor’s maturity, one should keep in mind that Section 124260 was enacted to expand minors’ rights to access mental health treatment.4 Consequently, one may conclude that the legislature does not intend for therapists’ criteria for assessing minors’ maturity to be so strict that the criteria function as barriers to care for minors in need of therapy.

When determining whether a minor is mature enough to intelligently participate in their mental health treatment, providers may wish to consider and document their assessment of relevant factors such as the following:

• Does the minor understand basic concepts related to therapy (e.g. consenting to treatment, confidentiality, etc.)?
• Does the minor understand the goals for their treatment?
• Does the therapist believe they can provide effective treatment to the minor?

STEP 2: Notify Parents and/or Guardians (If Appropriate)
When a minor consents to their own treatment under Section 124260, the law requires the therapy to include “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.”5 However, the term “involvement,” as used in this section, has been the source of confusion for many practitioners.

As this article will address in step 3, minors who are consenting to their own treatment typically have discretion to determine how much ongoing communication they would like for their therapist to have with their parents or guardians. Accordingly, the general intent of Section 124260 is not to require involvement of minor patients’ parents and/or guardians in minor’s consent-based treatment. In practice, Section 124260 broadly requires a therapist to notify a minor patient’s parent(s) and/or guardian(s) that the minor will be consenting to their own mental health services, unless the therapist determines it would be inappropriate to do so after consulting the minor.

When offering treatment via minor’s consent, under this section, the therapist must document one of the following regarding each parent and/or guardian possessing some portion of legal custody of the minor (e.g. full legal custody, joint legal custody, etc.):

• The date(s) on which the therapist attempted to notify the parent or guardian that the minor will be consenting to their own treatment and whether the therapist’s notification efforts were successful; or
• The reason(s) why, after consulting the minor, the therapist believes it would be inappropriate to notify the parent or guardian that the minor will be consenting to their own treatment.

The law does not indicate which specific circumstances would render notification of a minor’s parent(s) or guardian(s) “inappropriate.” Therefore, as long as the therapist determines, in the exercise of their clinical judgment, that notifying one or both parents or guardians would be clinically inappropriate, the therapist would not be required to notify that party / those parties about the minor’s treatment. For instance, a therapist may deem parent notification to be inappropriate after learning from the minor that their parents have mocked their mental health challenges in the past. Alternatively, the therapist may determine that the minor is intimidated by their parents and may not be as forthcoming during treatment if their parents are notified about the minor’s treatment.

In some instances, a therapist may determine that it is appropriate to notify one of a minor patient’s parents or guardians (“Parent/ Guardian A”) about the minor’s treatment, but inappropriate to notify the other (“Parent/ Guardian B”). Should this occur, the therapist should notify Parent/Guardian A, refrain from notifying Parent/Guardian B, and document accordingly (based on the previously listed bullet points).

Practice Pointer 2: The Decision is Yours
The law requires therapists to consult with minors prior to determining whether it is appropriate to notify their parent(s) or guardian(s) that they will be receiving treatment via minor’s consent. Although it is important for therapists to consider minors’ perspectives when making such decisions, the therapist must ultimately determine whether parent/guardian notification is clinically appropriate (or inappropriate).

STEP 3: If Appropriate, Work with the Minor to Establish a Suitable Level of Communication with the Minor’s Parent(s)/Guardian(s) and/or Other Third Parties
When parents and guardians give consent for minors to receive therapy services, therapists are typically able to provide them with general updates about their minors’ treatment without obtaining releases of information.6 However, such rules do not apply when therapists offer treatment via minor's consent. In minor’s consent-based treatment, if a therapist deems it appropriate to notify the minor’s parent(s) or guardian(s) about the minor’s treatment, the therapist would generally need the minor to sign a release of information to communicate further with the parent(s) or guardian(s).

At the outset of treatment via minor’s consent, a therapist should determine the level of communication, if any, their minor patient would like for the therapist to have with the minor’s parent(s) or guardian(s). This discussion may include issues, such as:

• Whether the minor patient would like the therapist to communicate with their parent(s) or guardian(s) during treatment;
• If so, what type of information would the minor feel comfortable with their parent(s) or guardian(s) receiving from the therapist; and
• How frequently would the minor feel comfortable with the therapist providing the parent(s) or guardian(s) with information about the minor’s treatment (e.g. weekly updates, monthly updates, only when the parent(s) or guardian(s) reach out to the therapist, etc.)

Following this discussion, the provider should ensure that the minor patient signs a release of information authorizing the therapist to engage in the agreed-upon communication with their parent(s) or guardian(s).

In some instances, a therapist may determine that it is clinically appropriate to offer a minor treatment via minor’s consent without having any communication with the minor’s parent(s) or guardian(s) during the process.

However, in other instances, a therapist may determine that they need to engage in some level of communication with the minor’s parent(s) or guardian(s) to effectively treat the minor. Should this occur, the therapist must: 1) identify the level of parent / guardian communication they believe is clinically necessary to effectively treat the minor’s concerns; and 2) determine whether the minor would agree to allow such communication. If the minor does not agree to allow the therapist to engage in clinically necessary parent / guardian communication, the therapist may not be able to treat the minor via the minor’s consent.

The therapist may also wish to consider whether communicating with another adult in the minor’s life (e.g. an older sibling, a grandparent, etc.) would allow the therapist to effectively treat the minor. If so, the therapist should discuss this possibility with the minor and, if the minor agrees, obtain a release of information authorizing such communication.

Practice Pointer 3: Communicating with Parents or Guardians for Emergency Purposes
Even when offering treatment via minor’s consent, state and federal law permit therapists to breach confidentiality to appropriate third parties, potentially including parents and guardians, during certain emergencies circumstances (e.g. if a minor is presenting a serious and imminent danger to themself or others).⁷

CAMFT Code of Ethics Rule 3.6 encourages therapists to inform patients of “significant exceptions to confidentiality.” For this reason, before beginning treatment via minor’s consent, therapists should inform minor patients that, in the event of a crisis or other serious and imminent danger, the therapist may need to reach out to the minors’ parents or guardians, emergency services, or other third parties to assist the therapist in resolving the crisis.

Practice Pointer 4: Payment-Related Communications
Sometimes a minor’s parent or guardian may agree to pay for the minor to receive treatment via minor’s consent. California law generally allows therapists to disclose payment related information to parents, guardians, or other parties who agree to cover the cost of a patient’s treatment, without obtaining a signed release of information from the patient.⁸ However, CAMFT recommends that therapists still obtain signed releases of information prior to making payment-related disclosures to ensure that their patients are aware of, and explicitly agreeing to allow such communications.

ADDITIONAL CONSIDERATIONS FOR PROVIDING TREATMENT VIA MINOR’S CONSENT

Special Rules for Trainees and Social Work Interns Offering Treatment via Minor’s Consent
Under Section 124260, MFT trainees, clinical counselor trainees, psychology trainees, and social work interns must notify their supervisors within 24 hours of providing treatment via minor’s consent.⁹ If the trainee or social work intern’s supervisor is unavailable, the trainee or social work intern must give such notice to an on-call supervisor for their work site.¹⁰

Additionally, if their initial assessment of the minor leads the trainee or social work intern to believe that the minor presents a danger to themselves or others, the trainee or social work intern must notify their supervisor (or on-call supervisor, if applicable) immediately after the treatment or counseling session.¹¹

Practice Pointer 5: Document, Document, Document
To demonstrate compliance with Section 124260, trainees and social work interns should document their provision of applicable supervisor notifications in their patients’ records. When reviewing their trainees’ and social work interns’ patient records, supervisors should ensure that such notifications have been documented.

Practice Pointer 6: No Supervisor Notification Requirement for Associates
Section 124260’s supervisor notification rules only apply to trainees and social work interns. Associates are not required to notify their supervisors when providing treatment via minor’s consent. However, supervisors should always be aware of who their supervisees are treating and the clinical concerns and complexities their cases present.

Be Mindful of Your Employer’s Policies Regarding Minor’s Consent-Based Treatment
Although Section 124260 authorizes therapists to offer treatment via minor’s consent in appropriate circumstances, some therapists work for employers that do not permit such treatment. For example, some agencies, group practices, and school districts require therapists under their employ to obtain consent from one or both parents /guardians prior to treating minors. Accordingly, therapists should be aware of, and abide by such policies to remain in good standing with their employers.

Health Plans, Confidentiality, and Minor’s Consent
As of July 1, 2022, AB 1184 requires health plans to take additional steps to protect the confidentiality of medical information related to “sensitive services,” including minor’s consent-based therapy services¹², provided to subscribers and enrollees who qualify as “protected individuals.”¹³ Per the law, the term “protected individuals” includes minors who can consent to health care services without the consent of parent(s) or legal guardian(s), pursuant to state laws, such as Section 124260, or federal laws.¹⁴

AB 1184 protects the rights and confidentiality of minors consenting to their own treatment in two key ways:

Health Plans May Not Require Parent or Guardian Authorization for Minor’s Consent-Based Treatment
Pursuant to AB 1184, a health care service plan cannot require a minor consenting to their own treatment to obtain the policyholder, primary subscriber, or other enrollee’s authorization to receive therapy services or to submit a claim for therapy services.¹⁵ For example, if a minor consenting to their own treatment is covered under their parents’ health plan, the health plan would not be permitted to require parent authorization to reimburse for the minor’s treatment.

That said, the minor may still be required to cover the cost of any co-pays or co-insurance payments specified in their parents’ or guardians’ health plans. If the plan does require the minor to pay such costs, the minor’s therapist should work with the minor to determine their ability to pay prior to agreeing to go forward with treatment.

Note: Preemptively agreeing to waive patients’ co-pays and/or co-insurance payments is typically treated as insurance fraud by health plans.

Minors Consenting to Their Own Treatment May Designate Alternative Methods for Receiving Treatment-Related Communications from Health Plans
AB 1184 also requires health plans to direct all communications regarding a protected individual’s receipt of therapy services directly to the protected individual receiving care, including to an alternative mailing address, email address, or phone number provided by the individual.¹⁶ For example, suppose a minor patient consents to their own treatment and the services are covered by their parents’ health plan. If the minor provides the health plan with an alternative phone number, email address, and/or mailing address, the health plan must utilize these alternative methods of contact when sending communications related to the minor’s treatment.

In appropriate scenarios, when treating minor patients who have given their own consent, therapists may wish to suggest that the minors reach out to their parents’ and/or guardians’ health plans to learn more about the plans’ policies and procedures for: 1) designating alternative contact information for communications related to the minors’ treatment; and 2) ensuring that the minors’ parents, guardians, or other health plan enrollees are not informed about the minors’ treatment. If the therapist is contracted with the health plan in which their minor patient is enrolled, it may be prudent for the therapist to reach out to the plan directly to obtain this information.

Minor’s Consent and Medi-Cal
Coverage of Minor’s Consent-Based Services
Unfortunately, AB 1184 only applies to commercial health plans. Therefore, Medi- Cal plans have discretion to require parent or guardian authorization to reimburse for therapy services rendered to minors. In the past, most Medi-Cal plans required such authorization. However, based on reports from CAMFT members in recent years, it appears that a number of Medi-Cal plans have become more open to reimbursing for minor’s consent-based treatment without receiving authorization from minors’ parents or guardians. Should a minor intend to use their or their parents’ or guardians’ Medi-Cal benefits to cover the cost of minor’s consentbased treatment, the minor’s therapist should contact the Medi-Cal plan in which the minor is enrolled to determine the plan’s procedures for covering such services.

Confidentiality of Treatment-Related Information
Should a minor’s Medi-Cal plan agree to cover minor’s consent-based services, the minor’s therapist should consider informing the minor that benefits statements and/or other communications from Medi-Cal may alert the minor’s parent(s) or guardian(s) that the minor is receiving treatment. In such circumstances, it may be prudent for the therapist to contact the Medi-Cal plan the minor is enrolled in to determine whether the plan has protocols or procedures for protecting minor patients’ confidentiality under such circumstances.

Parent/Guardian Consent May Be Needed for Other Forms of Treatment
Section 124260 does not permit minors to consent to receive psychotropic drugs, convulsive treatment, or psychosurgery without parent or guardian authorization.¹⁷

Conclusion
Developing a deeper understanding of Section 124260 can allow therapists to offer minor’s consent-based treatment with confidence and ease. Practitioners with questions about the requirements discussed in this article are welcome to contact CAMFT’s legal department during normal business hours.

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Brad J. Muldrow, JD, is a staff attorney for CAMFT. Brad is available to answer member calls regarding legal, ethical, and licensure issues.

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Endnotes

¹ See Family Code Section 6924(b).
² See the August 31, 2010 Senate Floor Analysis for SB 543 at pages 2 and 4.
³ See Health and Safety Code Section 124260(b).
⁴ See the August 31, 2010 Senate Floor Analysis for SB 543 at page 2.
⁵ Health and Safety Code Section 124260(c).
⁶ See e.g. Civil Code Section 56.1007. It should be noted that in most situations, to use this confidentiality exception, a therapist must obtain the minor’s permission to provide general treatment updates to the minor’s parent(s) or guardian(s), or not receive a denial of such permission from the minor after giving the minor the opportunity to deny permission.
⁷ See e.g. California Civil Code Section 56.10(c)19; 45 CFR
164.512(j)(1)(i)(A).
⁸ See Civil Code § 56.10(c)(2)
⁹ See Health and Safety Code Section 124260(b)(2).
¹⁰ Id.
¹¹ Id.
¹² See Civil Code § 56.05(n)
¹³ See Civil Code § 56.107.
¹⁴ Civil Code § 56.05(l).
¹⁵ Civil Code § 56.107(a)(1).
¹⁶ Civil Code § 56.107(a)(3).
¹⁷ Health and Safety Code Section 124260(e).

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This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.