Attorney Articles | Releasing Records In The Age of Adolescent Consent
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Articles by Legal Department Staff

The Legal Department articles are not intended to serve as legal advice and are 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 the article.

Releasing Records In The Age of Adolescent Consent

California is one of many states that allow for minors to consent to certain healthcare on their own. This article will discuss issues related to minors’ rights to consent to mental health treatment and disclosure of minors’ confidential treatment.

by Ann Tran-Lien
The Therapist
January/February 2019

Reviewed December, 2022 by Bradley J. Muldrow, JD (CAMFT Staff Attorney) 


Over the last few decades, we have seen an expansion of policies and laws that acknowledge a minor’s desire to seek healthcare on their own without parental consent. California is one of many states that have passed laws explicitly allowing for minors to consent to certain health care services. With the passage of such consent laws, we have also seen enactment of laws recognizing minors’ right of confidentiality including the rights to access, inspect, addend, and authorize for release of their own medical information. This article will discuss issues related to minors’ rights to consent to mental health treatment and disclosure of minors’ confidential treatment information. 

Minor Consent for Mental Health Treatment
Recognizing that minors may forgo necessary healthcare, including mental health treatment, due to barriers caused by parental consent and involvement, California has passed laws that allow for minors to consent to certain healthcare on their own. With respect to outpatient mental health treatment, the following California code sections allow for minors who meet specified criteria to consent to treatment (referred to in this article as “the Minor Consent Laws”). 

Health & Safety Code section 1242601 provides:

  • 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 therapist, the minor is mature enough to participate intelligently in the mental health treatment or counseling services.
  • The mental health treatment or counseling of a minor must include the involvement of the minor’s parent or guardian, unless the therapist, who is treating or counseling the minor, after consulting with the minor, determines that the involvement would be inappropriate. It must be documented in the minor’s records, whether and when the therapist attempted to contact the minor’s parent2 or guardian, and whether the attempt to contact was successful or unsuccessful, or the reason why, in the therapist’s opinion, it would be inappropriate to contact the minor’s parent or guardian. 
  • The minor’s parent or guardian is not liable for payment for mental health treatment unless the parent or guardian participates in the mental health treatment, and then only for services rendered with the participation of the parent or guardian. 
  • The law does not authorize a minor to receive convulsive treatment or psychosurgery, or psychotropic drugs without the consent of the minor’s parent or guardian. 

For more information about providing minor’s consent-based treatment, under Health and Safety Code Section124260, see Minor’s Consent for Mental Health Treatment: It’s as Easy as 1, 2, 3! by CAMFT staff attorney Bradley Muldrow, JD. 

Family Code section 6924 provides virtually the same language as Health & Safety Code section 124260, but also specifies additional requirements to be satisfied: 

  • A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if both of the following requirements are satisfied: 
  1. The minor, in the opinion of the therapist, is mature enough to participate intelligently in the outpatient services or residential shelter services; AND 
  2. The minor (A) would present a danger of serious physical or mental harm to self or to others without the mental health treatment or counseling or residential shelter services, or (B) is the alleged victim of incest or child abuse. It is important to note that both code sections are co-existing and the minor only needs to meet the requirements of one law to consent to mental health treatment. California law also authorizes minors who meet certain criteria to consent to almost all types of health care, including mental health treatment. Such minors include:
  • Emancipated Minors: Minors under the age of 18 who are or have been validly married, on active duty in the U.S. military, or have received a “Declaration of Emancipation” by a court. (Family Code §§ 7002, 7050, 7120) 
  • Minors Living Separate and Apart of Parents: Minors may be deemed self-sufficient if they are 15 years-old or older; living separate and apart from their parents; and managing their own financial affairs. (Family Code §6922) 

Authorization for Release
California has recognized that with the right to consent to healthcare, there is a corresponding right to access treatment records. The general rule is the person who has the right to access the treatment records has the right to authorize for disclosure or release of the information.3 It is not uncommon for therapists who treat minors to be presented with requests from parents to access or obtain copies of the minor’s treatment records. Therapists may also receive requests to produce the minor’s treatment records to someone other than the parent. Confidentiality of the treatment is generally protected unless the law requires or permits disclosures. If the disclosure is not required or permitted by law, then the therapist must obtain a written Authorization Form in order to release the information.4 The key question when treating minors is who must sign the Authorization Form—the parent or the minor patient? Let’s look at three common scenarios: 

Scenario #1: Minor Consents
The first scenario involves a records request for a minor who consented to their own mental health treatment under one of the Minor Consent Laws. It consists of the following: A therapist who works for a non-profit counseling center is treating a mature and intelligent 15-year-old minor. Parents, who are going through a bitter separation, initially sought therapy for the minor, but withdrew their consent when the therapist refused to write a letter to their attorneys. The minor had returned a week later requesting to continue services. After determining the minor meets the Minor Consent Law criteria to consent, the therapist resumes therapy with the minor. Upset with the turn of events, the therapist receives a request for release of the minor’s records from both of the minor’s parents with a note that they are going to file a BBS complaint if the therapist does not release the records. Must the therapist release the records? 

In this scenario, the law is clear: Health & Safety Code sections 123110 and 123115 provide that, a parent cannot inspect or obtain copies of their minor’s treatment record if the minor was lawfully authorized and consented to their own mental health treatment. In this scenario, the minor was lawfully authorized to consent to the mental health treatment and consented to treatment. The law allows the minor the corresponding right of confidentiality and the right to authorize disclosure of treatment information. As a result, the therapist must obtain a signed Authorization Form from the minor patient to release their confidential information, or any part of the treatment record, to parents. Exceptions to confidentiality still apply in these situations, such as suspected child abuse reporting, Tarasoff, harm to self and others, etc.

Scenario 2: Parental Consent — Minor Legally Cannot
The second scenario involves a request for the treatment records of a minor who did not meet the criteria to lawfully consent to mental health treatment and parents consented to the care. An illustration of this scenario is as follows: A therapist is treating a 10-year-old minor whose father consented to the treatment. The father, who has sole legal custody, sought therapy for the minor due to “some trouble at home.” During sessions, the minor disclosed, among other things, that he was having problems with his stepmother and that he does not trust her. The minor has adamantly expressed, on multiple occasions, that the therapist not share any of this information with his father because he is afraid his father will be upset with him. The father has called the therapist a few times in an attempt to “find out” what his son has been telling the therapist in sessions. Frustrated with the therapist’s general updates and lack of detail, the therapist receives a request for the minor’s complete treatment record from the father. Must the therapist release the record to father? The minor does not meet the legal criteria to consent; therefore, father who has the responsibility to make decisions respecting the health care of the minor, in general, would have the right of access and the right to authorize disclosure.5 However, that right is not absolute. 

Health & Safety Code section 123115 gives therapists broad discretion to deny a parent’s access to the minor’s record if:

  1. The therapist believes releasing the treatment record would have a detrimental effect on the minor’s psychological wellbeing or physical safety; or 
  2. The therapist believes releasing the treatment records would have a detrimental effect on the professional relationship between the therapist and the minor patient. 

The therapist in this scenario may deny the father’s request based on this criterion. The law protects the therapist from liability if the decision to deny parental access was made in good faith. 

Scenario 3: Parental Consent — Minor Legally Could Have 

The third scenario presents a more complicated matter, both legally and practically. It involves a records request for a minor patient who could have or is authorized to consent to mental health treatment, but parents consented to the care. An illustration of this scenario is as follows: Therapist is treating a 16-year-old minor whose parents contacted the therapist and consented to treatment. Parents have expressed they believe the minor is “distracted by the Internet” and is an “underachiever in school.” Throughout treatment, the minor has disclosed that parents are too strict and she cannot live up to their expectations. Parents feel they are now at wits end and inform the therapist they are requesting the minor’s treatment record for the purpose of transferring the minor to a residential boarding school. Enclosed with the request is an Authorization Form signed by both parents. Must the therapist send the treatment record? Is the authorization by the parents sufficient, or must the therapist obtain a signed authorization from the minor patient? To determine the appropriate response for the therapist, let’s take a closer look at the California code sections applicable to authorization for release of and access to treatment information/records: 

  1. Civil Code section 56.11(c) which governs the authorization for the release of confidential information specifies that a patient who is a minor must sign an authorization for the release of confidential information for a service to which the minor could lawfully have consented under certain parts of the law. The complicating factor is that the parts of law referenced in this code section are no longer in existence (meaning, they have been repealed by the Legislature years ago).
  2. Health & Safety Code sections 123110 and 123115 which govern access to records provides that a parent or legal guardian of a minor cannot inspect or obtain copies of the minor’s records if the records pertain to “health care of a type for which the minor is lawfully authorized to consent.” The confusion with this language is whether it means a minor who actually consented or could have consented to the treatment? 

Unfortunately, given the outdated references made in Civil Code section 56.11 and the arguably vague language of Health & Safety Code sections 123110 and 123115, there are various legal interpretations. CAMFT is currently aware of two major differing interpretations of the intent of the Legislature with respect to this issue. 

One interpretation is therapists are required to obtain a written authorization from the parent(s) who consented to the treatment, and not the minor patient. The therapist would only need an authorization from the minor when the minor actually consented to his or her treatment as authorized by law in either of the following circumstances 1) for being an emancipated minor or “self-sufficient,” or 2) for having met the criteria for minor consent to receive particular services as set forth in the law (e.g. the Minor Consent Laws). With this interpretation, the therapist could rely on Health & Safety Code section 123115 (similar to the analysis in Scenario #2) to deny a parent’s request for disclosure of treatment records/information. This interpretation, when applied to Scenario #3, would allow for parents to obtain the treatment records, unless the therapist believes the disclosure would harm the minor’s psychological or physical well-being, or harm the professional relationship between the minor and the therapist. 

The other interpretation is healthcare providers are required to obtain a written authorization from a minor patient when the minor could have lawfully consented or is lawfully authorized to consent to the treatment, regardless of whether the parents consented to the care. This interpretation has major implications for mental health treatment with minors in California. Given that the law allows for minors who are 12-years-old or older and mature enough to participate intelligently in therapy to consent to outpatient mental health treatment (Minor Consent Laws), essentially such minors would have to provide authorization before a therapist may release treatment records, even to parents. After thorough research, this interpretation appears to be the prevailing opinion from legal scholars, lawyers, professional associations, and county agencies with respect to this matter. Moreover, CAMFT obtained Legislative Counsel’s opinion to help provide authoritative guidance to our members on this topic. Legislative Counsel agrees with this interpretation. 

According to Legislative Counsel, the law in California explicitly allows for minors who meet certain criteria to consent to mental health treatment which also gives them the corresponding right of access and right to authorize disclosure of the information. Therefore, therapists are safest to maintain such minors’ confidentiality and obtain the minor’s authorization to disclose information to parents or third-parties, even if the parent consented to the treatment. This would apply, albeit the parent makes appointments, fills out intake forms, signs the consent forms, and pays for the services. In addition, Legislative Counsel pointed out Health & Safety Code section 123115 (discussed earlier in this article) gives broad discretion to therapists in denying a parent’s access to their minor’s treatment information/records. In applying this interpretation to Scenario #3, the therapist would have to obtain a written authorization from the minor before releasing the records to parents or the school administrator. The therapist could also rely on Health & Safety Code section 123115 to deny access by citing that the disclosure would harm the professional relationship between the therapist and minor. 

What if the parent who consented to treatment wants to know about general progress? Does this mean that therapists would need to get the minor’s written authorization even if the parent brought the child in? Not necessarily. California Civil Code section 56.1007 allows for therapists to disclose confidential information to parents involved in the minor’s care if the minor 1) is made aware and agrees; and 2) the minor was given the opportunity to object, but the minor does not. (Civil Code section 56.1007) This is also in line with the Minor Consent Laws, which require the treating therapist to involve parents, unless after consulting with the minor, the therapist determines parent’s involvement is inappropriate. 

As a practical matter, therapists who treat minors (especially those 12-years or older) are encouraged to inform the parents and the minors, at the outset of treatment, the expectations and limitations of confidentiality, including, but not limited to, when and to what extent treatment information may be disclosed to parents, when and how parents may be involved in treatment, and the usual permitted and mandatory exceptions to confidentiality (e.g. Tarasoff, harm to self, child abuse reporting). Ordinarily, when parents are seeking treatment, the minor patient is on board with the therapist providing general disclosures to parents/ legal guardians. In deciding when to breach the minor’s confidentiality it is prudent for therapists to document their clinical, ethical and legal rationale. 

Conclusion
The legal issues surrounding treating minors can be complicated, especially with respect to consent and confidentiality. The CAMFT Legal Department frequently receives calls from members with questions related to this topic. A thorough understanding and consideration of minors’ right to consent and right of confidentiality will help therapists appropriately respond to parents’ (or third parties’) requests for disclosure of minors’ treatment records. 


 Ann Tran-Lien, JD, is a staff attorney and the Managing Director of Legal Affairs at CAMFT. Ann is available to answer member calls regarding legal, ethical, and licensure issues.


 Endnotes

  1. Practitioners working with minors who seek to consent to their own treatment and pay for those services using Medi-Cal benefits should reach out to the minors’ Med-Cal plans to determine whether the plans have any additional requirements for covering minor’s consent-based services. 
  2. ““Parent” is used synonymously with “legal guardian” or other person who has authority to make health care decisions for the minor patient. 
  3. Cal. Health & Safety Code §123100
  4. Cal. Civil Code §56.11
  5. Cal. Health & Safety Code §123110

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.