FAMILY LAW INSTITUTE AGE OF CONSENT FOR MENTAL HEALTH TREATMENT; RELEASE OF RECORDS April 5, 2006...

FAMILY LAW INSTITUTEAGE OF CONSENT FOR MENTAL HEALTH

TREATMENT; RELEASE OF RECORDS

April 5, 2006

Thomas E. Sweeney, EsquireTsoules, Sweeney & Martin, LLC

29 Dowlin Forge RoadExton, PA 19341

Tel: 610-423-4200Fax:: 610-423-4201

[email protected]

Copyright© 2006 Tsoules, Sweeney & Martin, LLC 2

AGENDA

I. Minor’s Consent to MH Treatment – Act 147

II. Confidentiality: Control of Mental Health Treatment Records After Act 147

III. Special Issues

Shared Legal Custody

Parental Access to Records


MINOR’S CONSENT TO MEDICAL, DENTAL AND HEALTH SERVICES

Commonwealth v. Nixon, (563 Pa. 425, 761 A.2d 1151 Pa. 2000). Concurring opinion of Supreme Court Justice Cappy: “Under common law, a minor is deemed incompetent to provide informed consent…Until the age of majority, a minor’s parents make medical treatment decisions on his or her behalf.”

“The Pennsylvania legislature, however, has rendered the authority of parents to speak for their minor child with respect to health care less than absolute in certain circumstances, by enacting several statutes that allow minors to speak for themselves.”


MINOR’S CONSENT TO MEDICAL, DENTAL AND

Individual Consent (35 P.S. 10101)

Consent for Children with Minor Parents (35 P.S. 10102)

Pregnancy, Venereal Disease and Other Reportable Diseases (35 P.S. 10103)

When Consent Unnecessary (35 P.S. 10104)

Liability for Rendering Services (35 P.S. 10105)


MINOR’S CONSENT TO MEDICAL, DENTAL AND HEALTH SERVICES

35 P.S. 10101

Emancipation

Substance Abuse Services71 P.S. § 1690.112

Abortion Control Act: 18 Pa. C.S.A. § 3201 et. seq


MINOR’S CONSENT TO MENTAL HEALTH TREATMENT AFTER ACT 147

AGENDA

Consent: Outpatient Treatment

Definitions

Consent: Inpatient Treatment

Release of Records



Amends current Pennsylvania Statute Governing Minors’ Rights to Consent To Medical, Dental and Health Services (35 P.S. §10101 et seq.) (the “Minor’s Consent Act”)

Establishes or modifies Statutory Rights for Minors and Parents regarding Mental Health Treatment in Pennsylvania

Effective January 22, 2005



CONSENT FOR OUTPATIENT TREATMENT

“Any minor who is fourteen years of age or older may consent on his or her own behalf to outpatient mental health examination and treatment, and the minor’s parent or legal guardian’s consent shall not be necessary.” Act 147: §1.1(a)(1)

CONTINUED




A parent (“P”) or legal guardian (“LG”) of a minor less than eighteen years of age may consent to voluntary outpatient mental health examination or treatment on behalf of the minor, and the minor's consent shall not be necessary.

Act 147: §1.1(a)(2)

CONTINUED




“A minor may not abrogate consent provided by a P/LG on the minor's behalf, nor may a parent or legal guardian abrogate consent given by the minor on his or her own behalf.” Act 147: §1.1(a)(3)

- “Abrogate” means to cancel, repeal or annul.



Definitions

“Mental Health Treatment” means a course of treatment,

including evaluation, diagnosis, therapy and rehabilitation designed

and administered to alleviate an individual’s pain and distress and

to maximize the probability of recovery from mental illness. The

term also includes care and other services which supplement

treatment and aid or promote recovery. Act 147: 1.1(d)

CONTINUED


CONFIDENTIALITY – CONTROL OF RECORDS

Constitutional Right to Privacy – PennsylvaniaIn re “B” 394 A.2d 419 (Pa. 1978)

“We conclude that in Pennsylvania, an individual’s interest in preventing the disclosure of information revealed in the context of a psychotherapist-patient relationship has deeper roots than the doctor-patient privilege statute, and that the patient’s right to prevent disclosure of such information is constitutionally based.”



Constitutional Right to Privacy – Pennsylvania

In the Matter of T.R., 731 A.2d 1276 (Pa. 1999)

“In holding that the mother should be compelled to undergo a psychiatric examination the results of which are to be released to the parties, Superior Court not only ignored the holding in re “B”, which we find indistinguishable from the present case, but also elevated the interests of the state beyond all reasonable limits. We conclude, as we did in re “B”, that there is no governmental interest sufficient to negate the mother’s assertion of her right of privacy.”



Definitions

“Inpatient Treatment” means all mental health treatment that requires full-time or part-time residence in a facility that provides mental health treatment. Act 147: 1.1(d)



What is “Outpatient Mental Health Treatment”?



Outpatient Treatment

Issues/Topics

Separate but Equal Consent

Medications

Non-MHT Services – P/LG Consent

“In Loco Parentis”


ACT 147:CONSENT FOR INPATIENT TREATMENT

“Parent/Legal Guardian (“P/LG”) of minor under 18 may consent to voluntary inpatient treatment pursuant to MHPA on the recommendation of a physician who has examined the minor. The minor's consent is not necessary.”

Act 147: §1.1(b)


ACT 147: INPATIENT TREATMENTWhat Has Changed?

Act 147: § 1.1(b)– Parent and legal guardian may consent to voluntary

inpatient treatment pursuant to MHPA on behalf of minor less than 18.

– Physician recommendation required. MHPA: 50 P.S. § 7201

– Parent, guardian, or person in loco parentis for child less than 14…deemed acting for child.

– 14 year old may consent to voluntary IPT


Act 147: INPATIENT TREATMENT

Act 147 does not restrict or alter:

a minor’s or parent’s rights under the Mental Health Procedures Act (“MHPA”)


ACT 147: INPATIENT TREATMENT

P/LG may not abrogate consent of minor; minor may not abrogate consent of P/LG. Act 147: §1.1(b)(4)



Facility Director shall:

Provide minor (14-17 years of age) with an explanation of the nature of the treatment and minor’s rights;

File a petition with the Court, if minor objects

to treatment consented to by P/LG.

Act 147: §1.1(b)(7)(8)


Act 147: INPATIENT TREATMENT

Court shall promptly:

• Appoint attorney for minor.

• Schedule hearing within 72 hours of the filing of the petition.

• Judge or mental health review officer determines whether voluntary mental health treatment is in the best interest of the minor.

Act 147: §1.1(b)(8)CONTINUED



For patient treatment to continue against minor’s wishes, the Court must find voluntary inpatient treatment necessary by clear and convincing evidence that:

• Diagnosed mental disorder;

• Disorder is treatment in the particular facility; or

• Least restrictive environment.



Nothing in this subsection shall prevent a non- consenting parent who has legal custody rights of a minor child to object to “voluntary” inpatient services approved by consenting parent by filing a petition in Court; hearing to be held in 72 hours.

Act 147: §1.1(b)(11)



Issues/Topics

“Parental/LG Commitment” of minor 14 – 17 years of age

Physician recommendation required. What type of physician?

Right to object process created for “Parental Commitment Process”

When is “petition” required to be filed?


ACT 147 – INPATIENT TREATMENT

Issues/Topics

• Act 147 Hearing

- P/LG legal rights

- Utilization Review

- Retroactive Audits



AGENDA

Act 147 (35 P.S. § 10101.2)

Shared Legal Custody

Testimonial Privileges

Parental Access to Records

§ 5309 vs. Act 147



IMPACT OF ACT 147 (Exhibit C)

§1.2(A) Limited P/LG Rights to Release Minors (14+) Records

§1.2(B) Limit on P/LG Rights to Release§1.2(C) P/LG Right to Information to Give Informed

Consent§1.2(D) Minor (14+) Control of Mental Health Treatment

Records§1.2 (E) Consent to Release Other Than Those Above

Subject to MHPA



ACT 147: ADOLESCENT RIGHTS

Consent to release of mental health records for all purposes and in all circumstances other than those provided for in this section shall be subject to the provisions of the “Mental Health Procedures Act,” and other applicable federal and state statutes and regulations.

Act 147: 1.2(E)


CONFIDENTIALITY CONTROL OF RECORDS

ACT 147: RELEASE OF RECORDS

Except to the extent set forth in subsection 1.2(A), (B) or (C), the minor shall control the release of the minor's mental health treatment records and information to the extent allowed by law.

Act 147: 1.2(D)



ACT 147: RELEASE OF RECORDS

When a minor has provided consent to outpatient mental health treatment under Section 1.1(a)(1), subject to subsection 1.2(A)(2) (records related to prior treatment consented to by minor), the minor shall control the records of treatment to the same extent as the minor would control the records of inpatient care or involuntary outpatient care under the “Mental Health Procedures Act” and its regulations.

Act 147: 1.2(D)



MENTAL HEALTH PROCEDURES ACT - CONFIDENTIALITY

Statute: 50 P.S. § 7111 Regulations: 55 Pa. Code § § 5100.31 – 5100.39



INPATIENT PSYCHIATRIC SERVICES

Who has the Right to Release? Any competent individual over the age of 14 may authorize the release of his or her inpatient (i.e., residential) mental health records.

In Christy v. Wordsworth-At-Shawnee, 749 A.2d 557 (Pa. Commw. Ct. 2000), a mental health patient brought suit against a treatment provider, fellow patient and others to recover for a sexual assault by a fellow patient. The parents authorized release of their child’s mental health records. The court held that the child who was over 14 was the only one who could authorize the release.



ACT 147: LIMITED RIGHTS OF P/LG

When a parent or legal guardian (“P/LG”) has consented to treatment of a minor fourteen years of age or older under Section 1.1(a)(2) (Outpatient Treatment) or (b)(1) (Inpatient Treatment), the following shall apply to the release of the minor's records and information:

Act 147: § 1.2 (A)

CONTINUED




“The P/LG may consent to release of the minor's medical records and information, including records of prior mental health treatment for which the P/LG had provided consent, to the minor's current mental health care treatment provider.”

Act 147: §1.2(A)(1)CONTINUED




If deemed pertinent by the minor's current mental health treatment provider, the release of information under this subsection may include a minor's mental health records and information from prior mental health treatment for which the minor had provided consent to treatment.

Act 147: §1.2 (A)(2)CONTINUED




“The P/LG may consent to the release of the minor's mental health records and information to the primary care provider if, in the judgment of the minor's current mental health treatment provider, such release would not be detrimental to the minor.”

Act 147: §1.2(A)(3)



ACT 147: LIMITED RIGHTS OFP/LG

Release of mental health records and information under subsection (A) shall be limited to release directly from one provider of mental health treatment to another or from the provider of mental health treatment to the primary care provider.

Act 147: §1.2(B)




The P/LG who is providing consent to inpatient and outpatient mental health treatment of a minor (14+) shall have the right to: information necessary for providing consent symptoms conditions to be treated medications other treatments risks and benefits expected results

Act 147: §1.2(C)


SHARED LEGAL CUSTODY

In re Wesley J.K., 445 A.2d 1243 (Pa. Super. Ct. 1982)

Hill v. Hill, 761 A.2d 1242 (Pa. Super. Ct. 2000)

Senatore v. Senatore, 58 Pa. D. & C. 4th 564 (Pa Com. Pl. 2000)

Andrews v. Andrews, 601 A.2d 352 (Pa. Super Ct. 1992)



Grossman v. State Bd. of Psychology, 825 A.2d 748 (Pa. Commw. Ct. 2003)

Facts State Board of Psychology Decision Commonwealth Court Decision Supreme Court



Psychological Services after Grossman

Other Health Care Services



Access to Records and Information:

In view of the public policy that each parent shares in the rights and responsibilities of the rearing “…each parent shall be provided access to all the medical, dental, religious or school records of the child, the residence address of the child and of the other parent and any other information that the Court deems necessary.” (23 Pa. C.S.A. § 5309)



ACCESS TO RECORDS AFTER ACT 147

Who Controls Records Under

23 Pa. C.S.A. § 5309 and

After Act 147?



TESTIMONIAL PRIVILEGES – FEDERAL LAW

“The federal privilege, which clearly applies to psychiatrists and psychologists, also extends to confidential communication made to licensed social workers in the course of psychotherapy.”

United States Supreme CourtJaffe v. Redmond518 U.S. 1 (1996)



TESTIMONIAL PRIVILEGES – PENNSYLVANIA

Physician-Patient – (42 Pa. C.S. §5944) Psychiatrist/Psychologist – (42 Pa. C.S. §5944) School Personnel – (42 Pa. C.S. §5945) Sexual Assault Counselors – (42 Pa. C.S. §5945.1)

Spousal Communications to a Qualified Professional – (42 Pa. C.S. §5948)

FAMILY LAW INSTITUTE AGE OF CONSENT FOR MENTAL HEALTH TREATMENT; RELEASE OF RECORDS April 5, 2006...

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Transcript of FAMILY LAW INSTITUTE AGE OF CONSENT FOR MENTAL HEALTH TREATMENT; RELEASE OF RECORDS April 5, 2006...