Minors to Consent to Treatment

Second, there are a number of statutes which authorize minors to consent to certain types of medical treatment. Medical treatment covered by these statutes includes:

1. Pregnancy, Contraception, and Abortion. Care for the prevention or treatment of pregnancy (including contraception and abortion, but not sterilization) for minors of any age (Family Code §6925). The right of a minor to consent to pregnancy related services includes genetic counseling and testing ser- vices which, under the law, must be offered to all pregnant women. (Health & Safety Code §125000.) A law which would have established a parental or court approval requirement for abortion is NOT IN EFFECT, since the California Supreme Court has decided that the law violated minors’ right of privacy, American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, and California voters have rejected three (3) subsequent state propositions that would have required parental notification related to abortion. Most recently, in 2008 and 2005, Californians defeated Propositions 4 and 73, respectively, which would have required parental notification related to performance of abortion services for minors;
2. Contagious Diseases. Care related to the diagnosis or treatment of any infectious, contagious, or communicable disease of the type which must be reported to the local health officer (or is a related sexually transmitted disease, as determined by the State Public Health Officer) if the minor is twelve (12) or older (Family Code §6926);
3. Sexually Transmitted Diseases. Care for the prevention, diagnosis or treatment of a sexually transmitted disease if the minor is twelve (12) or older (Family Code §6926);
4. Rape. Care related to the diagnosis or treatment of rape if the minor is twelve (12) or older (Family Code §6927);
5. Sexual Assault. Care related to the diagnosis or treatment of sexual assault for a minor of any age (but treating physician must attempt to contact the child’s parents or legal guardian unless the physician “reasonably believes” that the parent or guardian committed the sexual assault) (Family Code §6928);

   NOTE: If the physician attempts to contact the parents or legal guardians, the date and time of that attempt and the results thereof should be documented in the minor’s medical record. If the physician does not attempt to make such contact because the physician believes a parent/guardian is the perpetrator of the assault, the physician should note in the minor’s medical record that the physician: 1) did not attempt the contact; and 2) has made an appropriate child abuse report. For more detailed information about the requirements of the child abuse reporting laws, see CMA ON-CALL document #3650, “Child Abuse or Neglect.”

6. Mental Health. Mental health treatment or counseling on an outpatient basis (not including convulsive therapy, psychosurgery or psychotropic drugs), or residential shelter services, if the minor is 12 or older and mature enough to participate intelligently and either: 1) the minor is an alleged victim of incest or child abuse; or 2) there is danger of serious physical or mental harm to the minor or others without such treatment. The treating physician must contact and involve the parents unless the physician believes such contact would be inappropriate. (Family Code §6924.) See discussion above. Again, the physician should document any attempt to contact the parents or guardians and the results of the attempt. If the physician believes a contact would be harmful to the physician-patient relationship or the minor’s family relationships, the physician should note that fact and the reasons therefor in the minor’s medical record.

   “Residential shelter services” are defined to mean the provision of residential and other support services to minors on a temporary or emergency basis in a facility which services only minors by a governmental agency or other specified entities or individuals;

7. Drug or Alcohol Abuse. Care related to the diagnosis or treatment of drug or alcohol- related problems (not including treatment with methadone or levoalphacetylmethadol (“LAAM”)) if the minor is 12 or older. The treating physician must contact the parents or guardian and give them an opportunity to participate unless the physician believes such contact would be inappropriate. (Again, the physician should document any contact and the results thereof, or the reasons no contact was attempted, in the minor’s medical record.) Moreover, parents have the right to seek such care and obtain the resulting medical information, over their child’s objection. (Family Code §6929.) However, federal laws prohibiting the disclosure of certain sub- stance abuse records may control over this state law; and
8. HIV Tests. The performance of an HIV test for minors twelve (12) or older (Health & Safety Code §121020).

These statutes generally authorize a physician to rely on a minor’s consent obtained pursuant to the statutes. Unless otherwise provided by statute, a minor does not have the exclusive authority to consent to a particular treatment; that is, the minor’s parent(s) or guardian can legally consent to certain treatment even if the minor objects. However, effective medical treatment often cannot be provided to an objecting patient. Therefore, it would be advisable in such a case for a physician to discuss the matter with the minor and the parent(s) or guardian and attempt to achieve a resolution that is satisfactory to all concerned. Of course, liability may still be imposed if the physician fails to obtain the minor’s informed consent or is otherwise negligent.

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Furthermore, if the minor has the legal right to consent, the minor generally controls the disclosure of medical information related to that treatment and can refuse to allow disclosure of the information to his or her parents. (Health & Safety Code §123115 and §123110.) Further, federal law allows a minor who has the legal right to consent to request that the provider not send information to the plan if the minor pays the bill in full. The Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 requires physicians covered by HIPAA to comply with an individual’s request to restrict disclosure of protected health information to a health plan if:

• The disclosure is for the purposes of carrying out payment or health care operations and is not otherwise required by law; and
• The protected health information at issue pertains solely to a health care item or service for which the individual, or person other than the health plan on behalf of the individual, pays out-of-pocket and in full.

(45 C.F.R. §164.522(a)(1)(vi); 42 U.S.C. §17935(a).)

Thus, except as otherwise provided in the statutes or pursuant to a written authorization signed by the minor, the physician is prohibited from disclosing medical information concerning such care to the minor’s parents or legal guardian. A breach of this confidentiality requirement may subject the physician to liability, even though the physician may otherwise be unable to obtain payment from the child’s parents. For more information on laws pertaining to access to minor records under patient access laws, see CMA ON-CALL document #4205, “Patient Access to Medical Records.” For more information on physician obligations to restrict disclosure of PHI to health plans, see CMA ON-CALL document #4202, “Health Plan Access to Medical Records.”

A physician may, of course, report suspected child abuse to the proper authorities (and has a duty to do so) without violating the restrictions of the Confidentiality of Medical Information Act or the HIPAA Privacy Rule. See CMA ON-CALL document #3650, “Child Abuse or Neglect.”

If the minor has the legal right to consent to particular treatment, what governs disclosure of medical information that is not related to that treatment? Consider, for instance, a pregnant minor who is authorized to consent to medical care related to the treatment of pregnancy who does not want information about her pregnancy or the fact thereof disclosed to her parents. During the pregnancy, it is determined that the minor is in need of non-pregnancy-related surgery that poses significant risk to the patient. In California, the state of pregnancy does not automatically deem a minor emancipated. Thus, if the pregnant minor has not obtained emancipated status by court order or one of the other methods provided by statute, the minor patient is not specially authorized to consent to the surgery. Providing the minor’s parents with information regarding the risks involved with the surgery by necessity entails disclosing information regarding the minor’s pregnancy, in violation of the minor’s consent regarding disclosure of information. However, not providing information to the minor’s parents regarding the risks involved in the surgical procedure could expose the physician to liability for failing to obtain the informed consent of the minor’s parents for the surgery.

In such situations, the law seems to favor protection of the physician’s relationship with the minor patient and honoring the minor’s right to control disclosure of his/ her medical information. For instance, a minor’s parent can be denied access to a minor’s medical records when a physician determines that such access would have a detrimental effect on the physician’s professional relationship with the minor patient or the minor’s physical safety or psychological well-being. The law specifically protects the physician from liability for such a decision except when the decision is found to be made in bad faith. (Health & Safety Code

§123115(a)(2).) Because these situations are very fact- specific, physicians are best advised to contact their professional liability carrier or their personal attorney for guidance and advice.

The parents or guardian of a minor are not liable for medical care or dental care provided to the minor on the minor’s consent.

When a minor seeks medical treatment for which the minor has the legal power to consent, e.g., treatment for the prevention and care of pregnancy, and the minor’s parents have no knowledge of the proposed care, the physician would be well-advised to discuss the source of payment with the minor before services are rendered. The physician and minor should reach an understanding concerning: 1) who is responsible for paying the cost of the medical treatment; and 2) to whom the physician can disclose such medical information that is necessary to obtain payment for the treatment. As is mentioned above, a minor who pays the bill in full may request that the physician not submit a claim to the insurance company.

If such an understanding is not reached, the minor may enter into the contract for services with the physician believing that payment for the treatment will be provided by the minor’s parents’ insurance company without the minor’s parents being notified of the care rendered.

Civil Code §56.10(c)(2) and the HIPAA Privacy Rule permit a physician to disclose a patient’s medical information to an insurer or any other person or entity responsible for paying for the health care services rendered to the patient, to the extent necessary to allow responsibility for payment to be deter- mined and payment to be made.

However, seeking payment from the insurance company may have several untoward results if the payment/disclosure questions have not been resolved. First, the insurer may send a notice of coverage (or non-coverage) or an explanation of benefits notice to the minor’s parents which will effectively inform (or at least alert) the parents that medical care has been rendered and will no doubt cause them to make specific inquiries of the minor. (When a court has ordered a parent to provide health insurance coverage for a child, the employer of the insured parent or the insurer shall provide any information, including the health insurance membership and any other information provided to the covered parent about the child’s health care coverage to the non-covered parent having custody of the child. (Family Code §3751.5.)

Second, the insurer may refuse payment, if the medical care rendered does not fall within the plan’s coverage. In that case, the physician’s only means of obtaining compensation would be to bill the minor’s parents for the health care services, which would disclose the specific nature of the treatment to the parents.

Such disclosure may put the physician at risk of liability. Despite §56.10(c)(2) (see discussion above), a second, more specific statute suggests that this is impermissible. Health & Safety Code §123115 explicitly provides that a minor’s “representative” (i.e., parent) is not entitled to inspect or obtain copies of any medical records pertaining to care to which the minor has legal power to consent. In addition, if the minor has the power to consent to the care at issue, federal law prohibits the disclosure of certain substance abuse records to the minor’s parents for purposes of payment without the minor’s consent. (42 C.F.R. §2.14(b).) Disclosing such information to the minor’s parents may also have a detrimental impact on the physician’s on-going relationship with the minor. Finally, it is possible that such disclosure could violate the minor’s right of privacy. See text above.

Furthermore, even if the minor consents to disclosure to his or her parents after the care has been rendered, the minor’s parents may refuse to pay, arguing that they did not authorize the medical services that were provided. While the minor and the minor’s parents are concurrently responsible for the payment of medical care services rendered to the minor (except where the minor’s parents are specifically relieved of such liability, (see, e.g., Family Code §6922, 57 Ops.Cal.Atty.Gen. 28 (1974)), obtaining payment from the parents under these circumstances would be problematic at best and would likely further fracture the relationship the physician has with the minor’s family. Therefore, the source of payment for the minor’s care should be determined at the outset.

In order to avoid a possible suit for unauthorized breach of confidentiality, to preserve the integrity of the physician-patient relationship, and to ensure the receipt of compensation, a physician would be well- advised to ask the minor how payment will be pro- vided and to obtain the minor’s written consent to dis- closure of the minor’s medical information to the minor’s parents’ insurance company and/or to the minor’s parents for purposes of payment. If the minor refuses to consent to such disclosure, the physician may wish to refer the minor to another source of care or ask the minor to pay directly for the services.