A Matter of Law: Privacy Rights of Minor Patients

by Legal and Regulatory Affairs Staff

One of the many complex legal issues facing practicing psychologists concerns the privacy and confidentiality rights of minor clients. If you treat minors, there are unique issues related to their privacy rights that are important for you to know. This article touches on several key considerations.

Practitioners who treat minors should begin by familiarizing themselves with state laws regarding minors’ confidentiality rights. Knowing applicable state laws may suddenly become vital, for example, if a parent demands to see information about his or her child in the practitioner’s records. If you trigger the HIPAA Privacy Rule, it also is important for you to understand how relevant state laws interact with HIPAA.

State laws on minors’ privacy rights vary considerably. In some states, for example, a child of a certain age, typically in his or her early teens, has a right to object to his or her parent’s request to access the minor’s record. In other states, the parents are allowed to access the child’s mental health records, but there may be limitations — for example, if a court denies access, or the psychologist determines that granting access is detrimental to the minor’s psychological well being.

The threshold issue surrounding minors’ privacy rights is who gets to make decisions about the privacy and disclosure of the minor’s mental health information. When you treat an adult, your legal and ethical obligations typically are to that client. Accordingly, your client is the person with whom you deal in addressing issues of privacy and confidentiality. However, when your client is a minor, you often must let the minor’s parent or legal guardian decide how to deal with privacy issues.

Your minor client’s privacy rights may be affected by written agreements you make with the parents and minor to set the parameters of how confidentiality will be handled in treating the minor child.

Some parents recognize or can be persuaded that their child is more likely to open up in psychotherapy and develop a better patient-psychologist relationship if there are clear limits on what information can be shared with parents. Accordingly, the parents may agree, for example, that they will only be notified in the event of an emergency, or will only receive general reports on goals for the therapy and their child’s progress.

Be aware, however, that parents may later be able to revoke agreements that limit their access to information. Future circumstances may cause one or both parents to rethink the agreement. If they become involved in divorce proceedings, for example, a parent might try to revoke the agreement in order to get information from the child to use against the spouse. You may wish to discuss with a knowledgeable local attorney whether and under what circumstances written agreements governing confidentiality may be revoked.

Even if an agreement with the parents is revocable in your state, it may still be worth considering for several reasons:

• A written agreement offers a vehicle to impress upon parents your view of the importance of confidentiality to successful therapy.
• Articulating your position before therapy begins and eliciting a reaction lets you identify at the outset those parents who are not willing to limit their access to information about the child’s treatment. Knowing this will help you decide whether you are willing to proceed with treating the child under those circumstances.
• An agreement with the parent gives you something to dissuade the parents from later seeking access to information, even if the parent ultimately has the power to revoke the agreement.

Practitioners should be particularly vigilant when treating a minor whose parents are either divorced or separated. Different custody arrangements may require that one parent or both consent to treatment. Meanwhile, some states have laws that spell out the rights of custodial or non-custodial parents to access the minor’s records. So not only is it important to determine at the outset which parent(s) has authority to consent to the child’s treatment; it also is crucial for you to know what rights each parent may have with respect to information about the child’s treatment.

If your practice triggers the HIPAA Privacy Rule, you also need to be aware of how the HIPAA Privacy Rule interacts with state law regarding minors.

Unlike with other parts of the HIPAA Privacy Rule, this is not simply a matter of determining whether the Privacy Rule or state law is more stringent — that is, more protective of privacy — and therefore takes precedence. Instead, in the area of minors’ rights to confidentiality, the Privacy Rule determines who controls the child’s privacy rights by looking to certain issues under state law.

One of these issues is whether the law allows a minor to consent to treatment. If a minor has consented to treatment under a state law that allows for it, the Privacy Rule generally lets the minor exercise his or her own privacy rights.

Yet the general rule under HIPAA is that the minor’s parent or guardian exercises the minor’s privacy rights. In other words, the parent or guardian would receive the privacy notice required by HIPAA, give consent for releasing the minor’s mental health information, and have the right to access and amend treatment records. As noted in the preceding paragraph, however, there are several exceptions to this general rule.

Additional information is contained in the individualized Explanation Form for each state included in HIPAA for Psychologists, the Privacy Rule compliance product available for purchase from the APA Practice Organization.

This article provides a brief overview of some key privacy and confidentiality issues that may arise when treating minor clients. It is essential for a psychologist who works with minor clients to be familiar with relevant state law, to recognize potential benefits and limitations of written agreements, to understand considerations that may apply when the minor’s parents are divorced or separated, and, if applicable, to know how relevant state law intersects with the HIPAA Privacy Rule.

This article is the fourth in a series, “A Matter of Law,” about the practical effect of various laws and regulations on practicing psychologists.

PLEASE NOTE: Legal issues are complex and highly fact-specific and require legal expertise that cannot be provided by any single article. In addition, laws change over time. The information in this article should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding individual circumstances.