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Ask Our Attorney: Commonly Asked Questions About the Treatment of Minors

FOCUS - National Association of Social Workers (Mass. Chapter) Barry Mintzer October 7, 2012

Q:  Whose consent is required to provide mental health treatment to a minor? 
A:  For two-parent families, the consent of one parent is legally sufficient to authorize care to a minor. For children of divorced, legally separated or unmarried parents, the parent with legal custody may consent to treatment.  Social workers should ask to see a copy of the court document conferring legal custody on the parent who is seeking care., In cases where divorced parents share legal custody, which is now common, while either parent may consent, the social worker should get written consent from both parents as a matter of risk management. If the Department of Children and Families (DCF) has legal custody, DCF may have the right to consent on behalf of the child but there is no way to know without checking with DCF. This is because there are cases where DCF is granted some but not all of the legal powers that constitute legal custody. 

Q:  May minors consent to their own mental health treatment? 
A:  The legal age of majority in Massachusetts is eighteen for most purposes, and, as a general rule, minors are not legally able to consent to their own mental health treatment and medical care. There are, however, statutory and case law exceptions.  M.G.L. chapter 112, § 12F, permits a minor to consent to medical care if she/he is 1) married, widowed or divorced, 2) a member of the armed services, 3) the parent of a child, 4) living separate and apart from her/his parents and managing her/his own financial affairs, or 5) pregnant or believes herself to be pregnant. Another statute permits a minor sixteen or older to admit herself/himself voluntarily to a state psychiatric hospital.

In the 1977 case Baird v. Bellotti, the Massachusetts Supreme Judicial Court adopted the "mature minor" doctrine, which, when applied to mental health treatment, holds that a minor determined by the therapist to be capable of understanding the nature and consequences of the treatment to be provided may be deemed "mature," and thereby capable of giving consent. There is no particular age at which a minor becomes "mature." However, it would be unusual for a minor under the age of twelve to be considered a "mature minor." Careful records of the therapist's decision making should be maintained.  Unfortunately, the Board of Registration of Social Workers has adopted a regulation that incorrectly interprets the mature minor doctrine as requiring court action.  A social worker who abides by the court’s ruling is placing himself at risk of violating the Board’s regulation.

While a therapist may determine that a child is a mature minor, that determination may not constrain the therapist from notifying the client's parent(s) if the therapist and the minor client establish those ground rules through written informed consent. Massachusetts law requires all licensed practitioners to discuss with the client the nature and extent of confidential communications, known as informed consent, during the initial stage of treatment. Informed consent statements should always be in writing and should state the circumstances, if any, in which the social worker will disclose information to parents.

Q:  When may a parent see the treatment record and receive information about their child's treatment or therapy? 
A:  Parents generally have the right to see the treatment records of their children. This includes non-custodial divorced parents, for whom state law provides equal rights to access treatment records. There are exceptions.  In the 1987 case, Adoption of Diane,  the Massachusetts Supreme Judicial Court stated, “where the parent and child may well have conflicting interests, and where the nature of the proceeding itself implies uncertainty concerning the parent’s ability to further the child’s best interests, it would be anomalous to allow the parent to exercise the privilege on the child’s behalf.”  This exception typically applies when parents are in divorce proceedings. In such cases, where one parent requests a copy of the record, the social worker should inform the parent that the record may only be provided if a court waives the child’s privilege. 

Social workers should also look to the regulations of the Board of Registration of Social Workers (they are online), and which state:  “a social worker shall, upon the request of a parent or legal guardian of a minor client…provide a copy of that minor client’s clinical treatment record…”  There is an exception to this rule where the minor client “expressly objects to the disclosure of those communications,” and in such cases the social worker can provide a treatment summary or can decline to provide anything if any disclosure to the parent “would  result in identifiable physical or emotional harm to that minor…”  Unfortunately, this exception in the Board’s regulations does not cover a situation where the social worker believes providing a parent with a copy of a minor's treatment records would be contrary to the minor’s interests and the minor is too young to object to the disclosure.  The Board’s regulations are in need of revision.

Q:  What should a social worker do in response to a guardian ad litem (GAL) request for information about a minor client's treatment? 
A:  There is no statutory exception to confidentiality permitting a social worker to speak with a GAL.  A social worker confronted with a request for information from a GAL should either first obtain the written consent of the parent or legal guardian of the minor client before speaking with the GAL, or, in the case of a mature minor, obtain the minor’s written consent.  If the social worker is unable to obtain such written consent, she should notify the GAL, who will either seek the parent's or minor’s written consent or notify the court. 

This article was published in October 1997; Revised in 2012.

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