Consent to Treat Minor (Sole and Joint Legal Custody)

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Avoiding Liability Bulletin – March 2007

Divorce (marital dissolution), child custody, and visitation disputes often involve very contentious parties who will not be hesitant to complain about a therapist or counselor who treats their minor child without appropriate consent. Litigating parties sometimes have a misunderstanding about custody and control issues, including consent to treat, and sometimes they will try to scare the therapist or counselor into doing something that may not be in the patient’s best interests (or the best interests of the counselor or therapist).

If a minor is not able to consent to treatment on his or her own behalf (state laws vary widely in this regard), then generally, consent must be given by a parent or guardian, or under certain circumstances, by both parents. In an intact family, the general rule is that either parent may consent to the child’s treatment. Typically a therapist or counselor may want to get the consent of the other parent, or may want to inform the other parent of the treatment, but at other times, such action may not be possible or warranted. Some state laws, however, contain requirements regarding notification of the other parent. Those laws may provide for exceptions to the requirement of notification.

With respect to sole “legal custody,” the person who has such custody is the one who must authorize or consent to treatment of the minor. The sole legal custodian is generally viewed as the one who has the right and the responsibility to make the decisions related to the health, education and welfare of the child. “Physical custody” is simply about whom the child resides with – sometimes referred to as the residential parent or the custodial parent. A parent who does not have legal custody, whether sole or joint, will generally have limited rights with respect to their minor child – such as limitations regarding the authorizing or consenting to care and accessing the medical or mental health records of the child. State laws vary widely with respect to the extent of such limitations.

With respect to joint legal custody, both parents will typically share the right and responsibility to make the decisions related to the health, education and welfare of the child. Stated otherwise, the general rule is that either parent may authorize or consent to treatment of their minor child unless the court order specifies otherwise. The court order will sometimes specify those circumstances when the consent of both parents is required, or when other conditions are placed upon the right of a joint custodian to act unilaterally. Again, some states may require notification of the other parent before or after a child is brought to a doctor or mental health professional by the other parent.

Sometimes the court order of joint legal custody may be ambiguous, such as when it requires the parents to consult with each other (rather than agree) prior to one of the parents obtaining care for the child. Therapists and counselors must be careful under these circumstances and do not want to commence treatment without proper authority. Aside from respectfully declining to treat under such circumstances (with appropriate explanation), the therapist might want to seek clarity about the court order from the attorney for the parent who seeks to obtain treatment for the minor. Perhaps that attorney would be willing to put something in writing with respect to his or her client’s compliance with the court order.

A safer way to proceed, if the circumstances warrant, is to tell the parent who seeks treatment that you will only treat the minor child if both parents consent. If they cannot agree, let the attorneys or the parties themselves work it out, perhaps with court oversight or involvement. It can be very disruptive to therapy and to the practitioner to be in the middle of a fight between two parents over whether or not treatment was appropriately authorized. These kinds of matters often find their way to the licensing board in the way of a complaint.

I have previously written (under the category of “Termination of Treatment” – in the June 2005 issue of the Avoiding Liability Bulletin – see the Archives section) about a troubling circumstance often faced by therapists and counselors in cases where there is joint legal custody and the court order requires the consent of both parents with respect to health care decisions. It is worth repeating here. Suppose that both parents consent to treatment of the child as per the requirements of the court order. Later, one of the parents calls the therapist or counselor and demands that he or she terminates treatment with the child. The parent may think of this or refer to it as a withdrawal or revocation of a consent previously given.

What is the therapist or counselor to do? What are the wishes of the other parent and the child? Should the therapist immediately cease treatment of the child? Could this constitute an abandonment or improper termination of the child’s treatment? These are but some of the questions that arise in such situations. It is important to point out here that each state may approach this situation differently and that there may be some ambiguity as to how this situation may be properly resolved. I have previously advised therapists in such situations to continue to treat the minor patient if the minor and the other parent want treatment to continue and if the therapist feels that a sudden termination would negatively affect the well being of the patient.

An argument in favor of continued treatment would be that the one parent is demanding a termination of treatment, but the court order requires the consent of both parents with regard to the major health care decisions affecting the child. The consent of both parents was acquired prior to commencement of treatment, and now the consent of both parents should be required for a termination. If the minor is a patient who under applicable state law can consent to his or her own treatment, the therapist’s decision to continue treatment is easier to make. Practitioners in such situations must be sure to obtain legal consultation before opting for such an approach, since the requirements and nuances of state law will affect the course of action taken.

I favor this approach (when lawful) because it puts the patient’s interests first and because it prevents the parent from manipulation. It is sometimes helpful to let the parent who demands a termination know that a sudden termination might be harmful to the child’s mental health and that the therapist will make note (in the records) of the fact that this was communicated to such parent. Depending upon circumstances, a court might view that parent’s action to be disruptive and manipulative, and this may affect the court’s ultimate determination of a custody or visitation arrangement.

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Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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