Treatment Of Minors Without Parental Consent

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Avoiding Liability Bulletin – November 2010

 … California has been one of the more liberal states when it comes to allowing treatment of a minor without parental consent. Now, as a result of legislation signed by Governor Schwarzenegger in late September 2010, the law will soon significantly expand the rights of minors (twelve years of age or older) to access mental health care or counseling without the consent of a parent. Effective January 1, 2011, minors who are twelve or older will be able to obtain outpatient mental health treatment or counseling from, for example, a licensed marriage and family therapist, licensed clinical social worker, or clinical psychologist provided that the practitioner determines that the minor is mature enough to participate intelligently in such outpatient treatment or counseling. Licensed professional clinical counselors are not as yet covered by this law allowing for treatment of minors without parental consent.

Under current law (2010), the practitioner must additionally be able to determine, as a pre-condition to treatment, that the minor is either the alleged victim of child abuse or that the minor would present a danger of serious physical or mental harm to self or others without such mental health treatment or counseling. This required determination by the practitioner is effectively eliminated by the passage of this new law. The practitioner’s burden is therefore substantially lessened, since determining whether or not the minor is able to participate intelligently in mental health treatment is seemingly not a difficult determination.

The law does place some burdens on the practitioner with respect to parental involvement in the mental health treatment of the minor and requires documentation of certain matters by the provider of care. More specifically, the statute requires parental (or guardian) involvement in the treatment of the minor, unless the therapist finds, after consulting with the minor, that such involvement would not be appropriate under the circumstances. The therapist must state in the records whether and when he or she attempted to contact the minor’s parent or guardian, and whether the attempt to contact was successful or unsuccessful, or the reason why, in the opinion of the therapist, it would be inappropriate to contact the minor’s parent or guardian.

The author of the bill argued that the general requirement of parental consent to provide mental health services to minors was an unnecessary barrier to the treatment of children, where early intervention and prevention is so important. He argued that this barrier was especially harmful to certain populations of youth, such as gay, bisexual, lesbian, and transgender youth, youth from immigrant families, homeless youth, and youth from cultural backgrounds that do not condone receiving mental health services. This change in law, the author argued, will mean that minors do not have to wait until their mental health deteriorates, and their safety is compromised by suicide, substance abuse, or violence, to receive services. Again, the treating practitioner will no longer have to make determinations regarding the dangerousness of the minor.

What is the status of the law in your state of practice? Are there significant restrictions on treating a minor without parental consent? Should the law be changed to enable greater access to mental health care or counseling for minors?

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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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