HEALTH LAW SUPPLEMENT Fall 2012

Minors’ consent to mental health care in New York State:

The age of majority in New York for the purpose of consenting to any health care is 18 in New York State. Certain classes of persons under 18 are also considered competent in New York to consent to health care, including mental health treatment. These persons are:
■the parents of a child for themselves and the child,
■any married persons for themselves and on behalf of their children,
■any pregnant woman for care relating to prenatal care; and
■an emancipated minor.

For parents, married persons and pregnant girls, clinicians are specifically allowed by law to rely solely on the person’s statements and need not seek other verification of their status. A pregnant minor seeking psychotherapy frequently seeks counseling for psychological issues related to her pregnancy. This arguably falls within the definition of “prenatal counseling.” An emancipated minor is defined as one who no longer lives with his or her parents and no longer relies on them for financial support. An expanded definition of emancipation was provided by one court:

Children are emancipated if they become economically independent of their parents through employment, entry into military service, or marriage, and may also be deemed constructively emancipated if, without cause, they withdraw from parental control and supervision.

Sometimes, minors who do not fall into one of the above categories will independently seek mental health care and not want their parents to know about or be contacted to consent to the treatment. New York State has a specific statute governing such situations. Although the law specifically governs only actions taken in State licensed facilities, psychotherapists in private practice may also follow the guidelines. The risk of not following them is that a parent of the minor might sue or file a complaint alleging that treatment was rendered without appropriate consent. With a private therapist, this could still be alleged even if the guidelines were followed, but the therapist would have a greater chance of justifying his or her actions if the guidelines were followed.

Section 33.21(c) of New York Mental Hygiene Law states that psychiatrists, psychologists, and therapists supervised by a member of those two professions may provide minors with treatment without parental consent if the following three conditions are met:

One, the minor is knowingly and voluntarily seeking treatment;
Two, the therapy is clinically indicated and necessary to the minor’s well-being; and
Three, no parent is reasonably available, that is, cannot be contacted despite the clinician’s diligent efforts; or obtaining a parent’s consent would have a detrimental effect on the course of treatment; or a parent has refused consent and a physician has determined that treatment is necessary and in the best interests of the minor.

The law further requires that the clinician fully document the reasons for his or her determinations and have the minor sign a written statement indicating that the conditions are met. The term “knowingly and voluntarily” in the statute refers to the minor’s capacity to consent. This is to be assessed by the clinician and is defined as “the minor’s ability to understand and appreciate the nature and consequences of the proposed treatment, including the benefits and risks of, and alternatives to such proposed treatment, and to reach an informed decision.”

Notice that this law does not seem to allow clinical social workers, mental health counselors, marriage and family therapists, psychoanalysts, or psychiatric nurse practitioners practicing independently to treat minors without parental consent. As mentioned above, however, this law, governs only State licensed facilities. The restriction by profession does not seem to me to be founded on any sound reasoning or on comparative scopes of practice, perhaps especially regarding LCSW-R’s whose scope of licensure has been found by a court to be essentially the same as psychologists. From my experience of the lack of professional prosecution, licensed experienced therapists who treat a minor without parental consent and who follow these guidelines may find the level of risk of doing so acceptable.

Note also that the law treats differently those situations where a parent knows of the child’s desire for treatment and has actively refused to consent to it and, on the other hand, situations where the parent doesn’t know of the child’s desire for treatment. Where the parent has actively refused, the therapist must consult with a physician and obtain from the physician an opinion that treatment is necessary. And note that written informed consent by the minor is needed. (Contact our office for a sample of such a form).

One final caution should be added regarding the treatment of minors: it is inadvisable for private non-medical psychotherapists to treat minors without parental consent specifically for alcohol or substance abuse. New York law permits physicians and only physicians to treat minors for alcohol or substance abuse without parental consent if the physicians make similar determinations to those listed above. That this law does not contain permission for any non-medical therapists to do the same could be construed as a determination that only physicians have the required training for such treatment. This limitation does not extend to non-medical therapists treating minors in institutional or clinic settings however.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFICS OF YOUR SITUATION.

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