Transcript ACT 147 - Rhoads & Sinon: Harrisburg Law Firm

PENNSYLVANIA BAR INSTITUTE
ACT 147: CONSENT TO
MENTAL HEALTH TREATMENT;
RELEASE OF RECORDS
March 16, 2005
Thomas E. Sweeney, Esquire
Tsoules, Sweeney & Martin, LLC
707 Eagleville Boulevard, Suite 100
Exton, PA 19341
Telephone: (610) 458-0600
Fax: (610) 458-0602
tsweeney@ tshealthlaw.com
www.tshealthlaw.com
Act 147
 Amends current Pennsylvania Statute
Governing Minors’ Rights to Consent To
Medical, Dental and Health Services (35 P.S.
§10101 et seq.) (the “Minor’s Consent Act”)
 Establishes or modifies Statutory Rights for
Minors and Parents regarding Mental Health
Treatment in Pennsylvania
 Effective January 22, 2005
Copyright©2005 Tsoules, Sweeney & Martin, LLC
2
ACT 147
Agenda
 Minors Consent Act
 Definitions
 Consent: Outpatient Treatment
 Consent: Inpatient Treatment
 Release of Records
Copyright©2005 Tsoules, Sweeney & Martin, LLC
3
MINORS CONSENT ACT
• Act 147 Amends the “Minors Consent to
Medical, Dental and Other Health Services”
(35 P.S. §1010 et seq.) (the “Minors Consent
Act”)
• Nothing in Act 147 is intended to restrict the
rights of a minor who satisfies the conditions of
the Minors Consent Act. Act 147: 1.1(c)
Minors Consent Summary - 031605-TES.doc
Copyright©2005 Tsoules, Sweeney & Martin, LLC
4
MINORS CONSENT ACT
Individual Consent: “Any minor who is 18
years of age of older, or has graduated from
high school, or has married, or has been
pregnant, may give effective consent to
medical, dental and health services for
himself or herself, and the consent of no
other person shall be necessary.”
Copyright©2005 Tsoules, Sweeney & Martin, LLC
5
MINORS CONSENT ACT
•
•
•
•
Consent for Children with Minor
Parents
Pregnancy, Veneral Disease and Other
Reportable Diseases
When Consent Unnecessary
Liability for Rendering Services
Copyright©2005 Tsoules, Sweeney & Martin, LLC
6
Act 147: Definitions
“Facility” means any mental health establishment, hospital, clinic, institution, center, day-care
center, base service unit, community mental
health center, or part thereof, that provides for the
diagnosis, treatment, care or rehabilitation of
mentally ill persons. Act 147: 1.1(d)
CONTINUED
Copyright©2005 Tsoules, Sweeney & Martin, LLC
7
Act 147
“Mental Health Treatment” means a course of
treatment, including evaluation, diagnosis, therapy and
rehabilitation designed and administered to alleviate an
individual’s pain and distress and to maximize the
probability of recovery from mental illness. The term
also includes care and other services which supplement
treatment and aid or promote recovery. Act 147: 1.1(d)
CONTINUED
Copyright©2005 Tsoules, Sweeney & Martin, LLC
8
Act 147
“Inpatient Treatment” means all mental health
treatment that requires full-time or part-time
residence in a facility that provides mental
health treatment. Act 147: 1.1(d)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
9
Act 147
Issues/Topics
 What is “Outpatient Mental Health Treatment”?
 What is “Inpatient Mental Health Treatment”?
Copyright©2005 Tsoules, Sweeney & Martin, LLC
10
ACT 147:
CONSENT FOR OUTPATIENT TREATMENT
“Any minor who is fourteen years of age or
older may consent on his or her own behalf
to outpatient mental health examination and
treatment, and the minor’s parent or legal
guardian’s consent shall not be necessary.”
Act 147: §1.1(a)(1)
CONTINUED
Copyright©2005 Tsoules, Sweeney & Martin, LLC
11
Act 147:
CONSENT FOR OUTPATIENT TREATMENT
A parent (“P”) or legal guardian (“LG”) of a
minor less than eighteen years of age may
consent to voluntary outpatient mental health
examination or treatment on behalf of the minor,
and the minor's consent shall not be necessary.
Act 147: §1.1(a)(2)
CONTINUED
Copyright©2005 Tsoules, Sweeney & Martin, LLC
12
ACT 47:
CONSENT FOR OUTPATIENT TREATMENT
“A minor may not abrogate consent provided by a
P/LG on the minor's behalf, nor may a parent or legal
guardian abrogate consent given by the minor on his
or her own behalf.” Act 147: §1.1(a)(3)
- “Abrogate” means to cancel, repeal or annul.
Copyright©2005 Tsoules, Sweeney & Martin, LLC
13
Act 147: Outpatient Treatment
Issues/Topics
 Separate but Equal Consent
 Medications
 Non-MHT Services – P/LG Consent
 “In Loco Parentis”
 Medical Consent Act: 11 P.S. 2511
 Grossman Case
Copyright©2005 Tsoules, Sweeney & Martin, LLC
14
STATE BOARD OF PSYCHOLOGY
Grossman v. State Bd. Of Psychology, 825 A. 2d 748 (Pa.
Commw. Ct., 2003)
Grossman was reprimanded and fined $1,000 in civil
penalties for having performed a custody evaluation on a
child without the consent of both parents who share joint
custody. Grossman met with the child even though the
father expressly prohibited him from doing so.
Copyright©2005 Tsoules, Sweeney & Martin, LLC
15
STATE BOARD OF PSYCHOLOGY
Grossman v. State Bd. Of Psychology, 825 A. 2d 748 (Pa.
Commw. Ct., 2003)
 State Board cited:
-
APA Guidelines – Custody
Hill v. Hill
 On appeal, Commonwealth Court affirmed the actions
of the Board.
 Court language: any “psychological evaluation, not
joint custody evaluations.”
Copyright©2005 Tsoules, Sweeney & Martin, LLC
16
SHARED CUSTODY
The term “shared custody” is defined as an order
awarding shared legal or shared physical custody,
or both, of a child in such a way as to assure the
child of frequent and continuing contact with
physical access to both parents. The terms
“shared custody” and “joint custody” are
synonymous.
Copyright©2005 Tsoules, Sweeney & Martin, LLC
17
SHARED CUSTODY
In re Wesley J.K., 445 A.2s 1243 (Pa. Super. Ct. 1982):
 “The philosophic premise of shared custody is the
awarding to both parents of responsibility for decisions
and care of the child.”
 “Shared custody allows both parents input into major
decisions in the child’s life.”
Copyright©2005 Tsoules, Sweeney & Martin, LLC
18
SHARED LEGAL CUSTODY
In re Welsey, J.K. (1982):
Guidelines for shared custody include:
(1) both parents are “fit”;
(2) both desire continuing involvement;
(3) both parents are seen by the child as sources of
security and love; and
(4) both parents are able to communicate and cooperate
in promoting the child’s bests interests.
Copyright©2005 Tsoules, Sweeney & Martin, LLC
19
SHARED LEGAL CUSTODY
 Andrews v. Andrews, 601 A.2d 352 (Pa. Super.
Ct., 1992)
 Hill v. Hill, 761 A.2d 1242 (Pa. Super. Ct., 2000)
 Senatore v. Senatore, 58 Pa. D. & C. 4th 564
(Pa. Com. Pl., 2000)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
20
ACT 147 – SHARED LEGAL CUSTODYSTATE BOARD OF PSYCHOLOGY
 Custody Evaluations:
-
APA Guidelines
State Board Disciplinary Actions
 Both Parents’ Consent Expected
Copyright©2005 Tsoules, Sweeney & Martin, LLC
21
ACT 147 – SHARED LEGAL CUSTODYSTATE BOARD OF PSYCHOLOGY
 Psychological Evaluations:
- Act 147 permits Adolescents to consent
- Gray Area: Both Parents’ consent
•
Children 1-13
•
Adolescent 14 -17 refuses to consent
 Screen Before Treatment for Joint Legal
Custody
Copyright©2005 Tsoules, Sweeney & Martin, LLC
22
ACT 147: INPATIENT TREATMENT
What Has Changed?
 MHPA: 50 P.S. § 7201
– Parent, guardian, or person in loco parentis for child
less than 14…deemed acting for child.
 Act 147: § 1.1(b)
– Parent and legal guardian may consent to voluntary
inpatient treatment pursuant to MHPA on behalf of
minor less than 18.
– Physician recommendation required.
Copyright©2005 Tsoules, Sweeney & Martin, LLC
23
ACT 147:
CONSENT FOR INPATIENT TREATMENT
“Parent/Legal Guardian (“P/LG”) of minor
under 18 may consent to voluntary inpatient
treatment pursuant to MHPA on the
recommendation of a physician who has
examined the minor. The minor's consent is
not necessary.” Act 147: §1.1(b)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
24
Act 147: INPATIENT TREATMENT
Act 147 does not restrict or alter:
a minor’s rights in the Mental Health
Procedures Act (“MHPA”) to consent to
voluntary inpatient treatment at age 14 or
older. Act 147: 1.1(b)(2)
CONTINUED
Copyright©2005 Tsoules, Sweeney & Martin, LLC
25
ACT 147: INPATIENT TREATMENT
Act 147 does not restrict or alter a
P/LG’s right to object to minor’s (14+)
consent to voluntary inpatient treatment
under the MHPA. Act 147:1.1(b)(3)
See 50 P.S. 7204 (Notice to Parent)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
26
ACT 147: INPATIENT TREATMENT
P/LG may not abrogate consent of
minor; minor may not abrogate
consent of P/LG. Act 147: §1.1(b)(4)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
27
ACT 147: INPATIENT TREATMENT
P/LG consent to inpatient treatment may
be revoked; treatment will terminate unless
minor 14 to 18 consents to continued
inpatient treatment. Act 147: §1.1(b)(5)
Why 18? Should be 17?
CONTINUED
Copyright©2005 Tsoules, Sweeney & Martin, LLC
28
ACT 147: INPATIENT TREATMENT
 Minor 14-18 who has consented to inpatient
treatment may revoke his/her consent; minor’s
revocation of consent is effective unless P/LG
of minor has provided for continued treatment.
 Why 18? Should be 17?
 See 35 P.S. §10101: “Any minor who is 18…
may give effective consent…”
Copyright©2005 Tsoules, Sweeney & Martin, LLC
29
ACT 147: INPATIENT TREATMENT
Facility Director shall:
 Provide minor (14-17 years of age) with an
explanation of the nature of the treatment and
minor’s rights;
 File a petition with the Court, if minor objects
to treatment consented to by P/LG.
Act 147: §1.1(b)(7)(8)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
30
Act 147: INPATIENT TREATMENT
Court shall promptly:
•
Appoint attorney for minor.
•
Schedule hearing within 72 hours of the filing of the
petition.
•
Judge or mental health review officer determines
whether voluntary mental health treatment is in the
best interest of the minor.
Act 147: §1.1(b)(8)
CONTINUED
Copyright©2005 Tsoules, Sweeney & Martin, LLC
31
ACT 147: INPATIENT TREATMENT
For patient treatment to continue against minor’s
wishes, the Court must find voluntary inpatient
treatment necessary by clear and convincing
evidence that:
• Diagnosed mental disorder;
• Disorder is treatment in the particular
facility; or
• Least restrictive environment.
Copyright©2005 Tsoules, Sweeney & Martin, LLC
32
ACT 147: INPATIENT TREATMENT
• If Court orders minor to undergo treatment,
minor shall receive services for up to 20 days.
• Minor shall be discharged whenever:
- Attending physician determines that minor is
no longer in need of treatment;
- Consent to treatment has been revoked;
- The end of the time period of the order; or
- Whichever comes first.
Act 147: §1.1(b)(9)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
33
Act 147: INPATIENT TREATMENT
•
Continued Inpatient Treatment
Court conducts a review hearing to determine
whether to:
•
•
•
•
release the minor;
make a subsequent order for inpatient treatment
not to exceed 60 days, subject to discharge
whenever the attending physician determines the
minor is no longer in need of treatment;
consent (parental) is revoked under Paragraph 5; or
Court may order 60-day period of treatment.
Act 147: 1.1 (b)(9)(10)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
34
ACT 147: INPATIENT TREATMENT
Nothing in this subsection shall prevent a nonconsenting parent who has legal custody rights of
a minor child to object to “voluntary” inpatient
services approved by consenting parent by filing a
petition in Court; hearing to be held in 72 hours.
Act 147: §1.1(b)(11)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
35
Act 147: Inpatient Treatment
Issues/Topics
 “Parental/LG Commitment” of minor 14 – 17
years of age
 Physician recommendation required. What
type of physician?
 Right to object process created for “Parental
Commitment Process”
 When is “petition” required to be filed?
Copyright©2005 Tsoules, Sweeney & Martin, LLC
36
Act 147 – Inpatient Treatment
Issues/Topics
• Act 147 Hearings
–
–
–
–
Coordination With Local Court
P/LG legal rights
Utilization Review
Retroactive Audits
Copyright©2005 Tsoules, Sweeney & Martin, LLC
37
ACT 147 – Inpatient Treatment
Issues/Topics
• DPW – Child Welfare System and
Impact of Adolescent Right to
Hearing
Copyright©2005 Tsoules, Sweeney & Martin, LLC
38
Act 147: RELEASE OF RECORDS
§1.2(A) Limited P/LG Rights to Release Minors (14+)
Records
§1.2(B) Limit on P/LG Rights to Release
§1.2(C) P/LG Right to Information to Give Informed
Consent
§1.2(D) Minor Control of Mental Health Treatment
Records
§1.2 (E) Consent to Release Others Than Those Above
Subject to MHPA
Copyright©2005 Tsoules, Sweeney & Martin, LLC
39
ACT 147: RELEASE OF RECORDS
ADOLESCENT RIGHTS
Consent to release of mental health records for
all purposes and in all circumstances other than
those provided for in this section shall be
subject to the provisions of the “Mental Health
Procedures Act,” and other applicable federal
and state statutes and regulations.
Copyright©2005 Tsoules, Sweeney & Martin, LLC
40
ACT 147: RELEASE OF RECORDS
 MHPA:
- Statute: 50 P.S. §7101 et seq.
- Regulations: 55 Pa. Code §5100. 31-39
 Licensing Statutes/Regulations
 HIPAA
 Drug and Alcohol: e.g., dual diagnosis
Copyright©2005 Tsoules, Sweeney & Martin, LLC
41
ACT 147: RELEASE OF RECORDS
ADOLESCENT RIGHTS
Except for the limited rights of a P/LG:
The minor shall control the release of the
minor's mental health treatment records
and information to the extent allowed by
law. Act 147: §1.2(D)
CONTINUED
Copyright©2005 Tsoules, Sweeney & Martin, LLC
42
ACT 147: RELEASE OF RECORDS
ADOLESCENT RIGHTS
Except for the limited rights of P/LG:
When a minor has provided consent to
outpatient mental health treatment, the minor
shall control the records of treatment to the
same extent as the minor would control the
records of inpatient care or involuntary care
under the “Mental Health Procedures Act” and
its regulations. Act 147: §1.2(D)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
43
ACT 147: RELEASE OF RECORDS
• MHPA – See 50 P.S. § 7111. Very strict. All
outpatient minor (14+) mental health treatment
records and information treated as if they are
inpatient;
• Minor’s mental health records and information
are “privileged communication” under § 50 P.S.
§ 7111;
• DPW Regulations: 55 Pa. Code § 5100.31-39.
No release to Courts without consent;
Copyright©2005 Tsoules, Sweeney & Martin, LLC
44
ACT 147: RELEASE OF RECORDS
DPW Regulations Under MHBA:
55 Pa. Code 5100: 31-39
(a)
(b)
(c)
§5100.31
§5100.32
§5100.33
(d)
(e)
(f)
(g)
(h)
(i)
§5100.34
§5100.35
§5100.36
§5100.37
§5100.38
§5100.39
Scope and Policy
Nonconsensual Release of Information
Patient Access to Records and Control Over Release
of Records
Consensual Release to Third Parties
Release to Courts
Departmental Access to Records
Records Relating to Drug and Alcohol Abuse
Child or Patient Abuse
Release of Records
Copyright©2005 Tsoules, Sweeney & Martin, LLC
45
ACT 147: RELEASE OF RECORDS
LIMITED RIGHTS OF P/LG
When a parent or legal guardian (“P/LG”) has
consented to treatment of a minor fourteen years of
age or older under Section 1.1(a)(2) (Outpatient
Treatment) or (b)(1) (Inpatient Treatment), the
following shall apply to the release of the minor's
records and information:
Act 147: § 1.2 (A)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
CONTINUED
46
ACT 147: RELEASE OF RECORDS
LIMITED RIGHTS OF P/LG
“The P/LG may consent to release of the minor's
medical records and information, including
records of prior mental health treatment for which
the P/LG had provided consent, to the minor's
current mental health care treatment provider.”
Act 147: §1.2(A)(1)
CONTINUED
Copyright©2005 Tsoules, Sweeney & Martin, LLC
47
ACT 147: RELEASE OF RECORDS
LIMITED RIGHTS OF P/LG
If deemed pertinent by the minor's current
mental health treatment provider, the release of
information under this subsection may include a
minor's mental health records and information
from prior mental health treatment for which the
minor had provided consent to treatment.
Act 147: §1.2 (A)(2)
CONTINUED
Copyright©2005 Tsoules, Sweeney & Martin, LLC
48
ACT 147: RELEASE OF RECORDS
LIMITED RIGHTS OF P/LG
“The P/LG may consent to the release of the
minor's mental health records and information to
the primary care provider if, in the judgment of
the minor's current mental health treatment
provider, such release would not be detrimental to
the minor.”
Act 147: §1.2(A)(3)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
49
ACT 147: RELEASE OF RECORDS
LIMITED RIGHTS OFP/LG
Release of mental health records and information
under subsection (A) shall be limited to release
directly from one provider of mental health
treatment to another or from the provider of
mental health treatment to the primary care
provider.
Act 147: §1.2(B)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
50
ACT 147: RELEASE OF RECORDS
LIMITED RIGHTS OF P/LG
The P/LG who is providing consent to inpatient and
outpatient mental health treatment of a minor (14+) shall
have the right to:
 information necessary for providing consent;
 symptoms;
 conditions to be treated;
 medications;
 other treatments;
 risks and benefits;
 expected results.
Act 147: §1.2(C)
Copyright©2005 Tsoules, Sweeney & Martin, LLC
51
ACT 147: RELEASE OF RECORDS
• What duty is owed when provider is asked to
“deem pertinent” the release of information?
• What duty is owned when provider is asked to
exercise professional judgment that a release
would not be detrimental to minor?
• Who is the “primary care provider”?
Distinguish “primary care physician” from
“primary care provider.”
Copyright©2005 Tsoules, Sweeney & Martin, LLC
52
ACT 147: RELEASE OF RECORDS
 Provider’s review of Minors Consent Act;
need for policy and procedures.
 Should Providers routinely accept consent
of 14+ for outpatient treatment? Need for
policy and procedures.
 Minors 14+ right to consent to
medications.
Copyright©2005 Tsoules, Sweeney & Martin, LLC
53
ACT 147: RELEASE OF RECORDS
 Consent for inpatient treatment by P/LG; need
for policy and procedures.
 Physician recommendation.
 Release of minor records and MHPA; applicable
to private practice.
 Other laws: HIPAA; DPW.
 Strict limits on P/LG’s right to release records.
Copyright©2005 Tsoules, Sweeney & Martin, LLC
54