Transcript ACT 147 - Rhoads & Sinon: Harrisburg Law Firm

FAMILY LAW INSTITUTE
AGE OF CONSENT FOR MENTAL HEALTH
TREATMENT; RELEASE OF RECORDS
April 5, 2006
Thomas E. Sweeney, Esquire
Tsoules, Sweeney & Martin, LLC
29 Dowlin Forge Road
Exton, PA 19341
Tel: 610-423-4200
Fax:: 610-423-4201
[email protected]
www.tshealthlaw.com
AGENDA
I.
Minor’s Consent to MH Treatment – Act 147
II.
Confidentiality: Control of Mental Health
Treatment Records After Act 147
III.
Special Issues

Shared Legal Custody

Parental Access to Records
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MINOR’S CONSENT TO MEDICAL, DENTAL
AND HEALTH SERVICES
Commonwealth v. Nixon, (563 Pa. 425, 761 A.2d 1151 Pa. 2000).
Concurring opinion of Supreme Court Justice Cappy: “Under common
law, a minor is deemed incompetent to provide informed
consent…Until the age of majority, a minor’s parents make medical
treatment decisions on his or her behalf.”
“The Pennsylvania legislature, however, has rendered the authority of
parents to speak for their minor child with respect to health care less
than absolute in certain circumstances, by enacting several statutes
that allow minors to speak for themselves.”
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MINOR’S CONSENT TO MEDICAL, DENTAL AND
 Individual Consent (35 P.S. 10101)
 Consent for Children with Minor Parents (35 P.S. 10102)
 Pregnancy, Venereal Disease and Other Reportable
Diseases (35 P.S. 10103)
 When Consent Unnecessary (35 P.S. 10104)
 Liability for Rendering Services (35 P.S. 10105)
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MINOR’S CONSENT TO MEDICAL, DENTAL AND
HEALTH SERVICES
35 P.S. 10101
 Emancipation
 Substance Abuse Services
71 P.S. § 1690.112
 Abortion Control Act: 18 Pa. C.S.A. § 3201 et. seq
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MINOR’S CONSENT TO MENTAL HEALTH
TREATMENT AFTER ACT 147
AGENDA
 Consent: Outpatient Treatment
 Definitions
 Consent: Inpatient Treatment
 Release of Records
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MINOR’S CONSENT TO MENTAL HEALTH
TREATMENT AFTER 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
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MINOR’S CONSENT TO MENTAL HEALTH
TREATMENT AFTER 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
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MINOR’S CONSENT TO MENTAL HEALTH
TREATMENT AFTER 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
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MINOR’S CONSENT TO MENTAL HEALTH
TREATMENT AFTER ACT 147
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.
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MINOR’S CONSENT TO MENTAL HEALTH
TREATMENT AFTER ACT 147
Definitions
“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
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CONFIDENTIALITY – CONTROL OF RECORDS
Constitutional Right to Privacy – Pennsylvania
In re “B” 394 A.2d 419 (Pa. 1978)
“We conclude that in Pennsylvania, an individual’s
interest in preventing the disclosure of information
revealed in the context of a psychotherapist-patient
relationship has deeper roots than the doctor-patient
privilege statute, and that the patient’s right to prevent
disclosure of such information is constitutionally
based.”
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CONFIDENTIALITY – CONTROL OF
RECORDS
Constitutional Right to Privacy – Pennsylvania
In the Matter of T.R., 731 A.2d 1276 (Pa. 1999)
“In holding that the mother should be compelled to
undergo a psychiatric examination the results of which are to be
released to the parties, Superior Court not only ignored the holding
in re “B”, which we find indistinguishable from the present case,
but also elevated the interests of the state beyond all reasonable
limits. We conclude, as we did in re “B”, that there is no
governmental interest sufficient to negate the mother’s assertion of
her right of privacy.”
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MINOR’S CONSENT TO MENTAL HEALTH
TREATMENT AFTER ACT 147
Definitions
“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)
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MINOR’S CONSENT TO MENTAL HEALTH
TREATMENT AFTER ACT 147
 What is “Outpatient Mental Health Treatment”?
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MINOR’S CONSENT TO MENTAL HEALTH
TREATMENT AFTER ACT 147
Outpatient Treatment
Issues/Topics
 Separate but Equal Consent
 Medications
 Non-MHT Services – P/LG Consent
 “In Loco Parentis”
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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)
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ACT 147: INPATIENT TREATMENT
What Has Changed?
 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.
 MHPA: 50 P.S. § 7201
– Parent, guardian, or person in loco parentis for child
less than 14…deemed acting for child.
– 14 year old may consent to voluntary IPT
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Act 147: INPATIENT TREATMENT
Act 147 does not restrict or alter:
a minor’s or parent’s rights under the Mental
Health Procedures Act (“MHPA”)
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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)
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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)
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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
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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.
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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)
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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?
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ACT 147 – INPATIENT TREATMENT
Issues/Topics
• Act 147 Hearing
- P/LG legal rights
- Utilization Review
- Retroactive Audits
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CONFIDENTIALITY – CONTROL OF RECORDS
AGENDA
 Act 147 (35 P.S. § 10101.2)
 Shared Legal Custody
 Testimonial Privileges
 Parental Access to Records
§ 5309 vs. Act 147
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CONFIDENTIALITY – CONTROL OF RECORDS
IMPACT OF ACT 147 (Exhibit C)
§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 (14+) Control of Mental Health Treatment
Records
§1.2 (E) Consent to Release Other Than Those Above
Subject to MHPA
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CONFIDENTIALITY – CONTROL OF RECORDS
ACT 147: 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.
Act 147: 1.2(E)
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CONFIDENTIALITY CONTROL OF RECORDS
ACT 147: RELEASE OF RECORDS
Except to the extent set forth in subsection 1.2(A),
(B) or (C), 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)
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CONFIDENTIALITY CONTROL OF RECORDS
ACT 147: RELEASE OF RECORDS
When a minor has provided consent to outpatient mental
health treatment under Section 1.1(a)(1), subject to
subsection 1.2(A)(2) (records related to prior treatment
consented to by minor), the minor shall control the
records of treatment to the same extent as the minor
would control the records of inpatient care or involuntary
outpatient care under the “Mental Health Procedures
Act” and its regulations.
Act 147: 1.2(D)
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CONFIDENTIALITY – CONTROL OF RECORDS
MENTAL HEALTH PROCEDURES ACT CONFIDENTIALITY
 Statute: 50 P.S. § 7111
 Regulations: 55 Pa. Code § § 5100.31 – 5100.39
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CONFIDENTIALITY – CONTROL OF RECORDS
INPATIENT PSYCHIATRIC SERVICES
Who has the Right to Release? Any competent individual over the
age of 14 may authorize the release of his or her inpatient (i.e.,
residential) mental health records.
In Christy v. Wordsworth-At-Shawnee, 749 A.2d 557 (Pa. Commw.
Ct. 2000), a mental health patient brought suit against a treatment
provider, fellow patient and others to recover for a sexual assault
by a fellow patient. The parents authorized release of their child’s
mental health records. The court held that the child who was over
14 was the only one who could authorize the release.
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CONFIDENTIALITY CONTROL OF RECORDS
ACT 147: 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)
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CONTINUED
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CONFIDENTIALITY CONTROL OF RECORDS
ACT 147: 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
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CONFIDENTIALITY CONTROL OF RECORDS
ACT 147: 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
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CONFIDENTIALITY CONTROL OF RECORDS
ACT 147: 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)
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CONFIDENTIALITY CONTROL OF RECORDS
ACT 147: 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)
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CONFIDENTIALITY CONTROL OF RECORDS
ACT 147: 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)
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SHARED LEGAL CUSTODY
 In re Wesley J.K., 445 A.2d 1243 (Pa. Super. Ct. 1982)
 Hill v. Hill, 761 A.2d 1242 (Pa. Super. Ct. 2000)
 Senatore v. Senatore, 58 Pa. D. & C. 4th 564 (Pa Com. Pl.
2000)
 Andrews v. Andrews, 601 A.2d 352 (Pa. Super Ct. 1992)
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SHARED LEGAL CUSTODY
Grossman v. State Bd. of Psychology, 825 A.2d
748 (Pa. Commw. Ct. 2003)




Facts
State Board of Psychology Decision
Commonwealth Court Decision
Supreme Court
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SHARED LEGAL CUSTODY
 Psychological Services after Grossman
 Other Health Care Services
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SHARED LEGAL CUSTODY
Access to Records and Information:
In view of the public policy that each parent shares
in the rights and responsibilities of the rearing “…each
parent shall be provided access to all the medical,
dental, religious or school records of the child, the
residence address of the child and of the other parent
and any other information that the Court deems
necessary.” (23 Pa. C.S.A. § 5309)
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SHARED LEGAL CUSTODY
ACCESS TO RECORDS AFTER ACT 147
Who Controls Records Under
23 Pa. C.S.A. § 5309 and
After Act 147?
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CONFIDENTIALITY – CONTROL OF
RECORDS
TESTIMONIAL PRIVILEGES – FEDERAL LAW
“The federal privilege, which clearly applies to
psychiatrists and psychologists, also extends to
confidential communication made to licensed social
workers in the course of psychotherapy.”
United States Supreme Court
Jaffe v. Redmond
518 U.S. 1 (1996)
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CONFIDENTIALITY – CONTROL OF RECORDS
TESTIMONIAL PRIVILEGES – PENNSYLVANIA
 Physician-Patient – (42 Pa. C.S. §5944)
 Psychiatrist/Psychologist – (42 Pa. C.S. §5944)
 School Personnel – (42 Pa. C.S. §5945)
 Sexual Assault Counselors – (42 Pa. C.S. §5945.1)
 Spousal Communications to a Qualified Professional –
(42 Pa. C.S. §5948)
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