Transcript Consent and Confidentiality for Children in New Mexico

What Kids Can Do: What You
Need To Know About the Rights
of Children & Youth
Presented by Grace
Spulak
FosterEd: New Mexico, National
Center for Youth Law
Children Under the Law
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Generally seen as in need of protection
Also disempowered—cannot do many of the
things adults can do
Beginning mid-20th Century understanding of
children as having specific rights
Children Under the Law
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1967 to Present
–
In Re Gault, 387 US 1 (1967)
Juveniles accused of crimes must be
afforded due process under the
constitution
–
Child as person with variable capacity
Children Under the Law
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1967 to Present
–
Gradual expansion of the rights of children &
youth
New Mexico and Federal Law
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Consent to Health Care and Mental Health
Care
Enrolling in School
Emancipation
NM Law Addressing Children’s Ability
to Consent to Medical and Mental
Health Services
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Reproductive Health Care
Mental Health Care
Medically Necessary Care for 14+ Homeless
Youth and Youth Who Are Parents
End of Life Decisions
Consent and Confidentiality
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Consent and confidentiality are distinct legal
concepts.
Multiple laws are relevant to figuring out what care
children can consent to on their own and whether
that care can be confidential.
Who the professional works for impacts whether
health or mental health service is confidential.
Consent
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Understand the medical condition and risks
and benefits of proposed health care
treatment.
Voluntarily decide whether or not to proceed
with a treatment recommendation.
Communicate decision.
Confidentiality
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Right to control access to health care and mental
health care information.
Requirement on health care provider not to release
information about the patient except as allowed by
law.
Complicated concept as applied to children.
Services provided by school district employees to
students require separate analysis.
Reproductive Health Care
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Treatment and testing for sexually
transmitted diseases (NMSA 24-1-9)
Pregnancy Related Treatment (NMSA 24-113.1)
Contraception (NMSA 24-8-5)
Reproductive Health Care
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Young person of any age can consent.
Treatment is confidential EXCEPT parents
may be able to access results of testing for
sexually transmitted diseases upon request
Mental Health Care
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Includes therapy, psychotropic medications,
treatment foster care, and residential
treatment settings.
Mental Health Care: Children
Under 14
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NMSA 32A-6A-14
For children under 14, parents consent to treatment,
except:
– A child under fourteen years of age may consent
to an initial assessment for medically necessary
early intervention service limited to verbal
therapy.
– A clinician has two weeks to conduct this
assessment.
Mental Health Care: Children 14
and Older
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A child fourteen years of age or older can consent to
treatment.
Parents get notice if a child is prescribed
psychotropic medications but child still consents.
If child 14+ lacks capacity, process for parent to act
as surrogate without court order.
--NMSA 32A-6A-15
Mental Health Care: Confidentiality
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Children Under 14: parents control release of
information
Children 14 +: Child controls release of
information EXCEPT parents get notice when
a child is prescribed psychotropic medication
-NMSA 32A-6A-24
Homeless Youth and Youth Who are
Parents
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An unemancipated minor fourteen years of age or
older may give consent for medically necessary
health care if they are:
(1) living apart from the minor's parents or legal
guardian; or
(2) the parent of a child
-NMSA 24-7A-6.2
Capacity
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An individual is presumed to have capacity
under NMSA 1978 §24-7A-11(B).
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Capacity is determined by two physiciansdoesn’t require court determination. NMSA
1978 §24-7A-11(C).
End of Life Decision Making
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A minor may make the decision to withhold
or withdraw life-sustaining treatment for
themselves if they have capacity. NMSA
1978 §24-7A-6.1(C)
Procedure for determining capacity—is done
by physicians and doesn’t require court
determination. NMSA 1978 §24-7A-6.1(D)
Confidentiality
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Right to control access to health care and mental
health care information.
Requirement on health care provider not to release
information about the patient except as allowed by
law.
Complicated concept as applied to children.
Services provided by school district employees to
students require separate analysis.
Health Insurance Portability and
Accountability Act/ HIPAA
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Generally parents have access to child’s
medical records. 45 CFR 164.502(g)
Exceptions:
a. Minor consents to care and consent of parent not
required under state law;
b. Minor obtains care at direction of a court;
c. Parent agrees to confidential relationship;
d. Still have to look to state law –
1. If state permits or denies access state law controls.
2. If state law is silent, provider may
exercise professional judgment
Duty to Report Abuse and Neglect
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Every person, including but not limited to . . . a
schoolteacher or a school official or social worker
acting in an official capacity who knows or has a
reasonable suspicion that a child is an abused or a
neglected child shall report the matter immediately.
NMSA 32A-4-3.
Must “personally” report (meant to address schools
that required report to come through principal).
Enrolling in School
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Enrolling in school generally requires:
– Residency requirements
– Parental permission
– Immunizations
– Transcripts
Enrolling in School
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Unaccompanied youth
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Runaways
Throwaways
Youth living on their own
Can’t enroll in school
Miss days weeks of school
High risk for dropping out
Enrolling in School
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McKinney-Vento Act (42 U.S.C. §11431
Subtitle B Sec. 721 et seq.)
Gives homeless children special rights to
enroll in school
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No parental permission
No immunization records
No transcripts
Enrolling in School
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McKinney-Vento Act
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Child has choice to enroll in
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School of origin or
School where child living now
School has obligation to enroll child immediately
while records are located
School obliged to provide transportation
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Even if transport is between school districts
Enrolling in School
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McKinney-Vento Act
The child can stay in their school of origin
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The entire time they are homeless or
Until the end of the academic year in which
they move to permanent housing
Minor Parents
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Minor parents have rights to make decisions
regarding their children even though they
themselves are not eighteen
Emancipation
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The term emancipation refers to the state of living
independently from one’s parents. A minor can
ask a court to declare that he or she is an
emancipated minor.
Minors inquiring about emancipation must already
be living and functioning as an emancipated
minor before they go into court.
Emancipation
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Statutory Requirements (32A-21-2 et seq):
Emancipation by Declaration of a Court: You
must be –
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16 years or older
Willingly living separate and apart from parents or
guardian
Managing own financial affairs
Emancipation is in their best interests
Effect of Emancipation of a minor:
What changes: An Emancipated Minor May –
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No longer subject to control by their parent or
guardian
No longer entitled to support from their parent or
guard.
Able to enter in enforceable contracts (e.g. lease
an apt.)
What stays the same: An
Emancipated Minor -
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Still needs permission to marry
Is still treated as a juvenile by the courts
Still cannot drink or smoke
Still cannot get a driver’s license any sooner
Is covered by statutory rape laws
Emancipation
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Emancipated Minors are eligible for
the same benefits as unemancipated minors.
Practical Tips
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Be straightforward with children and listen to them;
they have insight into what they need and what will
work for them.
Understand that federal and states laws exist to
protect children and to make sure they have access
to services they need.
Learn about the legal resources available to families.
Contact Information
Grace Spulak
Director, FosterEd New Mexico
National Center for Youth Law
[email protected]
(505) 362-9226