You can't legally share some info on children
Certain exceptions may apply: treatment of STIs, reproductive health, mental health, and substance abuse
Adolescents often seek care for various conditions in which obtaining informed consent from a parent or legal guardian might be "awkward, inconvenient, detrimental, or even impossible," says William M. McDonnell, MD, JD, associate professor of pediatrics in the Division of Pediatric Emergency Medicine at University of Utah in Salt Lake City and adjunct professor of law at the university's S.J. Quinney College of Law.
Parents who provide consent for care of their children are entitled to full disclosure about the child's medical care, and adolescent minors lack the legal ability possessed by adult patients to provide informed consent, says McDonnell. However, specific areas may be legally "carved out" from the general rule of parental consent and parental disclosure, he explains, and physicians generally are not permitted to disclose information to parents in those areas.
"Although these rules are determined by state law, and therefore vary from state to state, there are some common patterns," he says. To encourage adolescents to seek treatment for certain conditions, states may "carve out" the need for parental consent prior to treatment of sexually transmitted infections (STIs), reproductive health, mental health, and substance abuse, he explains.
"Nevertheless, the ability of adolescents to consent for such care does not always prohibit disclosure to the parents," says McDonnell. Some state-specific rules direct that physicians must breach confidentiality in certain circumstances, such as when necessary to protect the life or safety of third parties, he says.
Balancing act needed
State law might allow adolescents to provide informed consent for reproductive health, mental health, or substance abuse, but that same state also might have a law compelling disclosure to parents — most commonly for abortion or contraception.
"These are probably the trickiest cases in which to balance informed consent and confidentiality rules," says McDonnell, adding that physicians can best reduce their liability risks by knowing the following:
- their state laws regarding the legal age of majority;
- the specific areas of care for which adolescent minors can consent;
- any state rules for mandatory disclosure to parents of adolescent health care. (See related story on mandatory reporting requirements, below..)
"They should also know when and to whom they must report suspicions of child abuse and promptly follow through on such reporting," he says.
When classified as emancipated, minors are adults according to laws relating to confidentiality and consent, adds McDonnell. "The emancipated minor's parents have no legal control over the adolescent's healthcare and no right to his health information," he says.
Source
For more information on confidentiality of care given to adolescent patients, contact:
- William M. McDonnell, MD, JD, Associate Professor of Pediatrics, Division of Pediatric Emergency Medicine, University of Utah, Salt Lake City. Phone: (801) 587-7450. Fax: (801) 587-7455. Email: [email protected].
Know legal rules for mandatory reporting Warning! Physicians might face criminal charges When it comes to disclosure of medical information about an adolescent to law enforcement or other third parties, as opposed to parents, "an entirely different set of legal rules apply," says William M. McDonnell, MD, JD, associate professor of pediatrics in the Division of Pediatric Emergency Medicine at University of Utah in Salt Lake City. The federal Health Insurance Portability and Accessibility Act (HIPAA) and state confidentiality laws generally do not prohibit the disclosure of minors' health information to parents, but they do protect their health information from disclosure to other people, he explains. However, specific mandatory reporting laws overrule HIPAA and other confidentiality laws, such as the mandatory reporting requirements related to child abuse and neglect adopted by all states, adds McDonnell. When a physician has a reasonable suspicion of child abuse or neglect, this information must be provided to law enforcement or child protective services, regardless of other confidentiality concerns, he explains. "Consensual sexual activity between unmarried adolescents and noncustodial adults may present physicians with troubling confidentiality and reporting issues," says McDonnell. While all states have criminalized such activity via statutory rape laws, there is wide variety among states regarding whether physician reporting of such activity is mandatory or even permissible, he says. "Because of the complexities of state-specific laws in this area, physicians who treat adolescent patients should familiarize themselves with child protection laws in their state related to adolescent-adult sexual behavior," he says. Successful lawsuits? Minors who are specifically permitted by state law to provide consent and receive confidentiality protection in the "carve-out" areas might be successful in suing physicians for breaches of confidentiality, says McDonnell. However, McDonnell says that when physicians are specifically directed by state law to disclose to law enforcement or parents, the physicians are protected from liability. "The law starts with the presumption that adolescents cannot provide informed consent and that parents are entitled to full disclosure," says McDonnell. Unless it fits into one of the "carve-out" exceptions, or unless related to a medical emergency, care provided without disclosure and consent from the parents might violate informed consent rules, which might support a legal claim against the physician, he explains. "The state can bring criminal — usually misdemeanor — charges against the physician who fails to report to law enforcement authorities when he or she is aware of child abuse," adds McDonnell. |
Certain exceptions may apply: treatment of STIs, reproductive health, mental health, and substance abuse
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content