March 16, 2005 Thomas E. Sweeney, Esquire

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 Telephone: (610) Fax: (610) tshealthlaw.com

Copyright©2005 Tsoules, Sweeney & Martin, LLC
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

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 TES.doc Copyright©2005 Tsoules, Sweeney & Martin, LLC

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

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

Act 147: Definitions “Facility” means any mental health establish-ment, 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

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

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

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

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

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

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

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

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

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

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

SHARED LEGAL CUSTODY In re Welsey, J.K. (1982): Guidelines for shared custody include: both parents are “fit”; both desire continuing involvement; both parents are seen by the child as sources of security and love; and both parents are able to communicate and cooperate in promoting the child’s bests interests. Copyright©2005 Tsoules, Sweeney & Martin, LLC

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

ACT 147 – SHARED LEGAL CUSTODY- STATE BOARD OF PSYCHOLOGY
Custody Evaluations: - APA Guidelines - State Board Disciplinary Actions Both Parents’ Consent Expected Copyright©2005 Tsoules, Sweeney & Martin, LLC

ACT 147 – SHARED LEGAL CUSTODY- STATE BOARD OF PSYCHOLOGY
Psychological Evaluations: - Act 147 permits Adolescents to consent - Gray Area: Both Parents’ consent • Children 1-13 • Adolescent refuses to consent Screen Before Treatment for Joint Legal Custody Copyright©2005 Tsoules, Sweeney & Martin, LLC

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

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

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

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 (Notice to Parent) Copyright©2005 Tsoules, Sweeney & Martin, LLC

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

Minor 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

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

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

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

• 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

• 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

Nothing in this subsection shall prevent a non- consenting 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

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

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

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

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

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

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

MHPA – See 50 P.S. § 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 § No release to Courts without consent; Copyright©2005 Tsoules, Sweeney & Martin, LLC

DPW Regulations Under MHBA: 55 Pa. Code 5100: 31-39 § 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

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) CONTINUED Copyright©2005 Tsoules, Sweeney & Martin, LLC

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

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

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

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

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

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

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

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

March 16, 2005 Thomas E. Sweeney, Esquire

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