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PENNSYLVANIA BAR INSTITUTE ACT 147: CONSENT TO MENTAL HEALTH TREATMENT; RELEASE OF RECORDS March 16, 2005 Thomas E. Sweeney, Esquire Tsoules, Sweeney &

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Presentation on theme: "PENNSYLVANIA BAR INSTITUTE ACT 147: CONSENT TO MENTAL HEALTH TREATMENT; RELEASE OF RECORDS March 16, 2005 Thomas E. Sweeney, Esquire Tsoules, Sweeney &"— Presentation transcript:

1 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

2 Copyright©2005 Tsoules, Sweeney & Martin, LLC 2 Act 147 Amends current Pennsylvania Statute Governing Minors Rights to Consent To Medical, Dental and Health Services (35 P.S. §10101 et seq.) (the Minors Consent Act) Establishes or modifies Statutory Rights for Minors and Parents regarding Mental Health Treatment in Pennsylvania Effective January 22, 2005

3 Copyright©2005 Tsoules, Sweeney & Martin, LLC 3 ACT 147 Agenda Minors Consent Act Definitions Consent: Outpatient Treatment Consent: Inpatient Treatment Release of Records

4 Copyright©2005 Tsoules, Sweeney & Martin, LLC 4 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

5 Copyright©2005 Tsoules, Sweeney & Martin, LLC 5 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.

6 Copyright©2005 Tsoules, Sweeney & Martin, LLC 6 MINORS CONSENT ACT Consent for Children with Minor Parents Pregnancy, Veneral Disease and Other Reportable Diseases When Consent Unnecessary Liability for Rendering Services

7 Copyright©2005 Tsoules, Sweeney & Martin, LLC 7 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

8 Copyright©2005 Tsoules, Sweeney & Martin, LLC 8 Act 147 Mental Health Treatment means a course of treatment, including evaluation, diagnosis, therapy and rehabilitation designed and administered to alleviate an individuals 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

9 Copyright©2005 Tsoules, Sweeney & Martin, LLC 9 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)

10 Copyright©2005 Tsoules, Sweeney & Martin, LLC 10 Act 147 Issues/Topics What is Outpatient Mental Health Treatment? What is Inpatient Mental Health Treatment?

11 Copyright©2005 Tsoules, Sweeney & Martin, LLC 11 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 minors parent or legal guardians consent shall not be necessary. Act 147: §1.1(a)(1) CONTINUED

12 Copyright©2005 Tsoules, Sweeney & Martin, LLC 12 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

13 Copyright©2005 Tsoules, Sweeney & Martin, LLC 13 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.

14 Copyright©2005 Tsoules, Sweeney & Martin, LLC 14 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 Grossman Case

15 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) 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.

16 Copyright©2005 Tsoules, Sweeney & Martin, LLC 16 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.

17 Copyright©2005 Tsoules, Sweeney & Martin, LLC 17 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.

18 Copyright©2005 Tsoules, Sweeney & Martin, LLC 18 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 childs life.

19 Copyright©2005 Tsoules, Sweeney & Martin, LLC 19 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 childs bests interests.

20 Copyright©2005 Tsoules, Sweeney & Martin, LLC 20 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. 4 th 564 (Pa. Com. Pl., 2000)

21 Copyright©2005 Tsoules, Sweeney & Martin, LLC 21 ACT 147 – SHARED LEGAL CUSTODY- STATE BOARD OF PSYCHOLOGY Custody Evaluations: -APA Guidelines -State Board Disciplinary Actions Both Parents Consent Expected

22 Copyright©2005 Tsoules, Sweeney & Martin, LLC 22 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

23 Copyright©2005 Tsoules, Sweeney & Martin, LLC 23 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.

24 Copyright©2005 Tsoules, Sweeney & Martin, LLC 24 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)

25 Copyright©2005 Tsoules, Sweeney & Martin, LLC 25 Act 147: INPATIENT TREATMENT Act 147 does not restrict or alter: a minors 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

26 Copyright©2005 Tsoules, Sweeney & Martin, LLC 26 ACT 147: INPATIENT TREATMENT Act 147 does not restrict or alter a P/LGs right to object to minors (14+) consent to voluntary inpatient treatment under the MHPA. Act 147:1.1(b)(3) See 50 P.S (Notice to Parent)

27 Copyright©2005 Tsoules, Sweeney & Martin, LLC 27 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)

28 Copyright©2005 Tsoules, Sweeney & Martin, LLC 28 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

29 Copyright©2005 Tsoules, Sweeney & Martin, LLC 29 ACT 147: INPATIENT TREATMENT Minor who has consented to inpatient treatment may revoke his/her consent; minors 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…

30 Copyright©2005 Tsoules, Sweeney & Martin, LLC 30 ACT 147: INPATIENT TREATMENT Facility Director shall: Provide minor (14-17 years of age) with an explanation of the nature of the treatment and minors rights; File a petition with the Court, if minor objects to treatment consented to by P/LG. Act 147: §1.1(b)(7)(8)

31 Copyright©2005 Tsoules, Sweeney & Martin, LLC 31 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

32 Copyright©2005 Tsoules, Sweeney & Martin, LLC 32 ACT 147: INPATIENT TREATMENT For patient treatment to continue against minors 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.

33 Copyright©2005 Tsoules, Sweeney & Martin, LLC 33 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)

34 Copyright©2005 Tsoules, Sweeney & Martin, LLC 34 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)

35 Copyright©2005 Tsoules, Sweeney & Martin, LLC 35 ACT 147: INPATIENT TREATMENT 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)

36 Copyright©2005 Tsoules, Sweeney & Martin, LLC 36 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?

37 Copyright©2005 Tsoules, Sweeney & Martin, LLC 37 Act 147 – Inpatient Treatment Issues/Topics Act 147 Hearings – Coordination With Local Court – P/LG legal rights – Utilization Review – Retroactive Audits

38 Copyright©2005 Tsoules, Sweeney & Martin, LLC 38 ACT 147 – Inpatient Treatment Issues/Topics DPW – Child Welfare System and Impact of Adolescent Right to Hearing

39 Copyright©2005 Tsoules, Sweeney & Martin, LLC 39 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

40 Copyright©2005 Tsoules, Sweeney & Martin, LLC 40 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.

41 Copyright©2005 Tsoules, Sweeney & Martin, LLC 41 ACT 147: RELEASE OF RECORDS MHPA: -Statute: 50 P.S. §7101 et seq. -Regulations: 55 Pa. Code § Licensing Statutes/Regulations HIPAA Drug and Alcohol: e.g., dual diagnosis

42 Copyright©2005 Tsoules, Sweeney & Martin, LLC 42 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

43 Copyright©2005 Tsoules, Sweeney & Martin, LLC 43 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)

44 Copyright©2005 Tsoules, Sweeney & Martin, LLC 44 ACT 147: RELEASE OF RECORDS MHPA – See 50 P.S. § Very strict. All outpatient minor (14+) mental health treatment records and information treated as if they are inpatient; Minors mental health records and information are privileged communication under § 50 P.S. § 7111; DPW Regulations: 55 Pa. Code § No release to Courts without consent;

45 Copyright©2005 Tsoules, Sweeney & Martin, LLC 45 ACT 147: RELEASE OF RECORDS DPW Regulations Under MHBA: 55 Pa. Code 5100: (a)§ Scope and Policy (b)§ Nonconsensual Release of Information (c)§ Patient Access to Records and Control Over Release of Records (d)§ Consensual Release to Third Parties (e)§ Release to Courts (f)§ Departmental Access to Records (g)§ Records Relating to Drug and Alcohol Abuse (h)§ Child or Patient Abuse (i)§ Release of Records

46 Copyright©2005 Tsoules, Sweeney & Martin, LLC 46 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) CONTINUED

47 Copyright©2005 Tsoules, Sweeney & Martin, LLC 47 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

48 Copyright©2005 Tsoules, Sweeney & Martin, LLC 48 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

49 Copyright©2005 Tsoules, Sweeney & Martin, LLC 49 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)

50 Copyright©2005 Tsoules, Sweeney & Martin, LLC 50 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)

51 Copyright©2005 Tsoules, Sweeney & Martin, LLC 51 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)

52 Copyright©2005 Tsoules, Sweeney & Martin, LLC 52 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.

53 Copyright©2005 Tsoules, Sweeney & Martin, LLC 53 ACT 147: RELEASE OF RECORDS Providers 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.

54 Copyright©2005 Tsoules, Sweeney & Martin, LLC 54 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/LGs right to release records.


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