1. 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 tsweeney@tshealthlaw.com www.tshealthlaw.com

2. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 2 AGENDA I.Minors 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

3. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 3 MINORS 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 minors 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.

4. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 4 MINORS 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)

5. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 5 MINORS 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

6. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 6 MINORS CONSENT TO MENTAL HEALTH TREATMENT AFTER ACT 147 AGENDA Consent: Outpatient Treatment Definitions Consent: Inpatient Treatment Release of Records

7. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 7 MINORS 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 Minors Consent Act) Establishes or modifies Statutory Rights for Minors and Parents regarding Mental Health Treatment in Pennsylvania Effective January 22, 2005

8. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 8 MINORS 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 minors parent or legal guardians consent shall not be necessary. Act 147: §1.1(a)(1) CONTINUED

9. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 9 MINORS 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

10. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 10 MINORS 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.

11. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 11 MINORS 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 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

12. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 12 CONFIDENTIALITY – CONTROL OF RECORDS Constitutional Right to Privacy – Pennsylvania In re B 394 A.2d 419 (Pa. 1978) We conclude that in Pennsylvania, an individuals 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 patients right to prevent disclosure of such information is constitutionally based.

13. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 13 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 mothers assertion of her right of privacy.

14. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 14 MINORS 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)

15. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 15 MINORS CONSENT TO MENTAL HEALTH TREATMENT AFTER ACT 147 What is Outpatient Mental Health Treatment?

16. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 16 MINORS 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

17. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 17 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)

18. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 18 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

19. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 19 Act 147: INPATIENT TREATMENT Act 147 does not restrict or alter: a minors or parents rights under the Mental Health Procedures Act (MHPA)

20. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 20 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)

21. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 21 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)

22. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 22 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

23. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 23 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.

24. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 24 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)

25. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 25 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?

26. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 26 ACT 147 – INPATIENT TREATMENT Issues/Topics Act 147 Hearing - P/LG legal rights - Utilization Review - Retroactive Audits

27. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 27 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

28. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 28 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

29. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 29 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)

30. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 30 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)

31. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 31 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)

32. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 32 CONFIDENTIALITY – CONTROL OF RECORDS MENTAL HEALTH PROCEDURES ACT - CONFIDENTIALITY Statute: 50 P.S. § 7111 Regulations: 55 Pa. Code § § 5100.31 – 5100.39

33. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 33 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 childs mental health records. The court held that the child who was over 14 was the only one who could authorize the release.

34. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 34 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) CONTINUED

35. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 35 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

36. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 36 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

37. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 37 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)

38. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 38 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)

39. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 39 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)

40. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 40 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. 4 th 564 (Pa Com. Pl. 2000) Andrews v. Andrews, 601 A.2d 352 (Pa. Super Ct. 1992)

41. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 41 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

42. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 42 SHARED LEGAL CUSTODY Psychological Services after Grossman Other Health Care Services

43. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 43 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)

44. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 44 SHARED LEGAL CUSTODY ACCESS TO RECORDS AFTER ACT 147 Who Controls Records Under 23 Pa. C.S.A. § 5309 and After Act 147?

45. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 45 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)

46. Copyright© 2006 Tsoules, Sweeney & Martin, LLC 46 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)