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Confidentiality and Release of Information for Children in Pennsylvania Samuel Knapp, Ed.D.

Director of Professional Affairs Rachael Baturin, MPH, J.D. Professional Affairs Associate Allan M. Tepper, J.D., Psy.D. PPA Legal Consultation Plan This article reviews the laws governing the release of mental health information for children in Pennsylvania. It is helpful to conceptualize childrens rights to release information in three

categories. First, children control the release of information on the same basis as adults if they are 14 and older and consent to treatment. Second, children and parents divide rights regarding the release of information when the child is 14 and older and the parents consent to treatment for the child. Third, parents control the release of records for children who are under the age of 14. Children 14 or Older Who Consent to Treatment Who gives consent has implications for who controls the release of records. Although children who are 14 or older who consent to treatment legally have the same confidentiality rights as adults, some psychologists see practical problems in giving minors complete control over information generated in treatment. Consequently, some psychologists will only accept the childs consent for treatment if the child agrees to sign a release of information that will allow the psychologist to share information with the parents concerning the billing information, the extent to which the child is using treatment productively, whether the child needs to receive services from a more specialized provider, or under other circumstances. Of course psychologists may share information whenever any patient presents an imminent risk of harm to others. However, some psychologists want a lower threshold for releasing information when treating children. Children 14 or Older Who Do not Consent to Treatment When minors are 14 and older and do not consent to treatment (their parents consent for them), parents may release records to: (a) a current mental health provider or (b) a primary care provider. Primary care providers include general practitioners, family physicians, pediatricians, nurse practitioners who provide primary care, and sometimes specialists who act in the role of a primary care provider. In addition, the parents may request information from the psychologists concerning diagnosis, prognosis, and other information necessary to help the parents make an informed decision concerning the continuation of treatment. Otherwise the minors control the release of information.

Children Under the Age of 14 When children are under the age of 14, parents can decide whether or not the child can receive treatment and also decide about the release of records. The issue of releasing patient information gets complicated, however, if there is a court order of joint legal custody. When the parents are married or if they were never married, and have no court-ordered custody agreement, a commonly held presumption is that either parent may consent for treatment of the minor child. Although this interpretation is not codified by statute or case law, most health care providers assume that the consent of the nonpresenting parent is implied. Similarly, they assume that the ability to consent to treatment implies the ability to consent to the release of records or to have access to records. A prudent course of action is for the psychologist and parents to agree to the standards for records release with both parents at the start of treatment, typically allowing either parent to sign on behalf of both. However, the rules change if there is court ordered joint legal custody where both parents are to have decision making authority in medical, religious, and educational decisions. The Pennsylvania State Board of Psychology has ruled that this should be interpreted as requiring the consent of both parents for a psychological evaluation. Although the State Board of Psychology has not ruled in the issue of joint agreement for therapy, we believe, from a risk management perspective, that it is prudent to assume that the Board would make a similar ruling with regard to consent for treatment for children. Although no rule or standard explicitly addresses the requirements for releasing information once both parents with joint legal custody have agreed to counseling, the most prudent interpretation would be to ask both parents for consent or at the minimum, have parents agree to the procedures for releasing information ahead of time.