Consent and Privacy Issues to Address When Treating Adolescents
Ann Bittinger, Attorney at Law
The Bittinger Law Firm
Editor’s Note: Ann Bittinger, board certified by The Florida Bar in health law, practices in The Bittinger Law Firm in Ponte Vedra Beach and specializes in health law matters. She received her B.A., cum laude, from The American University in Washington, D.C. and her J.D. from The University of Kansas School of Law. Ms. Bittinger is also vice chair of the American Health Lawyers Association’s Physician Organizations Section and is past chair of the Health Law Section of the Jacksonville Bar Association.
Florida law contains a number of rules regarding who can consent to treatment of adolescents. In many cases, teenagers can consent to their own treatment. In those cases, the physician is prohibited by law from telling the minors parents about the treatment.
The starting point in determining who can consent to treatment is to determine if the adolescent is a minor; someone under age 18 who is not yet emancipated. A child under age 18 in Florida is emancipated if determined by court or if he/she is financially independent and maintains a residence away from his/her parents.
Pregnancy and motherhood among adolescents created a number of seemingly inconsistent rules. In Florida, an unmarried pregnant minor may consent to medical and surgical care related to her pregnancy but she cannot consent to medical treatment for herself that is not related to her pregnancy. What constitutes related to pregnancy is not defined by law. Once the minor girl gives birth, she can consent to treatment for her child but not for herself. She is not emancipated under Florida law; nor does the father become emancipated on the basis of fatherhood. If that minor mother marries, however, she has the legal authority to consent to her own medical and surgical treatments, gaining greater legal standing through marriage than by becoming a mother.
There are a number of treatment-specific exceptions in Florida law to the rule that minors cannot consent to medical treatment. The rationale behind allowing minors to get treatment without their parents consent is that minors will not seek treatment in many cases if doing so requires them to disclose their socially-sensitive medical conditions to their parents.
One situation is the treatment of sexually transmissible diseases (STD). A minor may consent to examination and treatment for sexually transmissible diseases without parental consent. In fact, the physician is prohibited from divulging the occurrence of the consultation, examination and treatment.
Although they can get treatment for STDs, they cannot receive maternal health and contraceptive information and services of a non surgical nature unless the minors are married, have become parents, are pregnant or, in the opinion of the physician, would suffer probable health hazards if such services were not provided. Under this law, a sexually active, non-pregnant, unmarried 17-year-old who has no children cannot receive birth control without parental consent unless she would suffer a health hazard resulting from not getting the prescription.
A minor may consent to abortion, but a physician risks professional discipline if he/she performs an abortion on a minor without giving the girls parents or legal guardian notice, in person or by telephone, of the planned abortion 48 hours in advance of performing the procedure. If phone or in-person notice is not possible, a certified letter must be sent. A minor may also consent to substance abuse treatment
without parental consent. Even when a parent consents to a minors substance abuse treatment, the physician cannot release health information to the parent without the minors consent.
Finally, a child 13 years old or older can receive mental health diagnostic and evaluative services or individual psychotherapy, group therapy, counseling or other forms of verbal therapy from a licensed mental health professional without parental consent.
Reading Florida law and the federal Privacy Standards promulgated under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the general rule is that if the minor had the legal standing to consent to treatment, then the physician is prohibited from disclosing health information about the treatment to the parent. In the converse, if the parent had standing to consent, then generally the parent has the right to receive and decide whether a physician may use or disclose health information on behalf of the minor.
Issues of consent and release of health information are complicated matters. Physicians may want to consult a board certified health law attorney to prepare policies and procedures addressing these laws that are tailored to individual physicians practices.