Navigating Parent Notifications When Minor Consents to Outpatient Behavioral Health Treatment in PA

In Pennsylvania, 2020 Act 65, 35 Pa. Stat. 10101, et seq., governs when minors aged 14-17 may consent to medical treatment, including behavioral health treatment. In the context of consent to behavioral health treatment, Act 65 works in conjunction with (and specifically refers to) the Pennsylvania Mental Health Procedures Act, 50 P.S. §7101, et seq. (the “MHPA”). As a general matter, minor patients 14 and older may consent to their own behavioral health treatment [1]. Importantly, Act 65 makes it clear that a parent or legal guardian [2] may not abrogate the consent of that minor patient. It is also generally understood that absent authorization given by the properly consenting minor patient for disclosure to the parent, the parent does not have a right to receive any treatment records. That is all well and good, but do parents have a right to know that their minor child consented to outpatient behavioral health treatment? After all, we could be talking about a 14-year-old child.

In the context of a minor patient’s consent to inpatient behavioral health treatment, Pennsylvania law and regulations address parental notice and objection rights, but it is not so clear in the outpatient context. Act 65 is silent on the subject, so we turn to the MHPA, which provides the following at Section 7204:

Note that the foregoing has no reference to either inpatient or outpatient treatment, so one may fairly interpret this as applicable to both settings. (However, note also that the corresponding provision in the MHPA’s regulations at 55 Pa. Code 5100.74 is expressly limited to inpatient treatment.) The Pennsylvania Department of Human Services Office of Mental Health and Substance Abuse Services, which released a Bulletin on Act 65 on January 24 of this year, does not subscribe to that interpretation. The Bulletin states on page 2, “When a minor consents to outpatient treatment, a parent or legal guardian cannot be notified of the initiation of treatment unless the minor consents to notification of the parent or legal guardian” [emphasis mine].

Upon the acceptance of an application for examination and treatment by a minor 14 years or over but less than 18 years of age, the director of the facility shall promptly notify the minor’s parents, guardian, or person standing in loco parentis, and shall inform them of the right to be heard upon the filing of an objection. Whenever such objection is filed, a hearing shall be held within 72 hours by a judge or mental health review officer, who shall determine whether or not the voluntary treatment is in the best interest of the minor.

In Pennsylvania, navigating consent to treatment and the disclosure of medical records related to the behavioral health care of a minor requires a detailed knowledge of the application process beyond the laws and regulations discussed in this post. Various statutory and regulatory provisions at the federal and Commonwealth level would be relevant. Seeking appropriate legal advice helps to ensure compliance.

[1] See, Act 65 at Section 10101.1(a)(2); see also,MHPA at Section 7201.

[2] Consider “or legal guardian” added to every reference to “parent” in the remainder of the post.