Minors 

Generally, a parent of a minor client can sign the informed consent. Thriveworks also prefers to have adolescents between the ages of 14 and 17 to sign a consent as well in some instances, but is not necessarily a legal or contractual requirement. Of course, we all know caretakers of minors can look differently in different situations. Here's a breakdown of the situations you might see and the required documentation, if any, you should ask for:

• Married Parents: If your minor client's parents are currently married, then either parent may sign the informed consent. 

• Separated Parents: If the parents are separated, but not yet legally divorced, and there is no custody agreement, then they are still treated as married parents.

• Divorced Parents: If the parents are divorces, you must request a copy of the most recent custody agreement. 

• Unmarried Parents: This of course can be a bit more tricky. Request a custody agreement, but if there is none, then attempt to obtain written consent from both parents. If you are told one parent is not in the picture at all, then you can cautiously accept the one parent's consent, making note in the record that they have provided you such information, and that you informed them the other parent may have rights if they do decide they want to be involved.

• Legal Guardians: If your minor client has a legal guardian, then merely request the legal documentation that awards the person the guardianship.

• Guardian Ad Litem (GAL): It is rare a GAL will have to provide a signature for informed consent of a minor, but they may have rights to the minor's medical record, or to speak to you as the minor's treating therapist. GALs will have a court document appointing them as GAL and providing them with specific rights. Just review to ensure they have the right to what it is they are asking for, and if you cannot determine, request review by your RCD, who will bring in Legal if needed.

If the person bringing in the minor client for treatment does not fall into any of the categories above, unfortunately, they do not have the legal right to consent to treatment of the minor, and they should provide you with who does to sign. A release of protected health information (ROI) can be signed by the minor's parent/guardian so that you may include this third party if needed.

If your client's parent or guardian provided you with the most recent custody agreement, you must take a look at it to determine who has a right to consent to treatment and who has a right to the record. Make sure to put a copy of the agreement in the client's record as well. We will give you a quick overview of what to look for within the agreement.

There are two different types of custody that are determined by the agreement: physical and legal. We do not care about physical custody for these purposes, only legal. Legal custody is the division of responsibilities to make decisions regarding things like medical care, religion, education, etc. 

Generally, you are likely to see joint legal custody. This means we would prefer to get written consent to treat from both parents if at all possible. This also means that both parents would have a right to speak to you or to request a copy of the medical record. You should get written permission (the release of protected health information form (ROI) discussed below) to release the record to anyone. There are some exceptions, and if you face a difficult situation, bring it up to your RCD who will bring the issue to Legal if needed.

Sometimes you might see that one person is named as having full legal custody. This means you only need that person's written authorization. However, there may be language in there that says one person has sole decision-making rights, but the other person has a right of access to the record. Again, if you are not sure, bring the issue to your RCD, who will bring it to legal if needed.

Typical lawyer answer - it depends! It depends on who is requesting the medical record or requesting to speak to you regarding the minor. 

• Request from the minor: If the minor requests their own record, you should get a release of protected health information (ROI) from the minor and the parent/guardian.

• Request from the "named" parent/guardian: Likely, it is okay to release, but it is still Thriveworks' policy to have an ROI on the record. Make sure you have a copy of the most recent custody agreement on file to review first. You also may want to consider releasing to both parents/guardians or at least informing the other parent/guardian of the request, this of course will be determined on a case-by-case basis, so if you are not sure, reach out to your RCD.

• Request from the "other" parent/guardian: Make sure you have the most recent custody agreement on file to ensure this person has a right to the record. It is recommended that you inform both parents of the request and explain what you can release. You will also want an ROI from both parents/guardians on file for the request.

• Request via a subpoena duces tecum: As explained here, this is a subpoena for records. As with any other subpoena of this type, written authorization (an ROI) is needed to comply. You must reference the most recent custody agreement to determine who has the authority to sign.

• Request via a subpoena to testify/be deposed: As explained here, follow the process, and the same requirements for authorization are required. Note: To comply with ethical and competency rules, as the treating therapist, you are not able to provide a recommendation for custody, visitation, or residence of a minor. Forensic evaluators, described below, are hired to provide a recommendation of this to the court by gathering information from all possible sources: medical professionals, teachers, friends, family, direct observations, etc. As treating therapist, you only have one point of view, which is not enough to make such a recommendation. You may state the client has told you one thing or another, but you cannot provide your opinion on these matters. 

• Request from a parent/guardian attorney: You would still need an ROI filled out by one or both of the parents/guardians to speak with an attorney. If an attorney does reach out to you, we recommend you not speak to them, and let your RCD know who will inform the Legal team. We prefer if we speak to any attorneys on your behalf. If you do speak to an attorney with an ROI in place, make sure they know you cannot provide any recommendations for custody, visitation, or residence of the minor. You can only speak to what is in the record and your treatment of the minor.

• Request from a GAL or forensic evaluator: If a request comes from a GAL or a forensic evaluator, request a copy of the court order appointing them that allows you to speak to them. Court orders are an exception to the HIPAA confidentiality rules. A copy should be put in the client's record, and it would also be wise to inform the client and/or the client's parent/ guardian of the request received. 

• Request from another medical professional: As with any other request, an ROI from the proper parties is required. It would be beneficial to obtain reciprocal releases if the case calls for it.

You may need to explain to your minor client that they, under the eyes of the law, do not have a say in whether their record gets released or who has the ability to discuss their treatment with you. You should explain the importance of the client-therapist relationship to the parent/guardian prior to intake to ensure the levels of confidentiality is clear.

If you have any questions, bring them to your RCD, who will bring in Legal as necessary.

As provided in the section above, if a GAL or a forensic evaluator reach out to speak to you about your minor client, request a copy of the court order appointing them if they have not already provided you one. Put a copy in the record. You should inform the client's parent/guardian of the request you have received. Generally, GALs or forensic evaluators will only ask about the work you are doing with the minor client, but you want to make sure to focus on the work you are doing with the client, what it says in the record, and what you directly observed.

• GALs are the legal representation of the minor appointed by the court. A GAL may want to speak with you to find out what the minor is speaking to you about, their diagnosis, etc., to better represent the minor.

• Forensic evaluators are sometimes appointed by the court, but more often are hired by one or more of the parties to a custody litigation case. The forensic evaluator is usually a mental health professional and sometimes an attorney, who is an impartial third party with no previous connection to the family in question. They conduct interviews and observations to then make several custody recommendations to the court. You may be one of the people they speak to when working on a recommendation. 

Unfortunately, even if it is detrimental to the minor, if one parent wants to cease therapy, therapy must stop. You can inform both parents/guardians that you will put sessions on pause until such time as they come to an agreement and both approve of you seeing the minor. You can provide referrals to other clinicians that may be able to assist them.