Minors and Healthcare: Consent, Privacy and More

Minors and Healthcare: Consent, Privacy and More Paul A. Selner Attorney-Advisor Brooke Army Medical Center Office of the Center Judge Advocate

Minors & HealthcareDiscussion Topics • Consent • Informed Consent • Ability to Consent based on Status • Ability to Consent based on Services Sought • Privacy / Confidentiality • Privacy Act & HIPAA • Impact of State Law • More? • More pressing and frequent = issues with incompetent patients who aren’t minors Minors & Healthcare - Selner

Consent • Informed Consent includes: • Nature of the illness • Consequences of not treating • Consequences of treating • Pros and cons of the form of treatment • Alternatives to treatment • The Problem • The law presumes minors to be incompetent to contract, including obtaining medical care Minors & Healthcare - Selner

The Legal Framework • Federal law • Statutes? • Regulations (DoD/TRICARE and Army) • Court decisions • Largely controlled by State law • Statutes • Court decisions • ***Law School Moment*** • Federal law trumps State law • State law controls where Federal law is silent • If Federal law permissive and State law mandatory, follow the more restrictive Minors & Healthcare - Selner

Army Regulations - Consent • AR 40-3, Glossary, Section II – Terms • Incapable patient • A minor … Some exceptions have been created for “mature” minors between the ages of 14 and 17 years … However, a minor below 14 years old will be considered to lack capacity for health care decisions, unless specifically so provided by applicable State law… • Patient with decisionmaking capacity • An …emancipated minor as determined by State law who has the ability to communicate and understand information and the ability to reason and deliberate sufficiently well about the choices involved. Some exceptions have been created for “mature” minors in recognition that children sometimes have adequate capacity to make decisions. However, a minor below 14 years old will be considered not to have capacity for health care decisions, unless specifically so provided by applicable State law. Emancipated minors include 17 year old service members. Minors & Healthcare - Selner

Army Regulations - Consent • AR 40-400, para 2-12c. • (1) Implied consent. Implied consent may be inferred from actions of the patient, or other circumstances, even though specific words of consent are not used. … If the patient is a minor incapable of giving consent, implied consent of the parent or guardian may be found in actions of the parent or guardian requesting or not objecting to medical care for the minor. Moreover, consent to treatment is implied in certain emergency situations when patients are incapable of giving or denying consent and their condition represents a serious or imminent threat to life, health, or well-being. Minors & Healthcare - Selner

Army Regulations - Consent • AR 40-400, para 2-12. • g. Nonmilitary minors. The sufficiency of consent by a nonmilitary minor … will be determined under the same criteria as provided in f above [capable of giving informed consent under State law]. Most States have laws concerning consent by minors. Many States allow the treatment of venereal disease and certain other conditions with the consent of the minor alone, without parental knowledge or consent. If no law exists on the subject or if the law does not specifically prohibit consent by a minor, the maturity of the minor should dictate whether he or she may give a legally sufficient consent. The health care provider/practitioner obtaining the consent will determine the maturity of the minor. The minor’s age, level of intelligence, and the minor’s understanding of the complications and seriousness of the proposed treatment are all factors to consider when determining the maturity of the minor. When the minor’s consent alone is legally sufficient, the minor’s decision to authorize or reject the proposed treatment is binding. Even when the minor’s consent alone is not legally sufficient, his or her consent should be obtained along with the parent’s consent whenever the minor is able to understand the significance of the proposed procedures. If there is a question as to the sufficiency of the minor’s consent, the servicing SJA or legal advisor will be consulted. • (1) If not prohibited under the laws of the State in which the MTF is located, parents may grant powers of attorney to authorize other persons to consent to medical care for minor children. Mature minor children may be granted authority to consent to care for themselves and other minor children of the Family or to other persons appointed by the parents or legal guardian. Members of Army MTF staff may not accept appointment as a special attorney for this purpose unless based solely on a personal relationship with the sponsor. A health care provider/practitioner who accepts such appointment will not consent to any treatment he or she authorizes or performs unless approved by the MTF commander or designee. • (2) Persons who wish to execute a power of attorney will be referred to the appropriate SJA or legal office for assistance. • h. Military minors. Members of the Uniformed Services who would otherwise be minors under local law are considered to be emancipated and capable of consent as if they were adults, subject to command aspects of medical care for AD Soldiers as described in AR 600-20. • i. Sterilization of mental incompetents. A determination of the specific authority of parents, courts, or other third parties to consent to or authorize the sterilization of mental incompetents in the State where the MTF is located will be coordinated with the local SJA or servicing legal advisor before performing the procedure. Minors & Healthcare - Selner

State Law • Basic rule = parental consent required • Alternatives to parental consent • Legal guardians • Relatives • Court orders • Foster parents • Custodial entity (social worker, probation officer) • School Minors & Healthcare - Selner

State Laws for Minors and Consent • All states have laws which give minors the limited ability to consent to health care • Some based on status • Some based on services being sought • Emergency medical treatment usually does not require consent Minors & Healthcare - Selner

Authority to Consent Based on Status • Emancipated minor • Married minor • Minor in the armed services • “Mature minor” • Minor living separate and apart from parents • High school graduate • Minor over a certain age • Pregnant minor • Incarcerated minor Minors & Healthcare - Selner

Emancipated Minors • Minor is self-reliant or independent • Married • In military service • Emancipated by court ruling • Financially independent and living apart from parents • Some states include college students, runaways, pregnant minors, or minor mothers Minors & Healthcare - Selner

Mature Minors • Recognized by the AMA, AAP, and the ARMY • Largely based on common law in states that permit it • Usually only minors who are 14 years or older • Must display sufficient maturity and intelligence to provide informed consent • Understand and appreciate the benefits, risks, and alternatives of proposed treatment • Able to make a voluntary and rational choice • Physician determines if the mature minor exception applies • Must consider nature and degree of risk of the proposed treatment, whether the proposed treatment is for the minor’s benefit, is necessary or elective, and is complex • Used when no other exceptions to parental consent apply and parental involvement is impractical or problematic • Risk of liability low when the following are present: • Minor is 15 years of age of older • Minor is able to give informed consent • Proposed treatment is for the minor’s benefit • Proposed treatment is medically necessary • Proposed treatment does not involve complex, high-risk medical procedures or complex high-risk surgery Minors & Healthcare - Selner

Authority to Consent Based on Services Being Sought • Care related to pregnancy and birth • Contraceptives / family planning services • STD prevention, diagnosis & treatment • HIV / AIDS testing & treatment • Drug / alcohol abuse counseling & treatment • Reportable disease prevention, diagnosis & treatment • Outpatient mental health services • Suicide prevention • Treatment for sexual assault Minors & Healthcare - Selner

Special Cases - Contraceptives • Highly charged religious and moral issue, so… • Rely on the law to avoid the emotional side of the issue • 21 states and D.C. specifically permit minors to consent to contraceptive services without parental consent • 14 states permit minors to consent if they are in specific categories or meet specific limitations • 15 states have no specific laws or policies • Left to the provider’s discretion? • Often confused with “age of consent” laws • Can create confusion about providing services to teens • Risk of selective interpretation depending on one’s beliefs Minors & Healthcare - Selner

Impact of Federal Law • Public Health Service Act - 1970 • Expanded services and confidentiality to teens • Carey V. Population Options - 1977 • Recognized 14th amendment right of privacy for minors, giving them the fundamental right of choice of “whether to bear or beget children” • Expanded to permit consent for contraceptives • Parental notification ruled unconstitutional - 1983 Minors & Healthcare - Selner

Special Cases - STDs • All states and D.C. specifically permit minors to consent to medical testing and treatment for STDs • Age limit lower in some states • 29 states include HIV testing and treatment • One state requires parental notification with a positive HIV result Minors & Healthcare - Selner

Special Cases – Prenatal Care • 29 states and D.C. specifically permit categories of minors to consent to prenatal care • Age limitations • “Mature minor” test • 12 states permit but do not require parental notification • 16 states have no explicit policy Minors & Healthcare - Selner

Special Cases - Abortions • Abortion laws for minors • By 1976, Federal courts allowed states to invoke parental notification • Required all states to have a judicial bypass option • AR 40-400, para 2-18. Abortions. • a. Abortions may be performed in Army MTFs at Government expense only when the life of the mother would be endangered if the fetus were carried to term. • b. Eligible beneficiaries may obtain abortions in overseas Army MTFs on a prepaid basis only if the pregnancy is the result of rape or incest. Prepaid abortions for rape and incest are not available in stateside Army MTFs. Charges for prepaid abortions for all beneficiaries, including AD Soldiers, will be based on the established full reimbursement rate for same-day surgery for the particular category of patient. The laws of the host nation apply when performing abortions under this paragraph. • c. Abortions for other than AD Soldiers will be subject to the availability of space and facilities and the capabilities of the professional staff. … Written consent of the patient is required before the procedure. Consent of unemancipated minors will be obtained according to paragraph 2-12. … Minors & Healthcare - Selner

Minors and Consent, By State • Tables taken from The Guttmacher Institute, www.guttmacher.org • An Overview of Minors’ Consent Law - 2008 • Minors’ Access to STI Services – 2008 • Minors’ Access to Prenatal Care – 2008 • Minors’ Access to Contraceptive Services – 2008 • Minors’ Rights as Parents – 2008 Minors & Healthcare - Selner

Minors & Healthcare - Selner

Additional consent issues… • Step-children • Deployed parent(s) • Medical Research • Sterilization • Minor Parents Minors & Healthcare - Selner

Privacy / Confidentiality • Revealing information only to persons authorized by the patient, the law or regulation • Confidentiality is not guaranteed • Many states permit parental notification of health care • Mandatory reporting by Federal or State law • Abuse or neglect, including statutory rape • Patient is an imminent danger to self or others Minors & Healthcare - Selner

Federal laws pertaining to Minors and Privacy Privacy Act Health Insurance and Portability and Accountability Act (HIPAA) Family Education Rights and Privacy Act (FERPA) State Laws Federal laws permit disclosure based on “other” statutes, such as state laws requiring or permitting disclosure to parents Where state law silent, health care provider decides whether to release records using past practice and judgment Privacy of Medical Records Minors & Healthcare - Selner

The DoD HIPAA Privacy regulation preempts state law except : When disclosing PHI about a minor to a parent, guardian, or person acting in loco parentis of such minor. In this case the laws of the state where treatment is provided applies. When DoD rules, procedures, or other applicable policy call for DoD components to follow state law with respect to the matter and where state law is more stringent than the Privacy Rule. Slide taken from TRICARE Privacy Briefing, HIPAA Privacy Implementation, 2002 TRICARE Conference HIPAA PRIVACY Preemption of State Law Minors & Healthcare - Selner

Parent normally has access to records HIPAA Privacy Rule exceptions for minors Where parental consent not required under State or other applicable law When minor obtains care at direction of court (judicial bypass) When the parent agrees that minor and provider may have a confidential relationship (implied confidentiality) Parent may have access where State law permits parental notification HIPAA Minors & Healthcare - Selner

Army Regulations - Disclosure • AR 40-66, para 2-3b1. Requests from third parties when patient consents to disclosure. • If the patient is a minor child, a parent or legal guardian must sign the consent form on behalf of the child. A minor child is any person who has not attained the age of 18 years and who is not emancipated as determined by the law of the State in which the MTF is located. • (See the definition of a “patient with decision making capacity” in AR 40–3, glossary.) Minors & Healthcare - Selner

Army Regulations - Privacy • AR 40-66, para 2–6. Medical records of teenage family members. • a. Disclosure of Information. • (1) Minors have rights to access under the Privacy Act … Parents or guardians have a right to access the medical records of their minor children under the Privacy Act … The law of the State in which the minor is located determines whether … the child is a minor. … If, however, the teenager is a minor under the State law where he or she resides, then the law of the State in which the medical record is maintained governs the disclosure of information from that record. Patient administrators must be especially sensitive to restrictions contained in statutory or regulatory programs for— • (a) Drug and alcohol abuse. • (b) Venereal disease control. • (c) Birth control. • (d) Abortion. • (2) For overseas installations, the opinion from the DOD Privacy Board Legal Committee (23 September 1998) will be used. (See fig 2–2.) Minors & Healthcare - Selner

AR 40-66, Figure 2-2.Defense Privacy Board Advisory Opinion - The Privacy Act and Minors, 23 Sept 1998 The Privacy Act applies to any "individual" which is defined as "a citizen of the United States or an alien lawfully admitted for permanent residence." … [N]o restriction is imposed on the basis of age; therefore, minors have the same rights and protections under the Privacy Act as do adults. The Privacy Act provides that "the parent of any minor . . . may act on behalf of the individual." … This subsection ensures that minors have a means of exercising their rights under the Privacy Act. …It does not preclude minors from exercising rights on their own behalf, independent of any parental exercise. Parental exercise of the minor's Privacy Act rights is discretionary. A Department of Defense (DoD) component may permit parental exercise of a minor's Privacy Act rights at its discretion, but the parent has no absolute right to exercise the minor's rights absent a court order or the minor's consent. … Further, the parent exercising a minor's rights under the Privacy Act must be doing so on behalf of the minor and not merely for the parent's benefit. DePlanche v. Califano, 549 F. Supp. 685 (W.D. Mich. 1982). The age at which an individual is no longer a minor becomes crucial when an agency must determine whether a parent may exercise the individual's Privacy Act rights. With respect to records maintained by DoD components, the age of majority is 18 years unless a court order states otherwise or the individual, at an earlier age, marries, enlists in the military, or takes some other action that legally signifies attainment of majority status. Once an individual attains the age of majority, Privacy Act rights based solely on parenthood cease. Army Regulation – Privacy Minors & Healthcare - Selner

Federal - Child Abuse Prevention and Treatment Act (CAPTA) State statutes require reporting of child abuse and neglect Varying definitions of what constitutes abuse, who can be reported for abuse, and who is required to report Depending on state laws and practices, teen dating violence situations may result in a mandated report Mandatory Reporting Minors & Healthcare - Selner

Informative Resources- Consent and Privacy - • Army Regulations 40-3, 40-66, 40-400 • TRICARE Operations Manual, 6010.51-M – 2002 (with changes) • TRICARE Privacy Briefing – HIPAA Privacy Implementation – 2002 TRICARE Conference • American Academy of Pediatrics • Informed Consent, Parental Permission, and Assent in Pediatric Practice, Pediatrics, 95:2, 314-317, February 1995 • Consent for Emergency Medical Services for Children and Adolescents, Pediatrics, 111:3, 403-406, March 2003 • Contraception and Adolescents - 2007 • GWU, School of Public Health & Health Services • Policy Brief 2: Assessing the Legal Environment of Health Information Technology, Health Information Control, and Minor Children • Carey v. Population Services Int., 431 U.S. 678 (1977) • Inconsistency Among American States on the Age at Which Minors Can Consent to Substance Abuse Treatment, Pedro Weisleder, MD, PhD, J Am Acad Psychiatry Law 35:317–22, 2007 • Consent and Confidentiality Laws for Minors in the Western United States, Neinstein LS, West J Med147:218-224, Aug 1987 Aug; National Center for Youth Law, www.youthlaw.org • The Guttmacher Institute, www.guttmacher.org • An Overview of Minors’ Consent Law - 2008 • Minors’ Access to STI Services – 2008 • Minors’ Access to Prenatal Care – 2008 • Minors’ Access to Contraceptive Services – 2008 • Minors’ Rights as Parents – 2008 • Treatment of Minors, Encyclopedia of Everyday Law, enotes.com Minors & Healthcare - Selner

More . . . Incompetent Patients • Incompetent = unable to understand and make informed health care decisions (includes minors) • Unconscious / Comatose • Heavily sedated • Various medical conditions • Currently a huge issue with wounded soldiers returning from Iraq or Afghanistan • Always an issue with seriously injured patients, severely ill patients, and elderly patients • Focus must be on the desires of the patient (if known) • Do desires equate to what is medically best? Minors & Healthcare - Selner

Why do Issues Arise with Incompetent Patients? • Most people not prepared for these types of eventualities • Soldiers not executing MCPOAs & Living Wills at PORs or SRPs • Command not enforcing requirement – it is only a block to check • Confusion between General POA and MCPOA / Living Will • Soldiers frequently have GPOA, rarely have MCPOA or Living Will • Family Feuds = Highly emotional, volatile situations • Impromptu marriages or new spouses • Separations • No available surrogate • Divorced or estranged • Elderly • John Doe Minors & Healthcare - Selner

The Big Issue withIncompetent Patients? • Who makes decisions on behalf of the patient in these areas? • Health care • Consent or MCPOA • End-of-life • Withdrawal of Care or AMD • Money • GPOA Minors & Healthcare - Selner

The Big Issue withIncompetent Patients? • Other Decisions • Medical Research • Intent to Benefit (10 USC 980) • Additional nurse on duty? • More frequent vitals checks? • Shouldn’t we already provide SOC treatment? • Access to the Patient / Visitors • Release of Medical Information Minors & Healthcare - Selner

How Should You Handle Issues Involving Incompetent Patients? • Get emotion out of the issue • Be the honest & unbiased broker • Providers and family/friends highly charged - stay composed • The answer might be pretty simple once you take the pot off the fire • Go to the law for the answer • Most often state statutes on consent, AMDs, POAs • Statutes create hierarchies for decision making Minors & Healthcare - Selner

Sample Decision-Making Hierarchy • Typical Hierarchy for Consent • Court-appointed guardian • POA holder • MCPOA for health care • Living Will or AMD for end-of-life • GPOA for financial • Spouse • Adult child(ren) • Parents • “Other” • Nearest living relative, person clearly designated before incompetence, member of the clergy Minors & Healthcare - Selner

Remember the Surrogate’s Role • Surrogate decision maker, be it the spouse, children, or POA holder, must do what the patient would do (if known) • How do we know? • Ask, have providers ask, and have case managers ask • Look at extrinsic evidence • Good faith standard Minors & Healthcare - Selner

Concerns • Privacy and HIPAA • Who is entitled to information? • What if surrogate appears to not be acting in good faith? • Guaranteed Congressional • Someone will be unhappy • Follow the law and you’ll be OK Minors & Healthcare - Selner

Thank You! • Questions? Minors & Healthcare - Selner

Minors and Healthcare: Consent, Privacy and More