Legal

Health Rights for Adolescents (under 18 years of age)

State laws vary in regard to treatment of mental health and substance use disorders. If a patient independently consents to a health care service that is allowed as a minor, HIPAA does not give you the right to access information about that treatment. Providers should know the following about their respective state laws: 

• The age of majority (when the patient is considered an adult)
• The type of health care a minor can consent to without parental consent
• What types of health care services someone other than a parent can consent to for a minor (e.g., a court)
• Whether your state allows or requires health care providers to give parents access to certain health information about their minor children
• Whether your state prohibits health care providers from sharing with, or giving parents access to, certain information about their minor children
• Who has legal authority to make healthcare decisions for an emancipated minor or adult child who is unable to make health care decisions, if the child has not identified a personal representative in writing

Patients may have different rights in terms of what services they can obtain without permission of their parent based on age and state of residence. For example, up to age 14, most patients are dependent on their parent or legal guardian for healthcare decisions, consents, appointments, and access to medical records; however, in some states, adolescents as young as 12 years of age may be able to obtain certain services related to contraception, sexually transmitted infections, pregnancy testing, prenatal care, and/or mental health without consent of a parent or legal guardian. As youth progress into mid-adolescence at 15 years of age, they develop a better understanding of their healthcare and may be more involved in healthcare decisions. 

Adolescents under 18 years of age can receive the following specialized healthcare services without permission of a parent/guardian:

• Assessment and treatment of sexually transmitted infections (STI)
• Birth control
• Pregnancy testing and prenatal care
• Substance use treatment (age varies by state)
• Outpatient mental health treatment, both therapy and medications (age varies by state) 

Confidentiality is extremely important for adolescents, with concerns about breaking confidentiality being a barrier to accessing healthcare. Although efforts are made to maintain confidentiality, there are certain circumstances under which a provider is required to override confidentiality: 

• Disclosure by the minor that they are a risk to themselves or others
• Suspicion of abuse or neglect by an adult
• Minor involved in sexual activity with a person who is 18 years of age or older (age may vary by state)

Additional information about adolescent healthcare rights and resources can be found here.

Health Rights for Young Adults (18 years of age and older) 

Capacity: A patient’s medical or psychiatric status at times may call into question their ability to make medical decisions independently. For each point of consent, providers should evaluate whether an adult patient has the capacity to make a specific medical decision. Capacity is a person’s ability to make informed decisions. A decision of capacity can be made by a healthcare provider, with the support of social work, psychology or psychiatry consult. When providers evaluate an individual’s capacity, they are assessing if the individual understands treatment and care options, as well as their risks and benefits of whether to pursue a specific medical intervention. It is important to note that capacity may wax and wane, and may be influenced by medical factors (e.g., delirium, clinical status, or mental health status).

If a patient possesses decision-making capacity and competency, they maintain their autonomy to make their own decisions. A patient is considered to have the capacity for informed consent if they are capable of demonstrating the following capacities which can be assessed through a neuropsychological evaluation. 

• Understanding: Can the patient understand the information presented to them?
  • Appreciation: Can the patient appreciate how this information relates to their circumstances?
  • Reasoning: Can the patient compare different options and infer the associated consequences of a choice as it relates to their values?
  • Expressing a choice: Can the patient communicate their preferences and decisions? 

Guardianship:  A guardian is a person appointed by a court to be legally responsible for another person and/or for another person's property (estate) when that person has a condition that makes them unable to evaluate the necessary information to make their own decisions. An individual who requires a guardian is unable to meet their essential needs for physical health, safety, or care. The legal standard for obtaining a guardian is high. A court decides on the need for guardianship and also appoints the individual’s guardians. 

Guardianship Referrals: The legal standard for obtaining a guardian is high, and referral for guardianship evaluation is a decision that should be made in combination with the patient and family, and through multidisciplinary team support. Referrals may be considered if the patient has a diagnosed intellectual disability (Full Scale IQ of less than 70) that limits their ability to make informed decisions without risk to their health or safety, or if the patient demonstrates decreased capacity due to medical decline or an acute onset injury.

Components of everyday functioning determined to be relevant for guardianship include: 

• Care of self: The ability to maintain adequate activities of daily living, prepare meals, and protect self from harm
• Financial: The ability to manage and use money, buy and sell property, enter into contracts or leases, and protect self from coercion
• Medical: The ability to give or withhold medical consent, admit self to a health facility, manage medications, and contact help in an emergency
• Home and community life: The ability to maintain safe and clean living space, drive or use public transportation, and maintain relationships
• Civil or legal: The ability to make decisions about legal documents and to vote

Consider making a guardianship referral if the patient:

• has a diagnosis of intellectual disability (Full Scale IQ < 70) that limits their ability to make informed decisions without putting themselves at substantial risk to their health or safety
• displays capacity decline due to acute onset injury or medical decline

Healthcare Power of Attorney (POA) 

This is an individual who is authorized to make medical decisions on behalf of an incapacitated patient who is unable to communicate their wishes. The POA may also be called Healthcare Proxy, Healthcare Surrogate or Durable Medical Power of Attorney. Best practice suggests that patients should engage in discussions about their wishes with their designated surrogate well in advance of any potential emergencies or end-of-life scenarios. By having these discussions, it is presumed that the surrogate will make decisions based on their knowledge and interpretation of what the patient would have desired for themselves in such circumstances. The laws regarding the designation of a healthcare surrogate vary by state.

Advanced Directives: Advanced directives are legal documents that outline an individual's preferences regarding major medical decisions and specify healthcare options that an individual desires or rejects, currently and in the future. Although advance directives vary by state, they all designate one or more individuals who will act as spokespersons on behalf of the patient if they become unable to communicate their preferences (see Healthcare POA). This document enables patients to express their desires and maintain control over their treatment plan if they become incapacitated at the end of life. The advance directive is invaluable in assisting healthcare surrogates and providers in delivering care that aligns with the patients' wishes, particularly in evolving situations. 

Living Will: A living will commonly includes choices regarding cardiopulmonary resuscitation (CPR) and endotracheal intubation, or mechanical ventilation.  The decision to refuse these interventions is often documented as Do Not Resuscitate (DNR), Allow Natural Death (AND), or Do Not Intubate (DNI). These documents may also address the individual's preferences regarding the potential use of artificial nutrition and hydration, dialysis, blood products, and antibiotics. Enacting a living will usually requires the assessment and declaration of two physicians stating that the patient is terminally ill, suffering from an incurable illness, or in a permanently comatose state. It is important to note that state laws regarding living wills may vary. 

References: 

Carlson J, Goldstein R, Hoover K, Tyson N. NASPAG/SAHM Statement: The 21st Century Cures Act and Adolescent Confidentiality. J Adolesc Health. 2021 Feb;68(2):426-428. doi: 10.1016/j.jadohealth.2020.10.020. PMID: 33541602.

Grilo SA et al. Confidentiality Discussions awithrivate Time With a Health-Care Provider for Youth, United States, 2016. J Adolesc Health. 2019 Mar;64(3):311-318. doi: 10.1016/j.jadohealth.2018.10.301. Epub 2019 Jan 9. PMID: 30638752.

House SA, Schoo C, Ogilvie WA.  Advance Directives. 2023. In: StatPearls. Treasure Island (FL): StatPearls Publishing; 2024. Available from: https://www.ncbi.nlm.nih.gov/books/NBK459133/

Lehrer JA et al. Forgone health care among U.S. adolescents: associations between risk characteristics and confidentiality concern. J Adolesc Health. 2007 Mar;40(3):218-26. doi: 10.1016/j.jadohealth.2006.09.015. Epub 2006 Dec 14. PMID: 17321421.