In 1996 President Clinton signed the Health Insurance Portability and Accountability Act of 1996(HIPAA) into law. Establishing that every American’s health information is confidential, and the people have a right to pick and choose who may access it. While many would assume otherwise, this includes minors. When it comes to a child receiving care, a parent or guardian is considered the “personal representative” of the child. This means they make the decisions when it comes to care, and have access to all health information in regards to their child. While that sounds simple and straight forward, once the minor reaches the age of 12, they obtain the right to receive certain services that do not require consent from a parent or guardian.
Children become eligible for mental health treatment and services at age 12 that do not require consent from a personal representative. If a minor explicitly says not to share the information from the meeting with their parents, the doctor or other medical professional is not legally allowed to share the information with the parent, or anyone else1. Of course this may be voided by a “duty to warn” situation which means the minor has said or shown signs of putting themselves, or others in imminent harm2. Most states limit treatment to five, 45-minute outpatient sessions before the personal representative is notified, or the minor is placed in inpatient care. If a minor is moved to inpatient, it does not mean the personal representative has access to specific treatment, unless the doctor deems it in the minor’s best interest to notify the personal representative. Once the minor reaches 16, they may admit themselves into an inpatient mental health facility without consent, but the personal representative will most likely be notified of admission. If a personal representative places the minor in care, outpatient or inpatient, they may be able to access the information at the health professional’s discretion.
In all states, children are allowed to receive tests and treatment for STI’s without parent’s consent, and have the ability to withhold information in regards to results and treatment3. In 18 states however, doctors have a right to inform the personal representative if they feel it is in the minor’s best interest. No state requires doctors to tell parents of STI treatment received.
The right to confidentiality for minors when it comes to prenatal care, putting a child up for adoption, and medical care for a minor’s child vary greatly across the United States. The Bush administration reformed HIPAA in 2002 so states could determine what degree of confidentiality the minor is entitled to when a minor has a child. This link provides specific information for every state. The biggest issue with treatments of a minor’s child are states having no policy or precedent as to if the information may be kept confidential from a personal representative. Many states, like Illinois, determined if someone has a child they are no longer a “minor” and all care for the minor or minor’s child may be confidential.
If a doctor were to violate any of these rights, they are subject to multiple fines. The chart below from The Department of Health and Human Services breaks down penalties for HIPAA violations by doctors or other medical professionals. Said individuals are subject to the same fines if they were to violate a minor or an adult’s HIPAA rights. A majority of the time a medical professional will not be held accountable for withholding information, minor or not. So unless it is explicitly stated that they should withhold, or not withhold, they are obligated to keep all information confidential.
Minors have rights that can keep some of their health information confidential from everyone, including parents. While it should be ideal for minors to be completely open to their parent or guardian about their health, some situations do not allow that to be the case. Many minors come from different sociological backgrounds, and may be put in harms way if their parents were to find out they were sexually active or receiving mental health treatment. Any of these rights can be lost if a doctor or health professional feels that it is in the minor’s best interest to notify their personal representative. The New Hampshire Supreme Court most notably set this precedent in 2005 with Berg vs. Berg. In the case, a father was trying to access his daughter’s mental health treatment records and was denied access by the psychiatrist. The Plaintiff argued he had a constitutional right to his child’s records, and the court ruled in favor of the defendant, stating parents “do not have the exclusive right to assert or waive the privilege on their child’s behalf. The trial court has the authority and discretion to determine whether assertion or waiver of the privilege is in the child’s best interests.”