Magnolia Counseling is a therapy practice located in the Baltimore suburbs. Its owner and primary clinician, Liz, has a busy schedule seeing clients in their twenties and thirties.
One day, Magnolia Counseling gets a phone call from a young woman named Jessica, seeking treatment; she is 16 years old and has been having thoughts of self-harm, but indicates she has no intention of acting on them. Jessica indicates that while she wants treatment, she does not want her parents to know that she is seeking treatment. Reviewing the call notes, Liz decides ethically, Jessica cannot consent to treatment on her own, and Magnolia Counseling can’t treat Jessica without her parents’ permission. She advises Jessica to please come in with her mom or dad.
Have you found yourself in this position before? What did you decide to do? Did you turn away the patient? Counsel them to return with their parents?
What if I were to tell you that, if the client, like Jessica, was 16 or 17, that, under Maryland law, they can consent to therapeutic treatment on their own? In fact, they can.
Let’s start with the basics first, though. As you may know, under Maryland law, a minor is anyone under the age of 18. So, what happens if a minor wants to have mental health treatment with a private mental health practice? If a minor client is 15 years or younger, consent is needed by their parent or guardian for treatment (Md. Code Ann., Health-Gen. § 20-102(d)).
However, at age 16, the circumstances change. A minor who is 16 or 17 can consent to mental health treatment, without parental consent; under Maryland law they are deemed to have the same capacity as an adult to consent to mental health treatment. (Md. Code Ann., Health-Gen. § 20-104(a)(1)). So, taking our scenario above, Liz and Magnolia Counseling could see Jessica as a client, with or without her parent’s consent.
It’s not ever that simple, though, is it? So, let’s expand our scenario. After talking to Magnolia Counseling’s attorney, Liz now knows that they can provide therapy services for Jessica. After Jessica comes into Magnolia’s office and goes through the intake process, she reveals that she plans to pay out of pocket for her therapy sessions. After her first session, she then reveals she cannot actually pay for her services. Liz knows that Jessica has stated she does not want her parents to know, but Liz would like Magnolia Counseling to be paid.
The issue facing Liz and Magnolia Counseling now, though, is that Jessica’s parents cannot be legally obligated to pay for Jessica’s therapy treatment. Maryland law does not require a parent or guardian or even the non-biological spouse of a parent to be obligated to pay for mental health treatment for a minor, if they did not consent to the treatment for the minor. (Md. Code Ann., Health-Gen. § 20-104).
Here’s another scenario: instead of paying out of pocket, Jessica informs Liz and Magnolia Counseling that she is on her parent’s insurance and she intends to use her insurance to pay for her therapy treatment. Many practitioners may be aware of potential issues that Liz and Magnolia Counseling are about to face, but let’s explore them anyway. We know that Jessica has made it clear she does not want her parents to know she is seeking mental health treatment. In addition to possibly discussing with Jessica the reasons for this, a second discussion must be held before anything is billed; the reason is, that if Jessica’s parents did not know she was seeking treatment, they soon may know, regardless of Jessica’s wishes.
The reason is that once the insurance company is billed for Jessica’s treatment, her parents will likely receive an explanation of benefits from their insurance company which will detail the fact that Jessica is receiving treatment at Magnolia Counseling. It won’t be difficult for them to quickly determine the types of services that Magnolia Counseling provides. As a reminder, the EOB simply explains how benefits were applied to a particular claim. It often will include the date of the service, the amount billed, the amount covered and any balance responsible for paying the provider. So, for example, if Jessica had a co-pay, the EOB would show that as well.
So as a practitioner, Liz would need to have a discussion with Jessica about the fact that her parents may still find out about her therapy (if she uses insurance) and discuss with her the issues she has with them finding out she is seeking treatment. It might be that after discussion with Jessica, there may be an opportunity to have her parents come in with her to discuss things further. Then, if Liz were able to also secure the parents’ consent and knowledge that Jessica is seeking treatment, a lot of stress might be reduced for all parties.
One other important point regarding consent when working with minors. To elaborate on this point, let’s reverse our scenario. Suppose Jessica’s parents are the ones seeking treatment for Jessica, and it’s Jessica who does not want to have the treatment. Jessica is actually deemed not to have the capacity to refuse treatment for mental health services under Maryland law. (Md. Code Ann., Health-Gen. § 20-104(a)(2)).
So, what about disclosure policies when working with minor clients? Well, there are specific rules that apply as well. Let’s go back to our original scenario where Jessica is seeking mental health treatment, but does not want her parents to know. Regardless of how the therapy is paid for and by whom, what disclosure requirements does Liz and Magnolia Counseling have? Well, per the favorite word of lawyers everywhere: it depends.
With minor clients who are 15 years or younger, practitioners are obligated to provide information, if requested by parents/guardians, about any treatment needed or provided to these minor clients. Clearly, practitioners face the important issue of trust in these situations. Namely, how do you get the minor clients to trust you and open up and confide in you as their clinician, if their parents or guardians can always have access to the information they disclose to you?
One way to address this is to have a discussion with the minor and their parents about boundaries; however, ultimately, if the parents really want to access the records, they can get them. During this discussion, ask the parents (or guardians) to trust in your judgment as the clinician. If there is truly something to be concerned about, you will make them aware of it. At the same time, the discussion you have with the minor is to inform them that you have an obligation to disclose to their parents if there is truly something you feel their parents need to be made aware of, such as imminent threat to themselves or other people, but that everything else will be held in confidence.
However, in our scenario, Jessica is 16 years old, not 15, which changes things. For 16 and 17-year-old clients, a practitioner may but is not obligated, to disclose information about treatment to the parent or guardians. At the same time, the reverse is true too: even if the minor objects, a practitioner may choose to disclose information to their parents/guardians, if they want. This is true, even if the parents/guardians are the ones who are paying, either out of pocket or through their own insurance, for the treatment of the 16 or 17-year-old minor. (Md. Code Ann., Health-Gen. II § 20-102(f)).
The ethical and practical considerations again though, are that you want the minor to trust in you and feel free to be honest and open with you. If they believe that you may choose to share information with their parents/guardians, that may dissuade them from doing so, defeating the entire point of working with a practitioner. This is obviously a difficult balance for practitioners to weigh.
The important thing again, is that if critical information regarding the minor or their treatment may need to be disclosed to parents, you are permitted to do so. In our scenario with Jessica, even if her parents did find out that Jessica was receiving treatment by Liz and Magnolia Counseling, Liz would be under no obligation to discuss the treatment being provided by Magnolia Counseling with them, unless she felt there was legitimate need to do so.
In closing, minors, especially teenagers, represent an especially vulnerable segment of the population often in great need of mental health services. Working with teenage clients can be very challenging, but can also be very rewarding and really make a difference in a teenage client’s life. As long as you are cognizant of what obligations you have under the law, working with minors can be a rewarding part of your practice.
For more information on protocols and procedures or other legal considerations regarding clients, or regarding other considerations, or to set up a free consultation, contact Mayer Law, LLC today at (443) 595-M-Law!
This article is legal information and is not provided as a source for legal advice. It is made available by Mayer Law, LLC firm for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog, you understand that there is no attorney-client relationship established between you and Mayer Law, LLC. This blog should not be used as a substitute for competent legal advice and you should consult with an attorney before you rely on this information.