Reprinted with permission from Free Associations, the newsletter for the Michigan Psychoanalytic Institute and Society, October, 2016.
Consent and privacy issues frequently arise when providing mental health care to minor patients. These issues can become especially muddled when counseling minors who are under the care of a foster parent or legal guardian. Often times, minors may have a complicated relationship with a foster parent or guardian, and therapists may become caught in the middle.
This article will provide an overview of the considerations for mental health care providers who treat minors in the custody of a foster parent or guardian.
First, it is helpful to have an understanding of the terminology and legal framework by which a non-parent may assume legal responsibility for a minor.
A foster parent is an individual who has been pre-screened by the Michigan Department of Health & Human Services (“DHHS”) and has been assigned to care for a child by a court based upon a finding that abuse or neglect of child occurred. Foster care is by its nature intended to be temporary until the child can return to the parent(s) or primary caregiver. Children will remain under the supervision of DHHS while away from their own home and under the care of a foster parent.
Foster parents may arrange for mental health or behavioral counseling for a minor; however, they may not provide consent for a minor to receive mental health medications, including medications for ADD or ADHD. If a mental health provider determines such medications are necessary, a birth parent, the court or DHHS must provide consent.
In contrast, a legal guardian is an individual who has filed a petition in a probate court affirmatively seeking to become legally responsible for the child, called a ward. There are three main types of guardianships:
- A full guardianship, where a court determines that both parents are unwilling or unable to care for a minor child. The parent’s permission or agreement is not required to appoint a full guardian. Upon filing a petition, the court will conduct a hearing to determine whether appointment of the petitioning individual is in the best interest of the minor.
- A limited guardianship, where the child’s parents willingly suspend their parental rights for a specific period of time. A limited guardianship may be used in situations where one or both of the parents are incapacitated, incarcerated, or otherwise unable to care for a minor child.
- A testamentary guardianship, where a guardian is nominated in the will or another writing by the child’s parent(s). A testamentary guardianship may be appointed by filing an “Acceptance of Appointment” with the Court.
A guardian has full power and rights to make decisions regarding mental health treatment for a minor child, subject to some exceptions which will be discussed below.
Treating Minors Under the Care of a Foster Parent or Guardian
First, it is important to note that under Michigan law, a minor 14 years of age or older may receive limited mental health services on an outpatient basis without the consent or knowledge or the minor’s parent or guardian. The services must be limited to not more than 12 sessions or 4 months. Importantly, the minor’s parent or guardian cannot be informed of the services, or review the minor’s records, without the consent of the minor. An exception exists if the provider determines that there is a compelling need for disclosure based on a substantial probability of harm to the minor or to another individual, and if the minor if informed of the professional’s intent to inform the minor’s parent or guardian.
Occasionally situations may arise where it is unclear who has legal authority over a minor’s treatment. For example, a foster parent may bring a child in for counseling, and then the child’s parents may contact the provider and object to the treatment. In such situations, the first thing a provider should do is obtain written verification that the person presenting the child for treatment has legal authority to do so. This paperwork may be in various forms; for example, if the child is under the care of a foster parent, the foster parent should have “Consent to Routine, Non-Surgical Medical Care and Emergency Medical/Surgical Treatment” card from DHHS. If the child is the ward of a legal guardian, the guardian should have a Letter of Guardianship issued by the probate court. If these documents are provided, consent from the minor’s parent for treatment is not needed.
Children placed with foster parents or guardians may often present with unique and troubling circumstances where they were badly abused or neglected by a parent, or may be unhappy with their current assigned foster parent. First and foremost, all licensed health care providers are required by law to make a report to Child Protective Services upon receiving information that gives them reasonable cause to suspect child abuse or neglect. The provider must make an immediate oral report to Child Protective Services, followed by a written report within 72 hours. Any provider who makes such a report in the good faith belief that a child is being abused or neglected is immune from criminal or civil liability.
If a provider receives information in the course of treatment that a minor has been placed with a foster parent that he/she is unhappy with, the provider may, depending on the circumstances, have recourse to contact DHHS and advise them of the situation. If a guardian is being appointed, a public hearing will be held and the provider may, again depending on the circumstances, have recourse to object to the guardianship. Frequently, a guardian ad litem is appointed in connection with guardianship proceedings to advocate for a child’s interest and act as an independent fact-finder, and may be a resource for a provider.
Specific questions about a provider’s ability to disclose details obtained during a course of treatment should be directed to an attorney.
Mercedes Varasteh Dordeski is an attorney with the Detroit office of Foley & Mansfield PLLP. She focuses on representing health care entities and providers with all issues pertaining to licensing, employment and regulatory compliance. Mercedes may be reached at (248) 721-4200 or email@example.com