Some Insight Into Who Can Consent to Mental Health Treatment for a Child Between 14 and 18 Years of Age in Pennsylvania

As I have become more experienced in the area of family law, more complicated cases come my way — in particular, custody cases. Sometimes these difficult custody cases involve teenagers with mental health issues. In this post, I do not intend to get into the “chicken/egg” argument as to whether the child’s issues cause stress in the marriage leading to a separation, or if the dysfunction of the family causes the child’s mental health issues. Suffice it to say, based on my observations, it seems to be an equal split.

My purpose is much more utilitarian: in the event a child needs mental health treatment, who can consent to the treatment? Two Pennsylvania statutes, 35 P.S. §10101.1 and 35 P.S. §10101.2, address consent to mental health treatment and access to mental health records for children between the ages of 14 and 18. For children under 14, the parents make the decision. For children over 18, the child is legally an adult and, unless the child has been found to be an incapacitated individual and a guardianship is in place, the child makes the decision.

The answer for children between 14 and 18 will sound complicated but it really is not. For a child in this age range, the child may consent to either inpatient or outpatient mental health treatment. A parent (note that I say “a” parent) may also consent. The obvious question is, can either the parent or the child revoke the consent of the other? The answer is no. Neither the parent can abrogate the child’s consent, nor can the child abrogate the parent’s. The statute specifically states that, “If inpatient mental health treatment is determined to be necessary by a physician, licensed clinical psychologist of other mental health professional … the minor’s consent shall not be necessary.” 35 P.S. §10101.1(a)(1). Correspondingly, Section 10101.1(a)(2) states that a minor 14 years old or older may consent to inpatient or outpatient mental health treatment and the minor’s parent’s consent shall not be necessary.

In the event a child is in either inpatient or outpatient treatment of their own volition and consent, and the child decides to withdraw that consent and leave treatment, a parent can continue the treatment, provided that a physician, psychologist, or mental health professional determines that continued treatment is necessary. The same logic applies in reverse in the event a parent has placed the child in treatment and seeks to discontinue the treatment, but the child chooses to continue in care.

Note that above I said that “a” parent’s consent is necessary in these situations. The statute is a way around the shared legal custody situation for the mental health providers. The parent of the child unilaterally seeking or opposing treatment may be in violation of a custody order, but that is a matter for the family court to decide, not the treatment facility. Following up on that, if the child chooses treatment and one parent disagrees, I cannot see a court denying the child treatment.

Similarly, if a physician or psychologist and one parent want the child in treatment and the other parent disagrees, absent contrary input from a different physician or psychologist, I cannot see a court denying treatment. In the event of a difference of opinion between two qualified mental health professionals, that is why we have courts and judges to decide issues like this. If custody jurisdiction exists, the matter would go to the family court. If there is no child custody jurisdiction, the case would go to the orphans’ court in the county where the child resides.

As to control of mental health records, control over the release of such records resides with the person who has provided the consent to the treatment. Release of mental health records by a parent or guardian is limited to release directly from a mental health provider to another mental health provider, or the primary care provider.

Not that long ago I had a situation where a child over 14 resided with her father and agreed to enter inpatient mental health treatment. Her mother had shared legal custody and wanted access to her daughter’s treatment records. Neither the child nor the facility was willing to release the records. The mother filed a custody contempt petition against the father. The court denied access unless the child agreed to it.

My point here is that family courts in Pennsylvania should be aware of the rules when it comes to children between 14 and 18 and their rights in mental health treatment situations.