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Adolescent Consent and Privacy: Case Studies and Best Practices

June 25, 2020

Adolescent autonomy and privacy are affected by a tangled web of state and federal laws that clinicians are expected to know and abide by. As a rule, adolescent patients cannot give consent for their own medical treatment before they reach the legal age of majority, which, in most states, is 18. The circumstances in which adolescent patients can consent to their own medical treatment vary by state; however, most states have consent exceptions based on an adolescent’s legal status (e.g., married, emancipated) and select medical conditions (“sensitive medical conditions”).

doctor in consultation with female patientWith these laws as a guide, the process of working out the sometimes competing interests of adolescents and their families should focus on promoting the well being of the adolescent patient.1 Therefore, policies and procedures should be consistent with the laws, but should allow some flexibility to accommodate unanticipated scenarios.

Sensitive medical conditions are those for which adolescents presumably would be less likely to seek treatment if doing so required them to disclose the medical condition to their parents (e.g., treatment for sexually transmitted infections [STIs], pregnancy, family planning, substance abuse, and mental health2). The Guttmacher Institute website has a chart summarizing minor consent to reproductive services in every state.

The laws surrounding the privacy of sensitive condition treatment information also vary, not only from state to state, but also among conditions. Federal law may also impact whether an adolescent’s sensitive healthcare information can be shared with parents.3,4 For example, Title X legislation requires that confidential services be available to adolescents seeking care in Title X-funded family planning programs.1

Despite legal privacy requirements, clinicians have a limited ability to control adolescent sensitive treatment information that is provided to parents by their health insurers. Consequently, any time an adolescent seeks treatment under a parent’s health insurance there is a good chance the parent will learn about it by way of an explanation of benefits (EOB) form, unless the insurer can be persuaded to accommodate the patient’s privacy request.4 It is worth noting, however, that several states have passed or proposed legislation related to increasing confidentiality protections regarding health insurance payment and billing.4

Consent and confidentiality laws can provide a framework within which to consider a particular clinical situation, but it is important for clinicians to consider each adolescent consent and privacy issue on a case-by-case basis.1 Many states allow clinician discretion to make a decision that is in the best interest of the adolescent patient.2 Consequently, it is important not only to know the adolescent consent and privacy laws that apply in your state, but also to obtain sufficient information from parents and patients to counsel both parties in a manner that is consistent with clinical and ethical guidelines and furthers the patient’s treatment goals.

Should your decision-making ever be called into question, or become the impetus for a lawsuit, documentation of the analysis leading to your consent and privacy decisions will be very important in the defense of the claims against you.

A proactive approach to patient and parent education about changes to decision-making autonomy and privacy that occur at adolescence can reduce parent/adolescent/clinician conflict.

It is important to remember that adolescent consent and privacy will be novel concepts for many patients and their parents. Providing educational materials, developing and adhering to adolescent consent and privacy policies and procedures and encouraging open lines of communication can help set appropriate patient and parent expectations.

The case studies linked here are based on calls that the NORCAL Risk Management department received from policyholders seeking risk management advice about practice issues involving adolescent patient consent and privacy. Due to the wide variations in state minor consent and privacy laws, the risk management recommendations following these cases are general in nature.

NORCAL Group Policyholders: Earn CME credit for this topic and many more. Visit the Claims Rx Directory to explore available topics and find out how to earn your CME credit.

More Information About Adolescent Consent and Privacy

The following resources provide information about additional areas of adolescent treatment that practices often find challenging relative to the consent process:

References

1. Amy L. McGuire, et. al. “Keeping Children’s Secrets: Confidentiality in the Physician-Patient Relationship.” 8 Houston Journal of Health Law and Policy, 2008;315-333.

2. Abigail English, et. al. “The HIPAA Privacy Rule and Adolescents: Legal Questions and Clinical Challenges.” Perspectives on Sexual and Reproductive Health, 2004;36(2):80-86. Citing 42 USC § 300 et seq. and 42 CFR Part 59.

3. Priya R. Pathak, et. al. “Confidential Care for Adolescents in the U.S. Health Care System.” Journal of Patient-Centered Research and Reviews. 2019;6(1):46–50. Published 2019 Jan 28. doi:10.17294/2330-0698.1656.

4. Abigail English, et. al. “Privacy Protection in Billing and Health Insurance Communications.” American Medical Association Journal of Ethics, 2016;18(3):279-287.

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