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Office of Patients’ RightsAnnual Conference

2013Minors and Consent to Treatment

February 7, 2013

Suzanna Gee

Associate Managing Attorney

Disability Rights California

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Minors (defined as under 18 years old)• Unemancipated• Emancipated• Dependent• Ward

Emancipated Minors• Same due process rights as adults• Can consent to treatment• Involuntary treatment based on danger to self, danger to others, and grave disability

Parents• General legal obligation to provide for necessities of life of minor children and right to

control care often includes the right to refuse care• Adoptive Parents have same rights as birth parents unless minor is emancipated or married

Guardians• Court document specifies scope of authority regarding treatment

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Third Parties, e.g. caregivers: non traditional families in which minor lives with nonparent adult relative

• Limited to mental health treatment and NOT involuntary or experimental treatment, and not for convulsive treatment-“living with”-“qualified relative”-make contact with parent of proposed treatment and receive no objection, unless parents not able to be contacted- complete Caregiver’s Authorization Affidavit

• Statewide Prevalence Rates of Minors with Serious Emotional Disturbance and Serious Mental Illness (Department of Mental Health Data, 2004)

Population size: 4,125,270Prevalence: 367,496Percent: 8.91

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Minors in Need of Outpatient Mental Health Treatment or Residential Shelter Services

A Minor age 12 or older may consent IF:1. Attending professional opines that the minor is mature to participate intelligently;

AND2. The minor would represent a danger of serious physical or mental harm to self or to

others w/o mental health tx or counseling or residential shelter services, or the minor is the alleged victim of incest or child abuse.

“Mental Health Outpatient Services”:Governmental agency, provider on contract with government agency, runaway house

of crisis resolution center, or “professional person”“Residential shelter services”:

Residential and support services to minors on a temporary or emergency basis in a facility that serves only minors, or a licensed community care facility or crisis resolution center

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When to Presume Parental Consent

• When parents are unavailable and an “emergency exists”Emergency is an immediate situation to alleviate severe pain, or unforeseen medical conditions that could lead to serious disability or death

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Considerations Regarding Initial Involuntary Commitment of a Minor to a Facility

• Minors under age 16 should not be held with adults unless the facility has separate housing, treatment staff and programs for children and adolescents-Is there a waiver from the Director of the State Department of Social Services if undue hardship based on inadequate or unavailable alternative resources

• No minor should be admitted to the same treatment ward as an adult in custody for a violent crime, is a registered sex offender, or has a known history of exhibiting inappropriate sexual or violent behavior that would be a threat to safety of minors

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Considerations Regarding Initial Involuntary Commitment of a Minor to a Facility (cont’d)

Treatment planIf, in the opinion of the professional person conducting the evaluation theminor will require additional mental health treatment, a treatment plan shall be written and shall identify the least restrictive placement alternative in which the minor can receive the necessary treatment. (W&I section 5585.53)

After Care Plan Required For All Involuntary Minors“A mentally ill minor, upon being considered for release from involuntarytreatment, shall have an aftercare plan developed. The plan shall includeeducation or training needs, provided these are necessary for the minor’swell-being.” (W&I section 5585.57)

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Medication

"Antipsychotic medication" means any medication customarily prescribed for the treatment of symptoms of psychoses and other severe mental and emotional disorders (WIC 5008(l))

GAO Report of December 2011 reviewed the use of psychotropic medications in five states of foster youth finding that HHS guidance would be helpful – data on over-medication– medication effects on traumatized children not well understood, and – occurrence of prescribing medications for children under age 1.

(see http://www.gao.gov/assets/590/586906.pdf)

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Minors in the Custody of Juvenile Court

• Dependent: Child in danger of abuse or neglect (WIC 300s)• Ward: disobedient or truant (WIC 601s); or child who committed a crime (WIC

602s)

Due Process Rights of Minors in Juvenile Court – Key Cases• In re Michael E. (1975): The State Supreme Court held that a ward of the juvenile

court could not be signed in as “voluntary” to a state hospital by the juvenile court or by a probation officer. The ward is entitled to due process rights under the LPS

• In re Michael D. (1977): Court of Appeal provided that the court could not go around LPS due process rights established in the In re Michael E. case by appointing a guardian

Both cases recognized that the LPS Act and due process rights applied and that there could not be substituted consent

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• Juvenile Court may authorize psychotropic medication so long as :• Requested by physician-

stated reasons, description of child’s dx and behavior, described expected results, possible side effects (Judicial Council Forms: JV Form 220, 220A)

Opposing the Request for Psychotropic Medication• Minor’s attorney can file an Opposition to the Request by the Physician

-Judicial Council Form*Advocacy OpportunityAdvocates often not allowed in court proceeding due to confidentiality, but try, e.g. severe side effects, minor previously prescribed other effective medication or treatment

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Minors Under Parental Care/Control Admission of Minors to Private FacilitiesIndependent Clinical Review

Parent, legal guardian or legal representative can admit a minor aged 14-18 on a voluntary basis to an inpatient private mental health facility when:-professional states in writing -minor has a mental disorder-facility placement is reasonably likely to be beneficial for minor’s mental disorder, and -inpatient treatment is least restrictive, most appropriate setting within reasonably available places, and resources

Upon admission, facility required to:-inform minor of right to independent clinical review of further inpatient treatment-within one working day, notify county patients’ rights advocate and-provide booklet on rights of minors

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Private Facilities and the “Independent Clinical Review”:

Minor has right to be present and a right to a patients’ rights advocate

Standard of Review :-whether the minor has mental disorder-whether inpatient treatment reasonably likely to benefit, and -whether placement meets LRE

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Public Facilities and the Due Process Rights of Minors: In re Roger S.

• If over 14 years old, get a “Roger S.” hearing, pre-commitment. *Rarely happens pre-commitment.

• First 72 hours detention if 1) result of mental disorder, 2) is a danger to self or others, or 3) “gravely disabled.”

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Court Recognizes the Significant Deprivation of Liberty Interests of the Minor:

• In re Roger S. (1977): Established a minor’s right to due process, less than adults, before committed to a state hospital. These rights cannot be waived by a parent or guardian. The minor is entitled to a pre-admission hearing

• Issue is whether inpatient hospitalization is appropriate• Established right to counsel and right to present evidence• Applies to county-operated and county contracted facilities

In re Roger S. and Standard of Review• Preponderance of the evidence• Mental disorder• Requires 24 hour treatment in a locked facility• The facility represents the least restrictive and most appropriate setting to fulfill

the objectives of the treatment• Hospitalization is reasonably expected to ameliorate the mental condition, and• Whether the facility is in the minor’s home community; and if not, that the

benefits of treatment far outweigh the detriment of removal from that home community

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In re Roger S. Hearing Process

• Minor given Notice about hearing• Minor has a right to waive the hearing• Hearing before judge or administrative officer of the court• The minor has the right to an attorney (In re Antoine C. (1986))• Minor has the right to appear and present evidence• Minor must have the opportunity to confront and cross examine witnesses

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LPS Act and Due Process Protections of the Minor

• Right to Voluntary Treatment per WIC 5585.50-Involuntary treatment only when authorization for voluntary treatment is not available-Facilities’ responsibility to contact parent or legal guardian

• LPS Involuntary Treatment of Minors-Same as adults: DTO, DTS, “grave disability” defined differently-Commitment and rights, i.e. 72 hours, certification for up to 14 additional days-”Grave disability” under WIC 5585.25:Minor who, as a result of a mental disorder, is unable to use the elements of life which are essential to health, safety, and development, including food, clothing, and shelter, even though provided to the minor by others.”

Patients’ Rights of Minors• Same as adults as found in WIC 5325 and WIC 5325.1

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Analysis:

1. What type of minor? Non-emancipated (under parent care and control), or emancipated? Under third-party care?

2. What is the age of the minor?3. What type of facility? Private or public?4. What due process rights attach?5. Does the minor want mental health treatment?

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Hypo:

Kay is 17 years old and wants treatment since she wants to address her racing thoughts that she said causes her to think odd things. She said that she cannot function at school. Her parents have Kaiser and an HMO plan.

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Hypo:

Jose is 14. His dad says that Jose has been acting strangely staying up all night for days and destroying property with a hammer. Dad wants Jose to go to the county facility. Jose does not want treatment.

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Hypo:

Cal, age 16, is charged with breaking car windows and is now under the authority of the Juvenile Court. The treating doctor at Juvenile Hall wants to medicate him for his “paranoid delusions.” His probation officers wants Cal admitted to the county facility for treatment for his delusions.

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Juvenile Court Medication Forms

• http://www.courts.ca.gov/documents/jv219info.pdf• http://www.courts.ca.gov/documents/jv220.pdf (Application)• http://www.courts.ca.gov/documents/jv220a.pdf (Prescribing

Physician’s Statement)• http://www.courts.ca.gov/documents/jv222.pdf (Opposition)

Reference• California Hospital Association Consent Manual (2011)

• U.S. Government Accountability Office December 2011 Report (GAO-12-201) “FOSTER CHILDRENHHS Guidance Could Help States Improve Oversight of Psychotropic Prescriptions”(http://www.gao.gov/assets/590/586906.pdf)