Illinois: minor consent, confidentiality, and custody

Who consents to treatment

A person reaches the age of majority in Illinois at eighteen. Under the Consent by Minors to Health Care Services Act (410 ILCS 210), a minor who is married, pregnant, or a parent may consent to their own health care, and a court may emancipate a minor under the Emancipation of Minors Act (750 ILCS 30). Outside those cases, a parent or guardian consents, with the mental health and substance use exceptions below.

Outpatient counseling and psychotherapy: 405 ILCS 5/3-501

A minor twelve or older may request and receive counseling services or psychotherapy on an outpatient basis without the consent of a parent or guardian, within limits the Mental Health and Developmental Disabilities Code sets:

• For a minor under seventeen, the services are limited to eight sessions of ninety minutes or less before parental consent is required to continue (raised in 2017 from five sessions of forty-five minutes).
• The minor's parent or guardian is not informed of the counseling without the minor's consent unless the facility director or therapist believes that disclosure is necessary; if so, the minor is told first.
• The parent is not liable for the cost of services the minor consented to on their own.
• The section covers counseling and psychotherapy. Medication is not included and needs the parent.

The eight-session window is a bridge to family involvement. Use it to build the alliance and the case for bringing the parent in, since continuation, medication, and any higher level of care will need the parent.

Inpatient treatment: 405 ILCS 5/3-502 and following

• The minor's own application. A minor sixteen or older may be admitted as a voluntary recipient on the minor's own signed application, is treated as an adult voluntary recipient under Article IV, and the parent or guardian is informed of the admission immediately (§ 3-502).
• A parent's application. Any minor may be admitted on the application of a parent, guardian, or person in loco parentis if the facility director finds that the minor has a mental illness or emotional disturbance severe enough that hospitalization is necessary and the minor is likely to benefit (§ 3-503). The application must state the minor's objection and hearing rights in plain language.
• Objection. A minor twelve or older must be told, in a way the minor can understand, of the right to object to the admission. If the minor objects, the minor is discharged within fifteen days, excluding weekends and holidays, unless the objection is withdrawn or a petition for continued hospitalization is filed and the court orders otherwise (§ 3-505 and following).

Involuntary admission of a minor follows the same Code and is outside the scope of this page.

Drug and alcohol treatment: 410 ILCS 210/4

A minor twelve or older who may be intoxicated or have a substance use disorder, or who has a family member who abuses drugs or alcohol, may consent to health care services or counseling related to the prevention, diagnosis, or treatment of substance use. The consent of the parent is not required, the minor's consent is as effective as an adult's, and the provider may involve the parent as clinically appropriate. Records of a program that meets the federal definition are also subject to 42 CFR Part 2.

Who may see the records: 740 ILCS 110/4

The Mental Health and Developmental Disabilities Confidentiality Act is stricter than most states about parents and adolescents:

• A parent or guardian of a recipient under twelve is entitled to inspect and copy the record.
• For a recipient twelve to seventeen, the parent or guardian may inspect and copy the record only if the recipient is informed and does not object, or if the therapist does not find compelling reasons for denying access. The parent is always entitled to be told the current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication.
• The recipient twelve or older may inspect and copy their own record.

HIPAA points the same way for care the minor consented to on their own under § 3-501 or 410 ILCS 210/4 (45 CFR 164.502(g)(3)). Separately kept psychotherapy notes have their own protection under HIPAA. Even so, agree on confidentiality expectations with the family at the first visit: what will be shared, what stays between clinician and adolescent, and the safety situations in which the parent will always be involved.

Divorced or separated parents

Illinois replaced "custody" with an allocation of parental responsibilities in 2016. The allocation judgment assigns significant decision-making responsibilities, including health, to one parent or to both, and sets a parenting-time schedule (750 ILCS 5/602.5, 602.7). Three practical rules follow:

• Ask for the allocation judgment. If health decision-making is allocated to one parent, that parent's consent is the one that counts. If it is shared, either parent can ordinarily consent to routine treatment, but a major decision one parent opposes is a dispute for the parents, and if necessary the court, to resolve. Pause non-urgent treatment, document what each parent was told, and do not pick a side.
• Parenting time does not decide access to records. Under 750 ILCS 5/602.11, access to records and information pertaining to a child, including medical records, may not be denied to a parent because that parent does not have the majority of parenting time, unless a court orders otherwise. A parent asking you to withhold records from the other parent is not, on their own, a basis to do so. The Confidentiality Act's limits for minors twelve and older apply to both parents equally.
• The minor's own consent is unaffected by the allocation.

When the minor is at risk

Duty to warn. Illinois's duty is statutory. Under 405 ILCS 5/6-103, a therapist or recipient's treating professional incurs a duty when the recipient has communicated a serious threat of physical violence against a reasonably identifiable victim or victims. The duty is discharged by making reasonable efforts to communicate the threat to the victim and to notify law enforcement, or by taking other reasonable steps the circumstances call for, including hospitalization. No duty arises from a threat without an identifiable victim. Document the threat, the assessment, and the steps taken.

Mandated reporting. Under the Abused and Neglected Child Reporting Act, 325 ILCS 5/4, physicians, psychologists, licensed counselors and therapists, social workers, nurses, school personnel, and the other listed professionals who have reasonable cause to believe that a child known to them in their professional capacity may be abused or neglected must immediately report to the DCFS Child Abuse Hotline at 1-800-252-2873 or through the online reporting system. The duty is individual and is not satisfied by telling a supervisor, although where several mandated reporters at one workplace share the same reasonable cause, one may be designated to report and must confirm it to the others in writing within forty-eight hours. Mandated reporters must complete the state's training on licensure and periodically after. Willful failure to report is a misdemeanor; good-faith reporters are immune.

Hospitalization. See the inpatient section above.

School records

A school's records about a student, including records from a school counselor or school-based clinician employed by the district, are governed by FERPA rather than HIPAA, and parents have rights of access under FERPA until the student turns eighteen. Records a school receives from an outside clinician become part of the education record once filed. Send the school what it needs to act, not the full evaluation.