Massachusetts: minor consent, confidentiality, and custody

Who consents to treatment

A person reaches the age of majority in Massachusetts at eighteen. Massachusetts has no general emancipation statute, but G.L. c.112, § 12F lets a minor consent to their own medical or dental care if the minor is married, widowed, or divorced; is the parent of a child; is a member of the armed forces; is pregnant or believes they are; is living separate and apart from a parent and managing their own financial affairs; or reasonably believes they have a disease dangerous to the public health, for care of that disease. The section also protects a provider who treats a minor without parental consent when delay would endanger the minor's life, limb, or mental well-being.

Information and records kept in connection with care a minor consented to under § 12F are confidential between the minor and the clinician and may not be released, including to the parent, without the minor's consent, unless the clinician reasonably believes the minor's condition is so serious that life or limb is endangered.

Outpatient mental health treatment

Massachusetts has no statute setting an age at which a minor may consent to outpatient mental health treatment. Two routes exist:

1. A § 12F category. A sixteen-year-old living apart from parents and managing their own affairs, a pregnant minor, and the other categories above may consent to mental health care as part of their medical care.
2. The mature minor rule. Massachusetts courts have recognized that a minor who is capable of giving informed consent may consent to treatment, and the Department of Mental Health regulations allow a facility or program to determine that a minor is a mature minor who can consent to treatment and, in some circumstances, to decline to notify the parents. The determination is the clinician's, must be documented, and should address the minor's understanding of the treatment, its risks, and the alternatives.

In practice, most outpatient clinicians obtain parental consent for a minor under sixteen and treat a sixteen- or seventeen-year-old without it only on a documented mature minor determination. Medication is not excluded by statute, but prescribing on a mature minor determination alone is unusual and is a matter for institutional policy.

Inpatient treatment: G.L. c.123, §§ 10 and 11

• A person sixteen or older may apply for admission to a mental health facility as a conditional voluntary patient on their own application (§ 10(a)). The parent or guardian may apply for the admission of a minor under eighteen.
• A conditional voluntary patient may give written notice of intent to leave and must be discharged within three business days unless the facility files a petition for commitment (§ 11). Minors have the same right.
• Emergency restraint and involuntary hospitalization follow § 12 and are outside the scope of this page.

Drug and alcohol treatment: G.L. c.112, § 12E

A minor twelve or older who is found to be drug dependent by two or more physicians may consent to hospital and medical care related to the diagnosis or treatment of the dependency, other than methadone maintenance. The consent is as effective as an adult's, the parent is not liable for the cost unless the parent consents, and the records are confidential between the minor and the physician on the same terms as § 12F. Records of a program that meets the federal definition are also subject to 42 CFR Part 2.

What a parent is entitled to know

A parent who consents to treatment is ordinarily the minor's personal representative under HIPAA and may access the record. G.L. c.112, § 12CC governs a patient's access to a psychotherapist's records and lets the psychotherapist decline direct access where it would adversely affect the patient's well-being, providing the record to another clinician instead.

Three situations change the parent's access:

1. Care the minor consented to under § 12F or § 12E is confidential from the parent by statute, as described above, and HIPAA defers to that (45 CFR 164.502(g)(3)).
2. Care provided on a mature minor determination is, by the logic of the determination, care the minor controls; document the reasoning and the limits you set.
3. Psychotherapy notes kept separately have their own protection under HIPAA regardless of who consented.

Outside those situations, Massachusetts does not give adolescents a general right to confidentiality from parents. Agree on confidentiality expectations with the family at the first visit.

Divorced or separated parents

Massachusetts distinguishes legal custody from physical custody. Shared legal custody means continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare, including matters of education, medical care, and emotional, moral, and religious development (G.L. c.208, § 31). Three practical rules follow:

• Ask for the judgment. If one parent has sole legal custody, that parent's consent is the one that counts. Under shared legal custody, 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.
• Physical custody does not decide access to records. Under § 31, the parent who does not have physical custody has access to the child's academic, medical, hospital, or other health records on the same basis as the custodial parent, 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 minor's own consent is unaffected by the custody arrangement.

When the minor is at risk

Duty to warn. Massachusetts's duty is statutory. Under G.L. c.123, § 36B, a licensed mental health professional has a duty to take reasonable precautions to warn or protect a potential victim in two situations: the patient has communicated an explicit threat to kill or inflict serious bodily injury upon a reasonably identified victim and has the apparent intent and ability to carry it out; or the patient has a history of physical violence known to the professional and the professional has a reasonable basis to believe there is a clear and present danger that the patient will attempt to kill or seriously injure a reasonably identified victim. Reasonable precautions include communicating the threat to the victim, notifying law enforcement, and arranging voluntary or involuntary hospitalization. No duty arises without an identified victim. Document the threat, the assessment, and the steps taken.

Mandated reporting. Under G.L. c.119, § 51A, physicians, psychologists, social workers, licensed counselors and therapists, nurses, school personnel, and the other listed mandated reporters who have reasonable cause to believe that a child under eighteen is suffering physical or emotional injury from abuse or neglect must make an immediate oral report to the Department of Children and Families (Child-at-Risk Hotline 1-800-792-5200) and file a written 51A report within forty-eight hours. A reporter in an institution may notify the person in charge, who then reports, but the reporter keeps the right to report directly. Failure to report carries a fine; 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.