New Jersey: minor consent, confidentiality, and custody

Who consents to treatment

A person reaches the age of majority in New Jersey at eighteen. Under N.J.S.A. 9:17A-1, a married minor, and a minor who is pregnant or believes they are, may consent to medical care for themselves and, where applicable, their child. New Jersey has no emancipation statute; a court decides emancipation on the facts, and a minor living independently is not emancipated just by living independently. Outside those cases, a parent or guardian consents, with the exceptions below.

Outpatient behavioral health treatment: N.J.S.A. 9:17A-4

A minor sixteen or older may consent to temporary outpatient behavioral health treatment, not including medication, from a physician, an advanced practice nurse, a psychologist, or a licensed professional counselor, without the consent of a parent, guardian, or anyone else. The consent is as effective as an adult's and cannot be disaffirmed because of the minor's age. The treatment is confidential, and the provider is not required to tell the parent that the minor is receiving it.

Two things to note:

• The statute says "temporary." It does not define the term, and the sensible reading is a period of outpatient treatment during which the family is brought in, not an indefinite course of therapy without the parent.
• Bills to lower the age to thirteen or fourteen have been introduced in several sessions. Check the current text before relying on the age.

A minor under sixteen needs a parent's consent for outpatient mental health treatment, outside the substance use rule below.

Drug and alcohol treatment: N.J.S.A. 9:17A-4

The same section lets a minor of any age consent to treatment for drug use or alcohol use disorder, and for sexually transmitted infections, from a physician, an advanced practice nurse, or a licensed alcohol or drug treatment provider. No other person's consent is needed, the treatment is confidential, and the provider is not required to report it to the parent. Records of a program that meets the federal definition are also subject to 42 CFR Part 2.

Inpatient treatment: N.J.S.A. 30:4-27.1 and following

A parent or guardian consents to a minor's voluntary admission to a psychiatric facility or a children's crisis intervention service. A minor who may need involuntary commitment is screened and, if the standard is met, committed under the same framework that applies to adults, with the court appointing counsel for the minor and the parent entitled to notice. The children's system of care administered by the Department of Children and Families coordinates access to crisis and inpatient services for minors. Check the facility's and the county screening service's procedures for the details, which vary.

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. Psychologist and psychiatrist communications are privileged under N.J.S.A. 45:14B-28 and the physician-patient privilege, which govern disclosure to third parties rather than access by the parent.

Two situations change the parent's access:

1. Treatment the minor consented to under § 9:17A-4 is confidential by statute, and the provider is not required to tell the parent. HIPAA defers to that: where the minor lawfully consented and no parental consent was required, the minor controls the protected health information for that care (45 CFR 164.502(g)(3)).
2. Psychotherapy notes kept separately have their own protection under HIPAA regardless of who consented.

Outside those situations, New Jersey does not give adolescents a general right to confidentiality from parents. 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

New Jersey custody orders under N.J.S.A. 9:2-4 may award joint legal custody, sole custody with parenting time, or another arrangement. Legal custody means responsibility for the major decisions regarding the child's health, education, and general welfare; joint legal custody means both parents share it. Three practical rules follow:

• Ask for the order when the family is separated. If one parent has sole legal custody, that parent's consent is the one that counts. Under joint 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.
• Residence does not decide access to records. Under N.J.S.A. 9:2-4.2, every parent has access to records and information pertaining to their unemancipated child, including medical, dental, insurance, child care, and educational records, whether or not the child lives with that parent, unless a court finds that access is not in the child's best interest or is sought to harm the other parent. 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. New Jersey's duty is statutory. Under N.J.S.A. 2A:62A-16, a licensed psychologist, psychiatrist, physician, nurse, clinical social worker, or marriage and family therapist incurs a duty to warn and protect when the patient has communicated a threat of imminent, serious physical violence against a readily identifiable individual or against the patient's own self, or when the circumstances are such that a reasonable professional in that position would believe the patient intended to carry out such an act. The duty is discharged by arranging voluntary or initiating involuntary hospitalization, warning the intended victim (or the parent or guardian of a victim who is a minor), notifying law enforcement of the threat and the identity of the victim, or, for a threat against the patient, notifying the police or a family member. Outside those circumstances, the statute immunizes the professional from liability for the patient's violence. Document the threat, the assessment, and the steps taken.

Mandated reporting. New Jersey's reporting duty is universal. Under N.J.S.A. 9:6-8.10, any person having reasonable cause to believe that a child has been subjected to abuse or acts of abuse must report it immediately to the Division of Child Protection and Permanency at 1-877-652-2873 (1-877-NJ-ABUSE). Where possible, the report includes the child's name, the nature of the injury, and the information that led to the belief. The duty is individual and cannot be satisfied by telling a supervisor. Under § 9:6-8.14, knowing failure to report is a disorderly persons offense; good-faith reporters are immune (§ 9:6-8.13).

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.