New York: minor consent, confidentiality, and custody

Who consents to treatment

A person reaches the age of majority in New York at eighteen. Under Public Health Law § 2504, a person eighteen or older, a minor who is the parent of a child, and a minor who is married may consent to their own medical care; a pregnant minor may consent to care related to the pregnancy; and any person may be treated without consent in an emergency. New York has no general emancipation statute. Outside those categories, a parent or guardian consents, and the exceptions below are specific to mental health and substance use treatment.

Outpatient mental health services: Mental Hygiene Law § 33.21

New York does not set an age at which a minor may consent to outpatient mental health treatment. Instead, § 33.21(c) lets a mental health practitioner provide outpatient services to a minor without parental consent when all of the following are true:

• the minor is knowingly and voluntarily seeking the services;
• the services are clinically indicated and necessary to the minor's well-being; and
• one of three conditions applies: a parent or guardian is not reasonably available despite diligent efforts; requiring parental involvement would be detrimental to the course of treatment; or a parent has refused consent and a physician determines that treatment is necessary and in the minor's best interest.

The practitioner must document the reasons for each determination in the clinical record, together with a statement signed by the minor that the minor is voluntarily seeking services. The statute's definition of "minor" excludes a person who is the parent of a child, is married, is emancipated, or is on voluntary inpatient status on their own application under § 9.13.

The statute also states the general expectation: parents should be actively involved in a minor's treatment, and the exception is for the case where that involvement is not available or would do harm. Clinically, document the condition relied on at the first visit and revisit it; a parent who was unavailable in October may be available in November.

Medication

§ 33.21(e) requires the consent of a parent or guardian, or court authorization, for the non-emergency administration of psychotropic medication to a minor. A minor sixteen or older who consents may be given psychotropic medication without parental consent only in the circumstances the subdivision lists, which track the outpatient exceptions above (parent not reasonably available, involvement detrimental, or refusal with a physician's determination of necessity), and the prescriber must document them. In practice, prescribe with the parent's consent unless one of those documented conditions is present, and treat the exception as narrow.

Inpatient treatment: §§ 9.13 and 33.21(b)

Voluntary admission under § 9.13 depends on age:

• Under sixteen: a minor may be received as a voluntary patient only on the application of a parent, legal guardian, next of kin, or an authorized agency with custody.
• Sixteen and seventeen: the director may admit the minor either on the minor's own application or on a parent's or guardian's application. § 33.21(b) confirms that a minor sixteen or older may seek admission to a hospital, a comprehensive psychiatric emergency program, or a residential treatment facility without parental consent when the minor is voluntarily seeking treatment and the director agrees.

A voluntary patient of any age has the rights that attach to voluntary status, including notice of status and the right to request release in writing, after which the hospital must release the patient within seventy-two hours or apply to the court. Involuntary admission of a minor follows Article 9 and is outside the scope of this page.

Drug and alcohol treatment: § 22.11

For substance use treatment the default is the reverse of the mental health rule: § 22.11(b) says that steps shall be taken to involve the parent or guardian and that their consent is required for inpatient, residential, or outpatient treatment of a minor. Under § 22.11(c), a physician may nonetheless treat a minor without parental consent or involvement where, in the physician's judgment, parental involvement and consent would have a detrimental effect on the course of treatment of a minor who is voluntarily seeking it, or where a parent refuses to consent and the physician determines that treatment is necessary and in the minor's best interest. The reasons must be documented in the record. Records of a program that meets the federal definition are also subject to 42 CFR Part 2.

What a parent is entitled to know

Clinical records of mental health facilities are confidential under § 33.13, and access is governed by § 33.16, under which the parent of a minor is a qualified person who may request the record. A facility may limit a qualified person's access where it determines that disclosure could reasonably be expected to cause substantial harm to the patient or others, with a right of review. Outside the mental hygiene system, Public Health Law § 18 treats a parent of a minor as a qualified person entitled to the minor's records on the same terms.

Two situations change that:

1. Services the minor consented to under § 33.21 or § 22.11. Where the minor lawfully consented and no parental consent was required, HIPAA treats the minor rather than the parent as the person who controls the protected health information for that care (45 CFR 164.502(g)(3)), and the statutory conditions that justified treating without the parent usually justify not disclosing to the parent either. Document the reasoning.
2. Psychotherapy notes kept separately have their own protection under HIPAA regardless of who consented.

Outside those situations New York 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 York custody orders are made under Domestic Relations Law § 240 and the Family Court Act, and they may award sole or joint legal custody, with or without specified spheres of decision-making. Three practical rules follow:

• Ask for the order when the family is separated. If the order gives one parent decision-making over medical or mental health care, that parent's consent is the one that counts. If decision-making is joint or the order is silent, 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.
• Custody does not decide access to records. A parent is a qualified person under Public Health Law § 18 and Mental Hygiene Law § 33.16 without regard to custody, so a non-custodial parent may request records unless a court order limits that access. A custodial 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. A minor's ability to consent under § 33.21 does not depend on which parent has custody.

When the minor is at risk

Duty to warn or protect. New York has no statute imposing a duty to warn, and its courts have not clearly adopted a Tarasoff-type duty. What the law provides is permission: § 33.13(c) permits disclosure of otherwise confidential information to an endangered person and to law enforcement when a treating clinician determines that a patient presents a serious and imminent danger to that person, and HIPAA permits disclosure to prevent a serious and imminent threat (45 CFR 164.512(j)). Standard practice is to treat that permission as the professional standard of care: when a patient makes a credible threat against an identifiable person, take reasonable steps to protect that person, which may include hospitalization, warning the person, and notifying police, and document the reasoning.

SAFE Act reporting. Separately, § 9.46 requires a mental health professional currently treating a person to report, as soon as practicable, to the county director of community services when, in the professional's reasonable judgment, the person is likely to engage in conduct that would result in serious harm to self or others. The director forwards the report to the Division of Criminal Justice Services for firearms-licensing purposes. The duty does not apply where, in the professional's reasonable judgment, reporting would endanger the professional or increase the danger to a potential victim. The statute lists physicians, psychologists, registered nurses, and licensed clinical social workers; check the current text and your institution's policy for the full list.

Mandated reporting. Under Social Services Law § 413, physicians, psychologists, registered nurses, licensed counselors and therapists, social workers, school officials, and other listed professionals who have reasonable cause to suspect that a child before them in their professional capacity is abused or maltreated must report it. Under § 415, the report is made immediately by telephone to the Statewide Central Register (mandated reporter line 1-800-635-1522), followed by a written report on form LDSS-2221A within forty-eight hours. The duty is personal: a reporter who has direct knowledge makes the call and then notifies the institution, not the reverse. Willful failure to report is a class A misdemeanor and creates civil liability; 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.