Pennsylvania: minor consent, confidentiality, and custody

Who consents to treatment

A person reaches the age of majority in Pennsylvania at eighteen. Until then, a parent or legal guardian consents to medical and mental health treatment, with the statutory exceptions below. The Minors' Consent Act also lets a minor who has graduated from high school, has married, or has been pregnant consent to medical, dental, and health services generally (35 P.S. § 10101), and lets any minor consent to care for pregnancy and for reportable diseases (§ 10103).

Mental health treatment has its own framework. Act 65 of 2020 rewrote the minor-consent rules for mental health care, replacing Act 147 of 2004, and the Department of Human Services issued a bulletin (OMHSAS-23-01) explaining it. Older summaries that describe Act 147 are out of date.

Outpatient mental health treatment: 35 P.S. § 10101.1

For a minor who is fourteen or older and under eighteen, the rules are:

• The minor may consent to outpatient mental health examination and treatment on their own. Parental consent is not required, and the parent is not entitled to be told that treatment has begun unless the minor agrees in writing.
• A parent or legal guardian may also consent to outpatient treatment on the minor's behalf, and the minor's agreement is not required.
• One consent is sufficient without the other. A minor cannot cancel a consent the parent gave, and a parent cannot cancel a consent the minor gave. Either can withdraw their own consent at any time, and if one withdraws, the other's consent keeps treatment going.
• Neither the statute nor the bulletin provides a mechanism for a parent to object to outpatient treatment the minor consented to, or the reverse.

For a minor under fourteen, the parent or guardian consents.

The statute speaks of examination and treatment and does not carve out medication the way some states do. Whether a prescriber will start a psychotropic medication on a fourteen-year-old's consent alone is a matter of institutional policy and clinical judgment; the law does not forbid it, and in practice most prescribers involve the parent, both for safety and because the parent will be administering it. Treat the minor's independent consent as a way to begin, not as a reason to keep the family out.

Inpatient mental health treatment: 50 P.S. §§ 7201 and 7204

The Mental Health Procedures Act governs voluntary inpatient treatment, as amended by Act 65:

• A minor fourteen or older may consent to voluntary inpatient treatment. The consent must be in writing after the minor has been told about the treatment and their rights (§§ 7201, 7203).
• When the minor consents, the facility director must notify the parent, guardian, or person standing in loco parentis and tell them of their right to object (§ 7204). A parent who objects files a petition in the court of common pleas, and the minor has a right to counsel in that proceeding.
• A parent or guardian may consent to voluntary inpatient treatment of a minor under eighteen on the recommendation of a physician, licensed clinical psychologist, or other mental health professional who has examined the minor, and the minor's agreement is not required.
• As with outpatient care, neither party's consent cancels the other's, and either can withdraw their own.

Involuntary commitment of a minor follows the same Act and is outside the scope of this page.

Who controls the records: 35 P.S. § 10101.2

Act 65 also settled who may authorize release of a minor's mental health records:

• Where the minor consented to treatment, the minor controls release of the records of that treatment, to the extent the law allows, on the same terms a patient controls inpatient records under the Mental Health Procedures Act (50 P.S. § 7111).
• Where the parent consented, the parent may authorize release of the minor's records to the minor's current mental health treatment provider, including records of earlier treatment the parent had consented to. A parent who consents is entitled to the information needed to make that decision: the symptoms and condition being treated, the medications and other treatments proposed, their risks and benefits, and the expected results.
• Outside those situations, the default is that the minor controls release.

HIPAA points the same way. Where a minor lawfully consented to care and no parental consent was required, the minor rather than the parent controls the protected health information for that care (45 CFR 164.502(g)(3)). Psychotherapy notes kept separately have their own protection regardless of who consented. Most clinicians handle the practical question by agreeing 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.

Drug and alcohol treatment: 71 P.S. § 1690.112

A minor who suffers from the use of a controlled or harmful substance may consent to medical care or counseling related to diagnosis or treatment. Parental consent is not required and the minor's consent is as effective as an adult's. Since Act 47 of 2018, a parent or legal guardian may also consent on the minor's behalf notwithstanding the minor's refusal. Records of a program that meets the federal definition are also subject to the federal confidentiality rules for substance use treatment (42 CFR Part 2), which require the patient's consent for most disclosures.

Divorced or separated parents

Pennsylvania custody law (23 Pa.C.S. Chapter 53) separates legal custody from physical custody. Legal custody is the right to make major decisions for the child, including medical decisions, and a court may award it to one parent (sole) or to both (shared) (§ 5322). Three practical rules follow:

• Ask for the custody order when the family is separated. If legal custody is sole, 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 that 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 of any kind carries access to records. Under § 5336, a party granted any form of custody is entitled to the child's medical, dental, religious, and school records unless a court has restricted that access, for example under a protection order. 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 fourteen-year-old's right to consent to outpatient treatment under Act 65 does not depend on which parent has custody.

When the minor is at risk

Duty to warn or protect. Pennsylvania has no duty-to-warn statute; the duty comes from Emerich v. Philadelphia Center for Human Development (Pa. 1998). A mental health professional owes a duty to warn a third party when the patient has communicated a specific and immediate threat of serious bodily injury against a specifically identified or readily identifiable victim, and the professional determines, or should determine under the standards of the profession, that the patient presents a serious danger of violence to that person. In Maas v. UPMC (Pa. 2020) the Court held that a threat against an unnamed neighbor could satisfy the readily-identifiable requirement. The duty is discharged by reasonable steps, which may include warning the intended victim and notifying law enforcement. Generalized hostility without an identifiable victim does not trigger it.

Mandated reporting. Under 23 Pa.C.S. § 6311, physicians, psychologists, nurses, licensed counselors, social workers, school employees, and other listed professionals must make a report when they have reasonable cause to suspect that a child is a victim of child abuse. The duty is individual and is not excused by privilege (§ 6311.1). Reports go to ChildLine at 1-800-932-0313 or through the Child Welfare Portal, with a written report to follow an oral one within 48 hours (§ 6313). Pennsylvania requires mandated-reporter training for licensure renewal (Act 31), and the training is the best current summary of the categories of abuse and the reporting mechanics.

Hospitalization. See the inpatient section above. A parent may consent to voluntary admission of a minor of any age; a minor fourteen or older may also consent on their own, with notice to the parent.

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.