Virginia: minor consent, confidentiality, and custody

Who consents to treatment

A person reaches the age of majority in Virginia at eighteen (Va. Code § 1-204). A married minor consents as an adult, and a minor sixteen or older may petition the juvenile court for emancipation (§ 16.1-331 and following). Outside those cases, a parent or guardian consents, with the exceptions in § 54.1-2969, which also lets a minor consent to care in an emergency where the parent cannot be reached.

Outpatient mental health treatment at any age: § 54.1-2969(E)

Virginia's rule is short and broad. Under § 54.1-2969(E), a minor is deemed an adult for the purpose of consenting to medical or health services needed for (1) the determination or treatment of venereal disease, (2) birth control, pregnancy, and family planning, (3) outpatient care, treatment, or rehabilitation for substance abuse, and (4) outpatient care, treatment, or rehabilitation for mental illness or emotional disturbance. There is no age floor, no session limit, and no requirement that the clinician be a physician.

Two things follow:

• The parent is not required. A clinician may treat a minor on the minor's own consent. The statute does not require parental notification. It also does not forbid it, and the provider's judgment about involving the family is clinical, not legal; see the records section below for how far that judgment can go.
• Medication. The statute speaks of outpatient care and treatment and does not exclude medication. Most prescribers nonetheless involve the parent, both for safety and because the parent administers it, and institutional policies usually require parental consent for psychotropic medication. Treat the minor's independent consent as a way to begin, not as a reason to keep the family out.

Inpatient treatment: §§ 16.1-338 and 16.1-339

Virginia's inpatient rules turn on the minor's age:

• Under fourteen. The parent consents to admission, after a qualified evaluator finds that the minor appears to have a mental illness serious enough to warrant inpatient treatment and that inpatient treatment is in the minor's best interest (§ 16.1-338).
• Fourteen and older. Admission requires the joint consent of the minor and the parent, with the same evaluation. If the parent later withdraws consent, or the minor fourteen or older objects, the minor must be discharged within forty-eight hours unless continued hospitalization is authorized by a court or the minor is subject to an emergency custody or temporary detention order.
• Objecting minor. Under § 16.1-339, a parent may admit a minor fourteen or older who objects, or who is incapable of making an informed decision, for up to one hundred twenty hours pending a court review, with a qualified evaluator's finding and counsel for the minor.

Emergency custody, temporary detention, and involuntary commitment of minors follow § 16.1-340 and following and are outside the scope of this page.

What a parent is entitled to know

Virginia's records rule is in the custody code and applies to every parent. Under § 20-124.6(A), neither parent, regardless of whether that parent has custody, may be denied access to the academic or health records of their minor child unless a court orders otherwise for good cause. Under § 20-124.6(B), a treating physician, clinical psychologist, clinical social worker, or licensed professional counselor may deny a parent access to the minor's health records where the clinician has made a part of the record a written statement that, in the exercise of professional judgment, disclosure to the parent would be reasonably likely to cause substantial harm to the minor or another person. The denial is reviewable under the health records privacy act (§ 32.1-127.1:03(F)).

So for treatment the minor consented to under § 54.1-2969(E), the parent retains a statutory right of access unless the clinician invokes the harm exception in writing. HIPAA defers to state law here, and Virginia's state law is this one. Decide at the first visit whether the harm exception applies, document it if it does, and tell the adolescent honestly what the parent can and cannot see. Psychotherapy notes kept separately have their own protection under HIPAA.

Divorced or separated parents

Virginia distinguishes legal custody from physical custody. Joint legal custody means both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child, even where physical custody is with one parent (§ 20-124.1). 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.
• Custody does not decide access to records. Section 20-124.6 applies to every parent regardless of custody; only a court order or the clinician's documented harm exception limits it. 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 order.

When the minor is at risk

Duty to protect. Virginia's duty is statutory. Under § 54.1-2400.1, a mental health service provider has a duty to take precautions to protect third parties when a client has orally, in writing, or by sign language communicated to the provider a specific and immediate threat to cause serious bodily injury or death to an identified or readily identifiable person, and the provider reasonably believes, or should believe, that the client has the intent and ability to carry it out. The duty is discharged by seeking involuntary admission, making reasonable efforts to warn the potential victim or a responsible adult for a minor victim, notifying law enforcement, or providing treatment or therapy to the client until the provider reasonably believes the client no longer poses the threat. No duty arises from a threat without an identifiable victim. Document the threat, the assessment, and the steps taken.

Mandated reporting. Under § 63.2-1509, physicians, psychologists, licensed counselors and therapists, social workers, nurses, school personnel, and the other listed persons who, in their professional or official capacity, have reason to suspect that a child is abused or neglected must report immediately, and in no case later than twenty-four hours, to the local department of social services or to the Child Protective Services hotline at 1-800-552-7096. A reporter in an institution may report through the person in charge, who then reports, but the duty remains the reporter's. Failure to report carries a civil penalty, increased for repeat failures; 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.