Confidentiality

Elements of confidentiality that are taken for granted in work with adult patients are more complicated in work with children because the rights assured adults do not necessarily apply to children. Information is often shared with parents or legal guardians who authorize treatment, and they are generally also authorized to waive confidentiality and to give permission for release of information. In the hospital setting, issues are further complicated by the fact that the consultant has a professional relationship with the pediatric team and is expected to share information and opinions with other individuals involved in the patient's care.

This team relationship should be explicitly defined from the beginning to clarify how information obtained in the psychiatric consultation will be used, including potential limits on confidentiality in the hospital setting. The clarification is an important first step when developing a treatment relationship to avoid potential misunderstandings and disruptions in alliance. The team relationship does not exempt the psychiatric consultant from protecting confidential information that does not need to be disclosed and that is not immediately relevant to the patient's medical care. Although a child's parents or legal guardians are entitled to the access of some personal information to help them make treatment decisions, the older child has some independent rights to confidentiality that must be considered (e.g., for birth control and contraception or for HIV testing and results).

Release of Information to Parents

Parents often expect full access to information regarding their child's treatment. This expectation is usually met with regard to medical treatment. Mature and emancipated minors, however, may consent to their own treatment; if they do so, any clinical information is confidential and may not be shared with the parent or guardian without the minor's authorization, absent a danger to the minor's life or limb. If this exception to confidentiality arises, and the medical care provider believes that sharing is essential, he or she should notify the minor of this decision and take reasonable steps to support the patient during and after disclosure. Without a danger to life or limb, all clinically relevant information documented in the emancipated or mature minor's chart should be withheld despite a parent's request for access.

Information obtained by a mental health consultant may be of a delicate nature, and disclosure to parents may complicate the therapist-child relationship and potentially jeopardize the child's treatment. Consultants should discuss these issues with both the child and the parents prior to treatment and stipulate which types of information may be released (e.g., evidence of dangerousness) and which will be protected. This type of conversation can clarify expectations and inform all parties about the terms of the treatment.

Further issues arise when a patient's parents are divorced or separated. Generally, the parent with le gal custody retains the legal rights regarding access to information and authority to disclose this information. However, many jurisdictions have granted similar rights to the noncustodial parent. When the noncustodial parent has visitation rights, the physician should provide this parent with any information regarding the treatment necessary to ensure the child's safety. If a noncustodial parent lacks legal access to protected health information, a care provider may have to obtain consent for the release of this information from the parent who has legal custody.

Adolescents have greater authority regarding the release of information, particularly regarding issues of sexual behavior and substance abuse. Many jurisdictions link the ability to consent to treatment with the authority to release information, so that the adolescent who is competent to consent to treatment has the right to protect information that emerges in the course of that treatment. Other jurisdictions require the consent of both the parent and the adolescent to disclose confidential information once the adolescent has reached a certain age. If the adolescent cannot consent to treatment, the consultant should discuss the disclosure rules with both the patient and the parents.

The mental health consultant is also bound by legal and ethical codes. The consultant who fails to disclose information that would allow the parents to protect the child may be held liable if the child is harmed. The consultant's decision to maintain adolescent confidentiality or disclose risk-taking behaviors to a parent is often a difficult one. For example, if a teen is drinking or smoking marijuana without the parents' knowledge, he or she may accuse the care provider of a privacy violation if the parents are informed. Such sharing may also lessen the likelihood of honest communication between the patient and therapist, undermine the therapeutic relationship, or cause the patient to withdraw. If, however, the patient's life or limb is in danger, or the behavior and its consequences are serious and predictable, the parent needs to be informed and the patient notified. Jurisdictions generally permit disclosure if the child's safety is at risk. The consultant should always attempt to work therapeutically to encourage the child to disclose relevant information to parents.

Release of Information to Third Parties

In many jurisdictions, a person must be age 18 or older to authorize release of his or her medical record. Authority for release of information to schools, insurance companies, and researchers nor mally lies with the custodial parents or legal guardians of minors, except when the patient is emancipated or mature.

Oral consent may be adequate in the following situations:

• For potential emergencies when a delay of action until written consent is obtained would place the health or safety of a child in danger

• For disclosure of information to providers within the same institution (but institutional quality assurance proceedings should ensure that information is not carelessly shared with individuals within the hospital who are not involved in the patient's care, because access within a facility generally requires an administrative or clinical "need to know")

• Within academic institutions (but efforts should be made to protect a patient's identity during nonclinical case discussions)

• For disclosure of information to family members

As a general rule, written consent should be obtained before releasing information to third parties to clarify to all parties that voluntary and knowledgeable consent has indeed been given and to ensure that documentation exists in the chart. Consultants must ensure that the consent form qualifies the nature and extent of the information that may be released and that it complies with state statutes. Consultants should also be aware of the time frame during which a signed consent form remains valid, because the consent may need to be renewed after this time frame expires.

Specific sections of the consent form may describe how the information can be used and may allow the consenting party to examine any disclosed information. Before information is released, consultants should establish that the child and the parents have given fully informed consent by describing the nature of information that has been requested and what information will be released. If a consultant believes that the patient or parents would not have consented to the release of information to third parties (e.g., schools or insurance companies), it may be necessary for the consultant to obtain another consent or a new consent from the family. The consultant should review specific state statutes concerning access to information. For example, in certain jurisdictions, a school system paying for an independent educational assessment is entitled to access regardless of parental wishes. In many states, an insurance carrier has a legal right of access to clinical information that is relevant to coverage and reimbursement.

Many jurisdictions have statutes that govern the handling and protection of medical information and records. Violations of these rules place the treating clinician and institution at risk of a lawsuit or fine. The consultant should carefully monitor the information that is released to ensure that the disclosure does not harm the child.

Exceptions to Confidentiality

Emergencies. In an emergency situation, if parents are unavailable to provide consent, clinicians may disclose relevant and appropriate data in the best interests of the patient when the immediate welfare of the patient is clearly at stake. Care providers should document in the patient's chart all outreach efforts to contact the family.

Child abuse reporting. Medical professionals who identify or have reasonable cause to suspect child abuse are mandated to report this information to the appropriate child protection agencies. Each jurisdiction or state has a list of professionals (e.g., physicians, mental health practitioners, teachers) who must disclose child abuse. Child abuse reports from "mandated reporters" usually need to be made within 24-48 hours. All jurisdictions have statutes in place to provide immunity from civil liability for clinicians who are required to report concerns.

Before starting an assessment or treatment, mental health consultants should generally inform patients and families that they have a mandate to report child abuse. Consultants must be familiar with the definition of abuse or neglect in his or her jurisdiction. Clinical information regarding abuse or neglect may not be shared with third parties, other than state child protection agencies, unless an imminent and serious risk of harm exists. For example, in many jurisdictions, if a parent suspected of abuse or neglect explicitly refuses to allow the clinician to speak with parties outside the hospital who might be able to shed some light or provide collateral information about the family, this prohibition must be respected. The parent's refusal, however, may be construed as further evidence of protective concerns that should be reported.

Reporting obligations may vary based on who perpetrated the abuse. Some jurisdictions require a report only if a parent, legal guardian, or person with caretaking authority perpetrated or tolerated the abuse. Most states require reporting for any suspi cion or reasonable belief of abuse or neglect. Corporal punishment may be viewed differently depending on the jurisdiction. The reporting obligation can also be limited to those health care providers who have had professional or clinical interactions with the child. If abuse is suspected but a report is not made, the reasons for this decision must be documented. Because most jurisdictions have a sanction for not reporting and immunity for a false allegation, the consultant should take the legally prudent course and report to protective services if in doubt about the mandate to do so.

The consultant may report consensual sexual activity if he or she learns of a significant age disparity between the two individuals concerned or if the minor is below the legal age of consent. Each jurisdiction has specific laws regarding permissible age disparities, statutory rape, and the circumstances that trigger a mandatory report to the child abuse authorities. Sexual activity by a minor may also need to be reported if the consultant believes that the patient was coerced or intimidated into the activity, regardless of whether the minor describes the activity as consensual. In many states, a minor under age 16 cannot legally consent to sexual activity. Apart from any legal requirements, the care provider must consider the nature and extent of harm to the patient and the interventions that might potentially benefit his or her health and safety.

Jurisdictions may have reporting requirements that include notification regarding infectious diseases or disorders that could impair driving. These statutes may include substance abuse and emotional disorders that can potentially impair motor skills. Some laws authorize or require health care providers to breach confidentiality to issue warnings about certain dangers posed by a patient. Consultants may be required to disclose information that suggests that a patient may endanger self or risk the life or safety of another person, and they can be held legally liable for failure to do so. Similarly, patients who disclose thoughts or plans regarding suicidality lose their right to confidentiality and may face civil commitment procedures for involuntary hospitalization.

Custody Disputes

When the parents of a patient separate or divorce during the child's treatment, one or both parents may request a consultant's assistance in the custody hearing. Legal rules may prevent this testimony from being admitted in court, but even when it is le gally allowable, the consultant should avoid allying with one of the parents because of the risk of jeopardizing the child's mental health treatment. Independent custody evaluations are preferable in these situations.

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