BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          SB 543
          Senator Leno
          As Introduced
          Hearing Date: May 5, 2009
          Family Code
          KB:jd
                    

                                        SUBJECT
                                           
                     Minors: Consent to Mental Health Treatment

                                      DESCRIPTION  

          This bill would authorize a minor who is 12 years of age or  
          older to consent to mental health treatment or counseling on an  
          outpatient basis or to residential shelter services, if the  
          following conditions are satisfied: (1) the minor, in the  
          opinion of the attending professional person, is mature enough  
          to participate intelligently in the outpatient services or  
          residential shelter services; or (2) the minor presents a danger  
          of serious physical or mental harm to himself or herself, or  
          others, without the treatment or counseling; or (3) is the  
          alleged victim of incest or child abuse. 

                                      BACKGROUND  

          In 2004, California voters passed Proposition 63, the Mental  
          Health Services Act (MHSA), which provides increased funding,  
          personnel, and other resources to support county mental health  
          programs and monitor progress toward statewide goals for  
          children, adolescent youth, adults, and families.  The MHSA  
          imposed a 1 percent income tax on personal income in excess of  
          $1 million.  

          Community stakeholders groups consisting of consumers, families,  
          and service organizations have met to identify barriers to  
          consumer populations not only for MHSA programs, but for all  
          mental health services.  This bill seeks to address the  
          identified barrier of parental consent for youth seeking mental  
          health services.    
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                                CHANGES TO EXISTING LAW
           
           Existing law  authorizes a minor who is 12 years of age or older  
          to consent to mental health treatment or counseling, except as  
          specified, on an outpatient basis, or to residential shelter  
          services, if two circumstances are satisfied.  First, the minor,  
          in the opinion of the attending professional person, must be  
          mature enough to participate intelligently in the outpatient  
          services or residential shelter services.  Second, the minor  
          must present a danger of serious physical or mental harm to  
          himself or herself, or others, without the treatment or  
          counseling, or be the alleged victim of incest or child abuse.   
          (Fam. Code Sec. 6924.)

           Existing law  requires that a professional person offering  
          residential shelter services make his or her best efforts to  
          notify the parent or guardian of the provision of those  
          services.  (Fam. Code Sec. 6924.)

           Existing law  provides that the mental health treatment or  
          counseling of a minor must include the involvement of the  
          minor's parent or guardian unless, in the opinion of the  
          professional person who is treating or counseling the minor, the  
          involvement would be inappropriate.  (Fam. Code Sec. 6924.)

           This bill  would instead authorize a minor who is 12 years of age  
          or older to consent to mental health treatment or counseling,  
          except as specified, on an outpatient basis, or to residential  
          shelter services, if either of these conditions are satisfied:  
          (1) the minor, in the opinion of the attending professional  
          person, is mature enough to participate intelligently in the  
          outpatient services or residential shelter services; (2) the  
          minor presents a danger of serious physical or mental harm to  
          himself or herself, or others, without the treatment or  
          counseling; or (3) the minor is the alleged victim of incest or  
          child abuse.  

           This bill  would delete the requirement that a professional  
          person offering residential shelter services make his or her  
          best efforts to notify the parent or guardian of the provision  
          of those services.  

           This bill  would require that the mental health treatment or  
          counseling of a minor include the involvement of the minor's  
          parent or guardian if appropriate, as determined by the  
                                                                      



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          professional person or treatment facility treating the minor.

                                        COMMENT
           
              1.   Stated need for the bill

           According to the author, parental consent for mental health  
          services can create a barrier, especially in prevention and  
          early intervention programs where the youth may not be  
          experiencing serious physical or mental harm.  The author  
          asserts that this barrier is especially harmful to certain  
          populations of youth including: lesbian, gay, bisexual, and  
          transgender (LGBT) youth, youth from abusive or neglectful  
          homes, youth from immigrant families, homeless youth, and youth  
          whose cultural backgrounds do not condone mental health  
          services.  The author states that SB 543 would help ensure that  
          youth do not have to wait until their mental health  
          deteriorates, and their safety is compromised by suicide,  
          substance abuse, or violence to receive services.

           2.Precedent in the law allowing minors to access services  
            without parental consent; clarity needed regarding minors'  
            maturity 

           Under current law minors are allowed to seek certain services  
          without the consent of their parent or guardians.  For example,  
          a minor may consent to medical care for the prevention or  
          treatment of a pregnancy (Fam. Code Sec. 6925); treatment of  
          communicable diseases (Fam. Code Sec. 6926); medical care  
          relating to rape or sexual assault (Fam. Code Secs. 6927-6928);  
          and medical care and counseling relating to the treatment of a  
          drug or alcohol related problem (Fam. Code Sec. 6929).  Thus,  
          there is precedent in the law which makes exceptions to the  
          general requirement that minors must have parental consent when  
          receiving certain medical treatment or counseling.  These  
          exceptions have generally been made when there is a compelling  
          public policy rationale for making services and treatments more  
          accessible to minors, and where the requirement of parental  
          consent would deter minors from otherwise seeking these  
          services.  

          In limited circumstances, minors age 12-17 may currently consent  
          to mental health treatment or counseling without parental  
          involvement.  The minor must be mature enough to participate  
          intelligently in the treatment or counseling, and present a  
          danger of serious physical or mental harm to self or others, or  
                                                                      



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          be the alleged victim of incest or child abuse.  (Fam. Code Sec.  
          6924.)  This exception to the general requirement of parental  
          consent is much narrower in scope than the ones outlined above.   


          This bill, relying on the precedent in current law, seeks to  
          allow minors to consent to mental health treatment if the  
          attending professional believes the youth is mature enough to  
          participate intelligently in the services.  Accessibility to  
          mental health treatment or counseling can be critical to youth  
          who are struggling with difficult, emotionally-damaging life  
          circumstances.  Early intervention, evaluation, and counseling  
          can make a crucial difference in the mental well-being of a  
          minor.  It seems at odds with the public policy of our state to  
          require minors to reach a state of crisis before allowing them  
          to seek treatment without the consent of their parents,  
          especially when the parents themselves may be contributing to  
          the minor's mental distress.  Allowing minors who are mature  
          enough to engage intelligently in treatment and counseling seems  
          consistent with the other exceptions the Legislature has already  
          made in statute for minors to seek services vital to maintaining  
          their health and well-being.    

          The current version of the bill is unclear as to whether minors  
          who pose a danger to themselves or others, or are the alleged  
          victims of abuse, would be able to consent to treatment  
          regardless of whether they are mature enough to participate  
          intelligently in the services.  If a minor is not mature enough  
          to actually be able to participate intelligently, then public  
          policy is seemingly not well served by allowing the minor to  
          consent to mental health treatment, especially since parents or  
          guardians would not be notified of the provision of these  
          services.  If parental involvement is to be minimized, then  
          professionals providing the services should ensure that the  
          minors are mature enough to engage in the counseling.  
          The following amendment would clarify the standards for when a  
          minor may consent to mental health treatment:

          On page 3, line 29, after "abuse" insert:

          ", and the minor, in the opinion of the attending professional  
          person, is mature enough to participate intelligently in the  
          outpatient services or residential shelter services."     

              3.   Suggested amendment to clarify parental notification  
               requirement
                                                                      



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          The current version of the bill would delete the requirement  
          that a professional person offering residential shelter services  
          make his or her best efforts to notify the parent or guardian of  
          the provision of those services.  Concerns were expressed that  
          deleting this requirement would result in minors simply not  
          showing up at home, and parents having no knowledge of their  
          children's whereabouts.  

          According to the sponsor, the intent of this bill is not to  
          delete the notification requirement when minors actually check  
          into a residential shelter service.  Rather, the intent was to  
          maintain the confidentiality of any outpatient treatment or  
          counseling services a minor may receive at a residential  
          shelter.  For example, if a minor drops into a residential  
          shelter for a counseling session, parental notification would  
          not be required in that instance.  In contrast, if a minor  
          checks into and stays at a residential shelter, then the  
          professional offering those services would be required to make  
          best efforts to notify the minor's parent or guardian.  

          The following amendment would clarify when parental notification  
          is required in these circumstances.

          On page 3, line 29, after the period insert: 

          "(c) A professional person offering residential shelter services  
          whether as an individual or as a representative of an entity  
          specified in paragraph (3) of subdivision (a), shall make his or  
          her best efforts to notify the parent or guardian of the  
          provision of services.  

          (d)  Notwithstanding subdivision (c), notification of a minor's  
          parent or guardian shall not be required when the minor is  
          receiving outpatient mental health treatment or counseling  
          services.

          On page 3, line 35, strike "(c)" and insert "(e)."

          On page 4, line 7, strike "(e)" and insert "(f)"

          On page 4, line 15, strike "(f)" and insert "(g)"   

          This would ensure that minors are able to seek confidential  
          mental health services on an outpatient basis, and that parents  
          are notified in the event that a minor begins to receive  
                                                                      



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          residential services.

              4.   This bill would reverse the presumption for parental  
               involvement

           Under current law, the mental health treatment or counseling of  
          a minor shall include involvement of the minor's parent or  
          guardian unless, in the opinion of the professional person who  
          is treating or counseling the minor, the involvement would be  
          inappropriate.  (Fam. Code Sec. 6924.)  This bill would only  
          require involvement of the minor's parent if the professional  
          person determines that it is appropriate.  The reversal of the  
          presumption of parental involvement is seemingly intended to  
          ensure that minors are able to receive confidential services  
          without fear of required parental involvement.  However, the  
          requirement that the professional person offering the minor  
          services determine that parental involvement would be  
          inappropriate is not an unduly burdensome standard, and provides  
          enough flexibility to allow minors to receive confidential  
          treatment or counseling when necessary.  If minors are going to  
          be allowed to consent to mental health treatment and residential  
          shelter services, the default standard should favor parental  
          involvement unless the involvement would be inappropriate.   
          Accordingly, this committee may wish to consider whether  
          reversal of the current presumption for parental involvement is  
          warranted.  

          The committee may also wish to consider whether the bill should  
          specify that a professional person shall consult the minor in  
          making a determination as to the propriety of including parents  
          or guardians in the counseling.  Arguably, professional persons  
          should already be consulting minors in order to obtain all of  
          the information they need to make an informed decision with  
          respect to parental involvement.   
           
          The following amendment would change the presumption for  
          parental involvement back to existing law, and provide that  
          minors should be consulted when professionals are making these  
          decisions:

           On page 3, line 37, after "guardian" insert: 

          "unless the professional person who is treating or counseling  
          the minor, after consulting with the minor, determines that the  
          involvement would be inappropriate"

                                                                      



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          On page 3, line 39 strike "if appropriate, as determined by the  
          professional"

          On page 4, line 40 strike "person or treatment facility treating  
          the minor"

              5.   Suggested amendments to existing list of professional  
               persons

           Under existing law, the chief administrator of an agency that  
          offers mental health treatment or counseling on a outpatient  
          basis, or residential shelter services is considered a  
          "professional person" authorized to make decisions with respect  
          to a minor's mental health treatment or counseling.  (Fam. Code  
          Sec. 6924.)  However, existing law does not require that an  
          agency administrator actually be licensed in order to provide  
          mental health treatment to minors.  Individuals who are not  
          licensed should not be providing mental health treatment or  
          counseling to minors.  This committee may wish to consider  
          whether existing law should be amended to specify that agency  
          administrators shall not provide mental health treatment or  
          counseling unless they are licensed to do so. 

          The amendment would be as follows:

          On page 3, line 2, after the period insert:
           "However, a chief administrator may only provide mental health  
          treatment or counseling to a minor if he or she is one of the  
          licensed professionals enumerated in subdivision (A) - (F)."

          In addition, the list of enumerated "professional persons" in  
          existing law does not include licensed clinical social workers.   
          Licensed clinical social workers are regulated under the  
          Business and Professions Code and are qualified to offer mental  
          health treatment and counseling.  As such, this committee may  
          wish to consider whether licensed clinical social workers should  
          be specified in the existing list of professionals enumerated in  
          statute.

          The amendment would be as follows:

          On page 2, line 29, after the period insert:

          (F) A licensed clinical social worker as defined in Chapter 14  
          (commencing with Section 4991) of Division 2 of the Business and  
          Professions Code. 
                                                                      



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          On page 3, line 1 strike "(F)" and insert "(G)"

          On page 3, line 3 strike "(G)" and insert "(H)"

              6.   Opposition
           
          The National Association of Mental Illness (NAMI) California is  
          generally supportive of allowing children 12 and older to  
          consent to mental health treatment or counseling on an  
          outpatient basis, or consent to residential shelter services  
          without a finding that the minor would present a danger or is a  
          victim of incest or child abuse.  NAMI feels that it would be a  
          positive change because it would allow treatment, counseling, or  
          residential shelter services before the minor reaches a crisis  
          point.  However, NAMI is opposed to three separate provisions in  
          the bill.

          First, NAMI is opposed to the deletion of the requirement that a  
          professional person offering residential shelter services make  
          his or her best efforts to notify the parent or guardian of the  
          provision of those services.  NAMI states that even in  
          situations where it is appropriate for the child to be out of  
          the family home, the parents should still be notified where  
          their child is.  As discussed in Comment 3, the bill is not  
          intended to eliminate this requirement, but only to make an  
          exception in instances where a minor is receiving mental health  
          treatment or counseling on an outpatient basis at a residential  
          shelter.  The suggested amendment in Comment 3 would clarify  
          when notification is required.  

          Second, NAMI is opposed to the reversal of the presumption for  
          parental involvement.  Specifically, NAMI states:

           This amendment could result in families being excluded from  
            participation in their children's treatment in many more  
            cases.  NAMI believes any presumption concerning whether a  
            family should be involved in a child's treatment should favor  
            the family.  We perceive no reason why it is too great of a  
            burden for a professional therapist or counselor to make the  
            requisite finding in order to exclude the family.  It should  
            be a rare case in which a professional person would not want  
            to involve the people who know most about the child.

         The suggested amendment in Comment 4 would likely address these  
            concerns.
                                                                      



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          Third, NAMI proposes that the definition of "professional  
          person" in existing law should be amended to delete agency  
          administrators and interns.  NAMI asserts that agency  
          administrators and interns are not "professional persons" in the  
          usual sense, and do not have a professional license of any kind.  
           Committee staff notes that existing law requires marriage and  
          family therapist registered interns who render mental health  
          treatment or counseling to minors to work under the supervision  
          of a licensed mental health professional.  

          The suggested amendment in Comment 5 with respect to agency  
          administrator would likely address this concern.


           Support  :  Children's Law Center of Los Angeles; California  
          Association of Marriage and Family Therapists; San Francisco  
          Family and Child Guidance Clinic; California Youth Empowerment  
          Network; Mental Health America of Northern California;  
          Disability Rights California (if amended); California  
          Communities United Institute; one individual

           Opposition  :NAMI California
           





                                       HISTORY  

           Source  :  National Association of Social Workers; Mental Health  
          America of Northern California; Equality California; GSA Network

           Related Pending Legislation  :  None Known

           Prior Legislation  :  None Known

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