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.
(more)
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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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