ADVOCATES FOR YOUTH

Issues at a Glance

Adolescent Access to Confidential Health Services

Few things are more personal than information about our bodies and our health. The information patients share with their health care provider is often sensitive, even embarrassing. Patients expect that it will be kept private. If that privacy is not guaranteed, they may be reluctant to seek care or treatment.

Confidentiality is also important for health care providers. To deliver accurate diagnosis and treatment, the provider must have all relevant information from the patient. If the patient fears that such information will be made public, s/he may not divulge all the necessary facts.

Confidential health services are essential in promoting teens' health. Adolescents are at a critical stage of development, both physically and emotionally, and are beginning to establish their own identity and autonomy. Teens experiencing depression, rage, suicidal thoughts, sexually transmitted disease (STD), pregnancy, or sexual abuse may pose a grave danger to themselves or those around them. A health care professional can help enormously by encouraging screening and treatment.

The health care provider's duty of confidentiality becomes complicated when the interests of an adolescent's parents or guardian must be factored into the provider-patient relationship. The parents' financial responsibility for, and guiding role in, raising their children and the state's interest in protecting family autonomy are concerns the health care provider must respect. Health care providers must also balance parents' and minors' interests while keeping in mind laws that govern confidentiality and that mandate parental notification.

Surveys show that most adolescents will seek routine medical care with their parents' knowledge.¹ Making parental involvement or notification mandatory, however, drastically affects adolescent decision-making, and reduces the likelihood that teens will seek timely treatment. In a regional survey of suburban adolescents:

• Only 45 percent of adolescents surveyed would seek care for depression if parental notification was required; and
• Less than 20 percent would seek care related to birth control, STDs, or drug use if parental notice was mandated.² A teen, struggling with concerns over sexual health or drug and alcohol abuse, may be reluctant to share concerns with a parent for fear of embarrassment, disapproval, or violence. A parent or relative may be the cause or focus of the teen's emotional or physical problems. Additionally, some teens wish to have their confidentiality protected because they value their privacy and autonomy. The guarantees of confidentiality, and the adolescent's awareness of this guarantee, are essential in helping teens seek needed care.

Physicians Care About Confidentiality

Physicians strongly support adolescents' access to confidential health services. A 1987 American Medical Association (AMA) survey found that physicians were even more likely than the general public to favor confidentiality for adolescent patients.¹ For example, pediatricians described confidentiality as essential to obtaining necessary and factual information from their adolescent patients. A regional survey of pediatricians showed strong support of confidential health services for adolescents:

• Of the physicians surveyed, 75 percent favored confidential treatment for adolescents.
• Forty-five percent unconditionally favored confidential treatment of adolescents, even when it meant withholding information from parents.³

Many influential health care organizations support the provision of confidential health services for adolescents:

• The American Medical Association
  " The AMA reaffirms that confidential care for adolescents is critical to improving their health…The AMA encourages physicians to involve parents in the medical care of the adolescent patient, when it would be in the best interest of the adolescent. When, in the opinion of the physician, parental involvement would not be beneficial, parental consent or notification should not be a barrier to care."⁴
• The American Academy of Pediatrics
  "A general policy guaranteeing confidentiality for the teenager except in life-threatening situations should be clearly stated to the parent and the adolescent at the initiation of the professional relationship, either verbally or in writing."⁴
• American College of Physicians
  " Physicians should be knowledgeable about state laws governing the rights of adolescent patients to confidentiality and the adolescent's legal right to consent to treatment…The physician must not release information without the parent's consent, unless required by the law or if there is a duty to warn another."⁴
• The American Public Health Association
  " The American Public Health Association urges that…confidential health services [be] tailored to the needs of adolescents, including sexually active adolescents, adolescents considering sexual intercourse, and those seeking information, counseling, or services related to preventing, continuing or terminating a pregnancy…."⁴

Legal Sources for the Confidentiality Requirement

Health care providers have the highest degree of legal obligation to protect the confidentiality of their patients.⁵ For example, in Colorado, a physician who violates a patient's confidentiality is subject to disciplinary action, including license revocations.⁶ Other states mandate that health records must be kept confidential and cannot be released without the patient's consent.⁷

Regulations governing federally funded health programs, such as Medicaid,⁸ Maternal and Child Health Block Grants,⁹ and Title X¹⁰ include confidentiality clauses. In addition, in 1995, members of the 104th Congress moved to codify the right to confidentiality by introducing a bill guaranteeing the confidentiality of patient health care records.¹¹

Minor's Confidentiality and Parental Notification

The issues surrounding confidentiality for minors are not covered comprehensively in the myriad state and federal statutes and regulations.¹² Many states, however, have laws mandating that parents be notified of specific treatments or diagnoses given to minors.

Parental notification laws contain a variety of standards for disclosure of information by health care providers. In some cases, the provider has discretion whether to notify the parent of a minor's treatment.¹³ A few states allow disclosure of medical information to parents or guardians without the consent—and over the specific objection of—the minor patient.¹⁴ Other states provide guidance to health care providers for when a minor's medical information may be disclosed.¹⁵

These laws elevate the interests of the parent or guardian above those of the adolescent patient. By making a minor's health information available to the parent, the laws may well discourage teens from seeking needed care. An adolescent with a sexually-transmitted disease, for instance, may forego treatment rather than risk a parent's embarrassment, disapproval, or violence. Many teens live in dysfunctional family environments, and parental involvement laws cannot transform these families into stable homes. As a Justice of the California Supreme Court has noted, "Not every pregnant adolescent has parents out of the comforting and idyllic world of Norman Rockwell."¹⁶

Protecting Minor's Confidentiality to Promote Adolescent Health

Recognizing that reality, many states have statutes to protect teen confidentiality for specific services— particularly reproductive and sexual health, mental health, and drug and alcohol treatment. Protecting adolescent confidentiality for these services encourages teens to seek treatment for conditions that they may want to keep private from parents. Nothing in these statutes prevents teens from involving parents in health care decision-making, which most adolescents do.¹

Similar protections are guaranteed in other states for minors seeking treatment or testing for sexually transmitted diseases¹⁷ or for mental and psychological problems.¹⁸ In situations where parental notification might deter adolescents from seeking these essential health services, states have determined that protecting the minor's confidentiality is more important than promoting parental control and family autonomy.

HIV/AIDS and Confidentiality

People who are HIV-positive, or suspected of being so, often face discrimination, harassment, or violence. A number of states have enacted HIV/AIDS confidentiality statutes to encourage testing and treatment. These laws vary as to what information is protected, to whom it may be disclosed (e.g., schools or parents), and who is covered by the law.¹⁹

In Colorado, for example, a minor may consent to testing and treatment of HIV/AIDS, and that information must be confidential if the adolescent is 16 years of age or older. If the youth is under 16, the health care provider has the option of notifying the adolescent's parent or guardian.²⁰

Contraception and Confidentiality

In 1977, the United States Supreme Court ruled that minors have a constitutionally protected right to privacy with respect to the use of contraceptives.²¹ Slightly less than half the states have laws permitting minors to obtain contraceptives or family planning services without parental consent.¹² Most of these statutes do not address parental notification and, among those that do, parental notification is not mandatory.¹²

A 1983 attempt by the U.S. Department of Health and Human Services to require parental notification by family planning clinics receiving federal Title X funds was enjoined by two federal courts and never enforced.²² Laws which protect confidentiality for adolescents who seek family planning services encourage teens to protect themselves.

Abortion and Confidentiality

In Planned Parenthood v. Casey, the U.S. Supreme Court found that states may impose a parental consent requirement on minors seeking abortion so long as there is a "bypass" procedure available for minors who fear the consequences of seeking parental consent. In its ruling, the Court also recognized that some minors are sufficiently mature to make the decision to terminate a pregnancy. Utilizing the bypass procedure, the minor may petition a judge, or other responsible adult, to provide consent to the abortion procedure on her behalf.

Although the Court has not specifically addressed the constitutionality of parental notification laws, it has stated:

Although our cases have required bypass procedures for parental consent statutes, we have not decided whether parental notice statutes must contain such procedures…It is a corollary to the greater inclusiveness of consent statutes that a bypass procedure that will suffice for a consent statute will suffice also for a notice statute.²³

Courts analyzing parental notification laws, therefore, require that the statutes contain bypass procedures allowing the adolescent to prove that an abortion is in her best interests and that parental notification would not be in her best interests.²⁴ As discussed above, the vast majority of adolescents involve their parents in their lives and health, including abortion decisions.¹ For some, however, mandatory parental involvement may encourage a teen's seeking unhealthy alternatives, such as home or "back alley" abortions.

Policies That Promote Adolescent Confidential Health Services

The AMA's Guidelines for Adolescent Preventive Services (GAPS) recommends that physicians establish policies regarding confidential care for adolescents and parental involvement in that care.²⁵ GAPS also recommends that "[health] services be tailored to the individual and that information shared by the adolescent during the medical visit remain confidential."²⁵

Confidential health services are usually limited by state laws to only those services to which a minor can legally consent. For example, in Maine, a minor can consent to treatment for drug and alcohol abuse or for emotional or psychological problems.¹⁸ By law, where a minor can legally consent to treatment, the minor is afforded the same right to confidentiality as an adult.¹⁸

Laws like these protect adolescents seeking treatment for sensitive health concerns, but they do not guarantee comprehensive confidential health services for teens. Some states continue to allow disclosure of adolescent health information to parents, even over the specific objection of the adolescents.¹⁴

Limiting confidentiality to only the most intimate health issues discourages adolescents from seeking preventive care and counseling before problems occur. To promote adolescent health, providers must be allowed to develop confidential health services programs that are sensitive to the needs of adolescents and their families. When guaranteed confidentiality, adolescents will seek necessary medical care, and most teens will involve their parents in that care. The law should recognize the reality of teen health care and protect the confidentiality of adolescents to ensure their healthy development.

Written by John Loxterman, J.D., July 1997

For further information on adolescent access to confidential health services, call Advocates for Youth, 202.419.3420.

References

1. Gans JE, McManus MA, Newacheck PW. Adolescent Health Care: Use, Costs and Problems of Access. [Profiles of Adolescent Health Series, v. 2]. Chicago, IL: American Medical Association, 1991.
2. Marks A, Malizio J. Hoch J. et al. Assessment of health needs and willingness to utilize health care resources of adolescents in a suburban population. J Pediatr 1983;102:456-460.
3. Resnick MD, Litman TJ, Blum RW. Physicians' attitudes toward confidentiality of treatment for adolescents: findings from the upper Midwest regional survey. J Adolesc Health 1992; 13:616-612.
4. Gans Epner, JE. Policy Compendium on Reproductive Health Issues Affecting Adolescents. Chicago, IL: American Medical Association, 1996.
5. American College of Legal Medicine. Legal Medicine. (1995).
6. COLO. REV. STAT. §2541409(2)(1995).
7. See, e.g., Mull v. String, 448 So.2d 952, 953 (Ala. 1984); MINN. STAT. ANN. §144.335 (1995); OKLA. STAT. ANN. tit. 76, §19 (1996).
8. 45 C.F.R. §5b.6.
9. 42 C.F.R. §51a.6.
10. 42 C.F.R. §59.15
11. United States. Congress. Senate. The Medical Records Confidentiality Act of 1995. S. 1360, 104th Cong, 2d Sess. (1995).
12. United States. Congress. Office of Technology Assessment. Adolescent Health. Vol. III. Cross-cutting Issues in the Delivery of Health and Related Services. Washington, DC: The Office, 1991.
13. E.g., OKLA. STAT. ANN. tit. 63, §2602 (1995).
14. Eg., LA. REV. STAT. ANN. §40:1095 (1995).
15. E.g., MONT. CODE ANN. §41-1-403 (1995).
16. Academy of Pediatrics v. Lungren, 51 Cal. Reporter 201, 224 (1996), rehearing granted, May 22, 1996 (Kennard J. dissenting).
17. E.g. COLO. REV. STAT. §25-1-801(d) (1995).
18. ME. REV. STAT. ANN., tit. 19 §§902, 905 (1995).
19. E.g., ILL. ANN. STAT. ch. 40, para. 2201-1; N.H. REV. STAT. ANN. §141-C:18 (1995); NY. PUB. HEALTH LAW §§2504, 2305, 2306 (McKinney 1995).
20. COLO. REV. STAT. §13-22-103 et seq. (1995).
21. Carey v. Population Services International, 431 U.S. 678 (1977).
22. See, New York v. Heckler, 719 F.2d 1191 (2d. Cir. 1983), and Planned Parenthood Federation of America v. Heckler, 712 F.2d 650 (D.C. Cir. 1983).
23. Ohio v. Akin Center for Reproductive Health, 497 U.S. 502, 510-11, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990).
24. Wicklund, et al. v. Salvangi, 93 F.3d 567, 572 (9th Cir. 1996).
25. American Medical Association. Guidelines for Adolescent Preventive Services. Chicago, IL: The Association, 1992.

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