Now is the time for California healthcare providers working with minors to consider updating any policies or training on minor consent for mental health treatment or counseling on an outpatient basis and residential shelter services as changes to the state law take effect July 1, 2024, including its related impact on minor patient privacy rights.

On October 7 2023, Governor Gavin Newsom approved Assembly Bill 665 (AB 665), which serves the purpose of aligning existing laws, Family Code § 6924 and Health and Safety Code § 124260, related to minor consent for mental health treatment or counseling on an outpatient basis and residential shelter services. Formal alignment and the changes being made to the law for minor consent take effect July 1, 2024.

Currently, Family Code § 6924 provides:

• (b) A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if both of the following requirements 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 (A) would present a danger of serious physical or mental harm to self or to others without the mental health treatment or counseling or residential shelter services, or (B) is the alleged victim of incest or child abuse.

In contrast, Health and Safety Code § 124260 currently provides:

• (b)(1) . . . a minor who is 12 years of age or older may consent to mental health treatment or counseling services if, in the opinion of the attending professional person, the minor is mature enough to participate intelligently in the mental health treatment or counseling services.

Both statutes relate to minor mental health treatment or counseling. Health and Safety Code § 124260 with regard to assessing a minor’s capacity to consent to treatment, however, does not require the minor to present a danger of serious physical or mental harm to self or to others absent the treatment or to be a victim of incest or child abuse. The minor simply must be at least 12 years of age and in the opinion of the attending professional person have the maturity to participate in their own treatment.

AB 665 seeks to rectify this statutory inconsistency and revise Family Code § 6924 to mirror the consent requirements of Health and Safety Code § 124260. Thus, effective July 1, 2024, Family Code § 6924 subdivision (b) will read, “A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if the minor, in the opinion of the attending professional person, is mature enough to participate intelligently in the outpatient services or residential shelter services.”

While the change is a logical alignment of the laws to correct inconsistent statutes and further provides welcome clarity for providers on minor consent, the change also impacts how providers must consider patient privacy laws such as the Health Insurance Portability and Accountability Act (HIPAA) with regard to the use and disclosure of a minor’s protected health information.

As a reminder, HIPAA does not permit a covered entity healthcare provider to disclose the minor’s protected health information to a minor’s personal representative (e.g., parent or legal guardian) in certain circumstances. These circumstances include, but are not limited to, minor consent for treatment when certain criteria are met.

The HIPAA Privacy Rule provides that the parent or guardian cannot act as the unemancipated minor’s personal representative when: (1) a minor consents to their own care, (2) the applicable state law does not require the parent or legal guardian to consent for that care, and (3) the minor has not requested that such parent or legal guardian be treated as a personal representative of the minor. In these circumstances, the unemancipated minor has the authority to act as the individual under HIPAA. As a minor can consent to their own mental health treatment or counseling on an outpatient basis or to residential shelter services under Family Code § 6924, the related protected health information generally, therefore, may not be disclosed to the parent or legal guardian with some limited exceptions.

With two months before AB 665 takes effect, now is a good time for providers to review policies and practices related to minor consent for mental health treatment or counseling on an outpatient basis and residential shelter services and related implications of patient privacy laws.