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Minors requesting privacy restrictions

Compliance Monitor, March 4, 2005

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A: A 15-year-old with a "family planning issue" may have the right to make healthcare decisions on her own, depending upon the nature of the issue and the law of the state in which she resides. As a general rule of thumb, the person who can consent to the treatment in question controls the records of that treatment. Accordingly, if it is a parent who consents, the parent has control over the records of the treatment. Likewise, if it is the minor child who consents, then he or she has control over the records. Some states have what are known as "mature minor" statutes.

In Massachusetts, for example, a minor who is pregnant or believes she is pregnant has the right to make medical decisions for herself (Mass. Gen. L. ch. 112, Section 12F). A child who is designated as a mature minor has the ability to consent to treatment and the right to control the records stemming from that treatment in most circumstances. In a circumstance in which a minor can consent to treatment, a special privacy restriction would not be necessary to prevent parental access. The records would be solely within the control of the child.

Accordingly, when faced with an issue regarding a minor's consent to treatment, consult your counsel and your own state law to determine the applicable rules for when minors can make treatment decisions on their own. HIPAA likely will follow whatever those state law rules are. Visit HHS on the Web to look up HIPAA FAQ #231.

This question was answered by Colin J. Zick, Esq., of Foley Hoag, LLP, in Boston.

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