Maryland mental health laws, until recently, made parents responsible for the care and support of their children, including making decisions regarding their health care. In most cases, that responsibility continues until a child becomes a legal adult at eighteen (or until a court orders otherwise, such as to emancipate a minor or otherwise terminate a parent’s legal custody). Among the many choices parents regularly make for their children’s welfare are medical decisions, including the decision to seek, and receive, mental health treatment for their child. Generally, a minor child cannot receive medical care without a parent’s consent, with some limited exceptions.
One such exception is that older children can seek mental health treatment without a parent’s consent. Under Maryland Code, Health-General § 20-104, a “minor who is 16 years or older has the same capacity as an adult to consent to consultation, diagnosis, and treatment of a mental or emotional disorder by a physician, psychologist, or a clinic.”
As of October 1, 2021, this statute will be amended, dropping the age of consent for Maryland mental health treatment to 12 years old, if the care provider decides that the child is mature enough to consent to treatment. The bill amending the statute passed in both the Maryland Senate and House of Delegates before landing on Gov. Larry Hogan’s desk. While he did not sign the bill, Gov. Hogan declined to veto it, allowing it to become law without his signature.
Maryland State Senator Malcolm Augustine sponsored the bill, noting that half of lifetime cases of mental illness begin by age 14, and that undiagnosed mental illness in children can cause them to drop out of school, engage in behavior that leads to incarceration, or die by suicide.
Supporters of lowering the age of consent for mental health treatment pointed out that access to mental health treatment may blunt the effect of adverse childhood experiences (ACEs) that can lead to health, employment, and relationship problems in adulthood. Amidst the isolation caused by the coronavirus pandemic and the resulting mental health issues, that access is even more critical.
Still other supporters pointed out that abusive family situations may be both a cause of mental health issues in adolescents, and the reason children are uncomfortable asking their parents for treatment or involving them in their treatment plan. In addition, some families, religions, and cultures stigmatize mental illness, leading parents to refuse to seek treatment even for a child who requests and may desperately be in need of it.
Opponents of the bill cited numerous reasons for voting against it. Many argued that it would strip parents of their right to be involved in decisions regarding their child’s health and welfare. Children might seek a mode of treatment, or a therapist, of whom the parents disapproved, and the parents would have limited ability to prevent the treatment. Opponents also argued that the legislation could deprive parents of the opportunity to “work through” issues with a child who would otherwise have had to talk to them in order to pursue treatment.
Another argument against the legislation was that many children under the age of 16 generally lack the capacity to make important decisions regarding their mental health. This was the key reason that the Maryland Psychiatric Society provided for its opposition. Other organizations, including the Maryland Board of Nursing, Maryland Board of Examiners of Psychologists, and Maryland Psychological Association, also opposed the bill for similar reasons. However, overall, mental health professionals were divided with many professionals testifying in favor of amending the statute to lower the age.
Note, this issue has become a very politicized issue and Maryland mental health laws are not the first to change to lower the age of consent for mental health treatment. California, Georgia, Illinois, and West Virginia allow preteens to make their own decisions about mental health treatment; Florida and Washington allow 13-year-old children to make a decision.
In addition to lowering the age to consent to mental health treatment in Maryland from 16 to 12, the revised statute also significantly expands the pool of care providers with whom those young people may consult to include all individuals licensed under Maryland’s “Health Occupations” Article, as well as those individuals operating under a license to “diagnose and treat mental and emotional disorders.”
The increase in the pool of providers with whom a teen or preteen may consult, coupled with the reduction in the age of consent, means that many more children may have access to therapeutic treatments. However, it is important to remember that the care provider must first determine whether a child seeking treatment is mature and capable of giving informed consent. A provider can decline to work with a child deemed not capable of consenting to treatment. Moreover, this presents a problem for professionals because to make such a determination, the professional needs to first get to know the child and have the opportunity to make an assessment.
While §20-104, even prior to amendment, gave 16–18-year-olds the right to consent to treatment for themselves, it did not give them the right to refuse mental health treatment authorized by their parents. It is important to note that the amended statute did not change this provision either, meaning that parents can still consent for their minor children to receive mental health treatment despite the child’s objection.
Many opponents to the legislation based their objections on the premise that parents would be shut out of receiving information about their child’s treatment, but that is not necessarily true. Prior to the amendment, §20-104 permitted a care provider to inform parents about the treatment a child needed or had received, even if the child objected. The new §20-104 revises that permission; a health care provider may now give a parent information about a child’s treatment so long as the provider does not believe “that the disclosure will lead to harm to the minor or deter the minor from seeking care.” Most experienced care providers feel it is important to include parents in a child’s care plan whenever possible and will likely continue to do so as long as sharing information would not be obviously detrimental to the child’s well-being.
Children having the ability to seek mental health treatment on their own raises ancillary issues. For example, what are the financial obligations of a parent regarding mental health treatment to which they did not consent? Under §20-104, and prior to amendment, parents were not liable for the costs of consultation, diagnosis, or treatment to which they did not consent. The law as amended does not change that either.
Therefore, a very real issue looms large; a child may wish to have mental treatment that he/she believes is needed, but the parents are under no legal obligation to pay for it. Moreover, if the children’s health insurance is tied to the parent(s) then there is little opportunity for a child desiring treatment to engage a provider without involvement of the parents. This presents a complex problem for a new law that was designed to increase access to mental health care.
As of this writing, the amended statute has not yet gone into effect, but will do so on October 1, 2021); it is far too early to tell whether the new legislation will accomplish what its proponents hope, or what its detractors fear. Maryland parents concerned about the impact of a separation, divorce, or child custody dispute upon their child’s mental health may wish to speak with an knowledgeable family law attorney. An experienced practitioner can advise you regarding the impacts of this new law as well as how to support your child through difficult family transitions. For further information, please contact Strickler, Platnick & Hatfield to schedule a consultation.