Consent

Obtaining Informed Consent has a number of considerations.

The following is included here in its entirety from the NH Board's website, with bold and colored emphasis added to bring points to our attention:

New Hampshire Board of Mental Health Practice

NEWS FROM THE BOARD

January 21, 2004

JOINT CUSTODY

The Board held a discussion on the issue of joint custody because it is a current issue that presents difficulty to many clinicians. The Board presents this as information to the public.

"Joint custody" is a phrase that is commonly used to describe one of two things in a divorce context: either joint physical custody or joint legal custody. Joint physical custody means that both parents have a right to share physical custody of their child - for example, the parents live near each other and the child has a right to stay at either parent's home at any time during the week. Joint legal custody means both parents have the right to make major life decisions for their child. This is the type of custody that would involve the Board's licensees.

Joint legal custody is defined under RSA 458:17, III as including "all parental rights with the exception of physical custody which shall be awarded as the court deems most conducive to the benefit of the children." In general, New Hampshire has adopted a presumption that joint legal custody is in the best interest of children. RSA 458:17, II.

Joint legal custody means that "both parents hold legal responsibility and have equal rights regarding major decisions in the child's life including education, religion, and medical care. On the other hand, daily decisions of a more immediate nature are made by the parent-caretaker." New Hampshire Practice Series, Family Law, Sec. 14.07.

There are no New Hampshire cases, with published decisions, that state that a doctor or a mental health practitioner must obtain both parents' permission before treating a child if the parents have joint legal custody of the child. However, because both parents have "equal rights" to make decision regarding their child's education, religion, and medical care, they both have the right to consent to mental health treatment.

The one limitation to this general rule is that the individual divorce decree, or subsequent court orders, could authorize one parent over the other to make decisions regarding whom the child will treat with. For example, if the divorce decree says that both parents have joint legal custody, mom has physical custody, and mom can make the decision as to which medical care person will treat the child, then dad's consent is not needed. In this example, however, dad would have full right to access of his child's records and would have a right to talk or meet with the mental health practitioner for an update on his child's treatment. There could also be a subsequent order of the court that says that neither mom nor dad can change or add medical providers without further order of the court. In this type of case, a practitioner should not agree to treat a child until there is a specific court order allowing that practitioner to treat the child.

Because the individual divorce decrees or subsequent orders could provide further information that would be very important to mental health practitioners, the Board recommends that in each case of treatment of a child, the mental health practitioner might want to ask some variation of the following questions:

1) Are you married to the child's other parent?

2) If yes, does he/she consent your child entering treatment with me? Will he/she sign a release? If no, explore the situation and determine if the practitioner feels comfortable treating the child without both parents' permission.

3) If no to #1, are you divorced?

4) If yes to #3, please provide me with a copy of your divorce decree and explain what your understanding of the legal custody arrangement is - for example do you [the parent bringing the child for treatment] get to decide which medical care providers your child treats with? Are there any subsequent orders from the court that deal with issues regarding medical treatment of the child? I will need a copy of your divorce decree and any subsequent orders relating to medical treatment for my file before I can begin treatment unless the other parent is willing to sign the release to begin treatment.

5) If no to #3, what is your child's relationship with his/her other parent? [In this case, the mental health practitioner will need to determine if there is a legal relationship between the child and the other parent - such as a separation agreement or order for a married couple that is separated; or, in the case of a child born out of wedlock, an unmarried couple's custody agreement, a private custody contract/agreement, or a court order establishing a legal relationship with the child. The practitioner should obtain a copy of any such agreement or order. Again, it would be best if the practitioner could obtain both parents' permission before beginning treatment.]

One concern that licensees will raise is that by asking to see the divorce decree, any subsequent court order, or any custody agreement, they are being required to make a legal decision regarding whose consent is needed before they can begin treatment. However, technically under their Codes of Ethics, they are required to make sure that they have authority to treat a child. If a practitioner makes a diligent effort to obtain custody documents and makes a reasonable assessment of those records, that practitioner has met his/her responsibility under the Code of Ethics to have informed consent for treatment. Further, in some circumstances, a practitioner may want to contact his/her private legal counsel to assist in making the decision of who must consent to treatment.

This outline of how to provide informed consent and obtain a release/waiver of the mental health practitioner/client privilege is provided by the Board as guidance to practitioners. However, the Board does not guarantee that this outline encompasses every joint custody situation that may arise in practice. Practitioners must consider the individual circumstances of each joint custody situation and should seek advice specific to a situations when a practitioner is in doubt.

from: http://www.nh.gov/mhpb/jt_custody.html