Hipaa Laws: Minors' Rights And Privacy Protection

In the United States, the Health Insurance Portability and Accountability Act (HIPAA) grants every citizen the right to keep their health information confidential and choose who can access it. This includes minors. While a child is a minor, their parent or guardian is typically regarded as their personal representative and can make decisions about their medical care and access their protected health information (PHI). However, once minors reach the age of 12, they gain the right to receive certain services, such as mental health treatment, without parental consent. In some cases, minors can prevent their parents from accessing their medical records, and health care providers are not legally allowed to share this information without the minor's consent. State laws also play a role in determining the rights of minors and the access parents have to their children's health information.

Parents as personal representatives

In the United States, the Health Insurance Portability and Accountability Act (HIPAA) generally considers parents to be their children's "personal representatives" while the children are minors. This means that parents can make decisions about their children's medical care, access their protected health information (PHI), and authorise its disclosure to third parties.

However, there are exceptions to this general rule. Parents may not be considered their child's personal representative if:

• The child independently consented to a health care service, no other consent is required by law, and the child has not requested that the parent be treated as the personal representative;
• The state allows minors to obtain a health care service without parental consent, and the child, a court, or another authorised person has consented to that treatment; or
• The parent voluntarily agreed that the child's information would be kept confidential from them.

It is important to note that neither parents nor their minor children have a right under HIPAA to access notes of psychotherapy sessions that are kept separate from the medical record.

HIPAA also does not address consent to treatment and does not preempt or change state or other laws that address consent to treatment. Therefore, the privacy rule defers to state and other laws that address the fitness of a person to act on behalf of a minor.

Parental access to children's medical records

In the United States, the Health Insurance Portability and Accountability Act (HIPAA) generally considers parents or guardians of minor children as their "personal representatives". This means that parents can exercise their child's HIPAA Privacy Rule rights, make medical decisions on their behalf, and access their child's protected health information (PHI). However, there are exceptions to this general rule.

HIPAA does not override state laws that give more confidentiality rights to minors. Parents may not be considered their child's personal representative and may not be able to access their medical records if:

• The minor independently consented to a health care service, no other consent is required by law or the child, and the child has not requested that the parent be treated as the personal representative;
• The minor obtains care at the direction of a court or a person appointed by the court;
• The parent agrees to a confidential relationship between the minor and a healthcare provider; or
• The healthcare provider reasonably believes that the child may be subjected to domestic violence, abuse, neglect, or that providing the parent with access could endanger the child.

In these cases, the parent does not control the minor's health care decisions and protected health information related to that care.

In the United Kingdom, children aged 12 or older are usually considered to have the capacity to give or refuse consent to parents requesting access to their health records. However, British Medical Association guidance suggests that reasonable efforts should be made to encourage the child to involve their parents or guardians. Parents of children aged 11 or younger will usually be entitled to access their records.

Minors' rights to privacy

Under HIPAA, parents or guardians of minor children are generally considered their "personal representatives" and are authorized to make medical decisions and access their children's protected health information (PHI). However, there are exceptions to this rule. Parents are not considered the personal representative, and thus do not have access to PHI, in the following circumstances:

• When the minor independently consents to a health care service, no other consent is required by law, and the minor has not requested that the parent be treated as the personal representative.
• When state law allows minors to obtain a health care service without parental consent, and the minor, a court, or another authorized person has consented to that treatment.
• When the parent agrees to a confidential relationship between the minor and a healthcare provider.

In addition, healthcare providers may deny parental access to a minor's PHI if they reasonably believe that the child has been or may be subjected to domestic violence, abuse, or neglect, or that granting access could endanger the child.

While HIPAA sets a federal standard for minors' privacy rights, individual states may have more stringent laws that provide greater protection for minors' PHI. For example, many states have special laws protecting adolescents' health privacy, particularly regarding information about sexual activity, pregnancy, HIV and other sexually transmitted diseases (STDs), substance abuse, and mental health. In these cases, the state law takes precedence over HIPAA.

In California, for instance, minors aged 12 and above have the legal right to health information privacy, and parents are restricted from viewing certain types of information in their children's medical records, such as details about mental health, reproductive health, and substance abuse.

Confidential care for adolescents is important because it encourages access to healthcare and facilitates discussions about sensitive topics that can significantly impact their health and well-being. Healthcare providers should be aware of both federal and state laws governing minors' privacy rights and ensure that they obtain appropriate consent and maintain confidentiality in accordance with those laws.

State laws on adolescent health privacy

HIPAA generally allows parents or guardians to be the "personal representative" of their minor child and make decisions about their medical care. However, there are three situations in which the parent is not considered the personal representative:

• When the minor consents to care and the parent's consent is not required by state law.
• When the minor obtains care at the direction of a court or a court-appointed person.
• When the parent agrees to a confidential relationship between the minor and the healthcare provider.

Even in these situations, parental access to the minor's medical records may be allowed, required, or denied by state law.

Many states have special laws protecting adolescents' health privacy, especially regarding information about sexual activity, pregnancy, HIV, other sexually transmitted diseases, substance abuse, and mental health. The rationale behind these laws is that confidentiality encourages minors to seek healthcare.

However, there are exceptions to confidentiality. For example, confidentiality must be breached if a clinician determines that a patient poses a serious danger to themselves or others, or if there is known or suspected abuse or neglect.

Exceptions to the general rule

There are three circumstances in which a parent is not considered the "personal representative" of their minor child under the HIPAA Privacy Rule. These exceptions generally align with the ability of certain minors to obtain specified healthcare without parental consent under state law or standards of professional practice. In these situations, the parent does not control the minor's healthcare decisions and, therefore, does not control the protected health information (PHI) related to that care.

The three circumstances are as follows:

• When state or other law does not require the consent of a parent or other person before a minor can obtain a particular health care service, and the minor consents to the health care service. For example, a state law may provide an adolescent the right to obtain mental health treatment without parental consent, and the adolescent consents to such treatment.
• When someone other than the parent is authorized by law to consent to the provision of a particular health service to a minor and provides such consent. For instance, a court may grant authority to make healthcare decisions for the minor to an adult other than the parent, to the minor, or the court may make the decisions itself.
• When a parent agrees to a confidential relationship between the minor and a healthcare provider. An example would be a physician asking the parent of a 16-year-old for permission to talk with the child confidentially about a medical condition and the parent agreeing.

Even in these exceptional situations, the parent may have access to the medical records of the minor if state or other applicable law requires or permits such parental access. Parental access would be denied if state or other law prohibits it. If the law is silent on parental access, the healthcare provider can use their professional judgment, within legal boundaries, to decide whether to grant or deny it.

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