By Thea Pitzen
Health care providers who treat minors are likely aware of Virginia’s general laws and regulations regarding such treatment. In most circumstances, you need the consent of the patient’s parent or guardian for any proposed treatment of the minor. But what happens when the patient turns 18? When it comes to medical record access, there are some points to keep in mind and steps physicians and/or practices can take to help facilitate a smooth transition from the treatment of a minor to that of an adult.
As an initial point, Virginia law carves out certain treatment for which a minor is deemed an adult. Specifically, a minor is deemed an adult for purposes of consenting to health services: (1) to diagnose or treat venereal disease or any infectious or contagious disease that must be reported to the Board of Health, (2) in the case of birth control, pregnancy or family planning except for purposes of sexual sterilization (note that there are separate legal requirements regarding consent for abortion, which are beyond the scope of this article), (3) in the case of outpatient care, treatment, or rehabilitation for substance abuse, and (4) in the case of outpatient care, treatment, or rehabilitation for mental illness or emotional disturbance. A minor is deemed an adult for purposes of accessing or authorizing disclosure of medical records related to those four areas. However, a parent or guardian is still permitted to obtain the minor’s records unless the treating physician, psychologist, clinical social worker, or licensed professional counselor determines that such disclosure would be reasonably likely to cause substantial harm to the minor or someone else.
However, once a patient reaches the age of 18, he or she is an adult with a clear privacy interest their own health information and medical records. Many physicians and practices that treat minor patients may have authorizations or release of information (“ROI”) forms on file that were executed by a parent or guardian on behalf of the minor patient. Once the patient turns 18, though, they have the right to permit (or not) the disclosure of their medical records. Therefore, it is prudent to have any authorizations set to expire upon the patient turning 18 and then have all such patients complete new forms. In addition, any access to a patient’s electronic health record should expire upon the patient reaching the age of 18, and the patient should then be given the option to put in place new authorizations.
There are compelling reasons that an 18-year-old patient may want to authorize one or both parents/guardians to have access to their records. For example, if the patient was in a serious accident, such access to the records may be quite helpful in facilitating treatment. While the average 18-year-old may not think about that scenario independently, reviewing authorizations and any electronic health record access can present an opportunity to have that discussion. Ultimately, it is important to keep in mind that access to medical records is the patient’s decision upon reaching age 18.
Ms. Pitzen focuses her practice on advising and defending hospitals, physicians, and other health care providers in litigation and professional regulatory board investigations. goodmanallen.com
