Legal Rights & Risks of Adolescents in the Age of AIDS Legal Action Center 225 Varick St., 4 th Floor, NY NY 1001

1. Legal Rights & Risks of Adolescents in the Age of AIDS Legal Action Center 225 Varick St., 4th Floor, NY NY 10014 Phone: 212-243-1313 or 800-223-4044 (rev’d 12-1-09)

2. Have questions? • Call the Legal Action Center • Ask for “attorney on call” • 212-243-1313 • (800) 223-4044 • 1 – 5 p.m.

3. This training is . . . • Forproviders of HIV and other health care and services for young people who are living with, at risk or affected by HIV and AIDS. • About the legal rights and limits on the rights of adolescents in the age of AIDS, in regard to: • Getting preventive and & other health care, and • Handling HIV & other health risks they face.

4. Three training objectives One: Be able to describe when minors can make their own health care decision regarding: • HIV prevention, testing and treatment • STDs & other communicable diseases • Alcohol and drug problems • Mental health services • Reproductive health care PART 1: WHO CAN CONSENT TO HEALTH CARE FOR MINORS?

5. Three training objectives • Two: Be able to summarize who may decide about disclosing confidential health information about minors – • When their parents are in the picture. • When foster care, school, public health, child abuse and neglect, and juvenile or criminal justice systems are involved in their lives. PART 2: CONFIDENTIALITY – MINORS AND HEALTH CARE

6. Three training objectives Three: Be able to – • Describe the legal consequences of transmitting HIV to others. • Answer adolescent clients’ questions about their legal rights in these areas. Incorporated into Parts 1 & 2

7. Part 1:Who Has the Right to Consent to Health Care for a Minor?

8. First, need to know:Who generally has the right to consent to health care?

9. A. Who generally has the right to consent to health care? General principles of NY health law: • NY law generally respects individuals’ right to autonomy in making health care decisions. • The right to consent also means the right to refuse health care generally, or a particular test, treatment or health service

10. A. Who generally has the right to consent to health care? (cont.) General principles of NY health law (cont.) • This means individuals are generally free to do whatever they choose with their own body, IF • The individual is an “adult” in the eyes of the law (18 years or older), and • He or she has “capacity to consent.” • See below for definitions.

11. A. Who generally has the right to consent to health care? (cont.) • Capacity to consent • Means able to: • Understand and appreciate the nature and consequences of the proposed treatment or diagnosis, including • benefits and risks of the proposed treatment • possible alternatives to the (including not doing it) AND • Make an informed decision about whether to consent – or not – to the proposed test, procedure, or treatment.

12. What about minors?

13. B. Who has the right to consent to health care for a minor? • Who is a “minor”? • A person under age 18 • Who consents to health care for a minor? See next slide…

14. B. Who has the right to consent to health care for a minor? (cont.) • The “person authorized by law to consent to health care” for an individual: • person with authority under NYS law to make health care decisions for that individual. AND • person whose consent must ordinarily be obtained before a health care provider may give that person medical/health services.

15. B. Who has the right to consent to health care for a minor? (cont.) General rule under NY law: • PARENT MUST CONSENT. • A minor’s PARENTS are ordinarily the “persons authorized by law to consent to health care” for their child until age 18. • Therefore, PARENTAL CONSENT is usually needed to provide medical or other health services to a child under 18.

16. B. Who has the right to consent to health care for a minor? (cont.) • Who is the “parent” whose consent is needed? • Biological parent(s) in intact families, where parents have legal authority to make health care decisions for their child, AND/OR . . .

17. B. Who has the right to consent to health care for a minor? (cont.) . . . AND/OR • Other persons in addition to or instead of biological parent(s), who • stand in parents’ shoes for purpose of making health care decisions for the child, and • are “authorized by law to consent to health care” for that child.

18. B. Who has the right to consent to health care for a minor? (cont.) . . “Others” who may authorize minors’ health care (continued…) • May be: • Legal guardian • “Authorized agency” (ACS or DSS) responsible for child in foster care – in some circumstances • Adoptive parent(s)

19. B. Who has the right to consent to health care for a minor? (cont.) . . “Others” who may authorize minors’ health care (continued…) • Case scenario: • Mary is 15 years old. Her parents died of AIDS. Mary’s aunt, Lucy, is her legal guardian. • Who is the person “authorized by law” to consent to health care for Mary?

20. B. Who has the right to consent to health care for a minor? (cont.) . . “Others” who may authorize minors’ health care (continued…) • Case scenario – answer: • Lucy – Mary’s aunt & legal guardian, is the person “authorized by law” to consent to health care for Mary. • This is because Lucy has been appointed Mary’s legal guardian (not because she’s her biological aunt).

21. B. Who has the right to consent to health care for a minor? (cont.) . . “Others” who may authorize minors’ health care (continued…) • Case scenario: • William is six years old and was placed in foster care during a child neglect proceeding against his parents. Who is the person “authorized by law” to consent to health care for William?

22. B. Who has the right to consent to health care for a minor? (cont.) . . “Others” who may authorize minors’ health care (continued…) • Case scenario – answer: it depends. • Generally, William’s biological parents would continue to authorize his health care. • BUT in some circumstances, the courts give ACS (or the local DSS) the authority to make health care decisions for a child in foster care.

23. B. Who has the right to consent to health care for a minor? (cont.) • “Parent” used in this training means the person(s) • Who have legal authority to make health care decisions for a minor, and • whose consent is needed for minor child to be given medical or other health, when law requires parental consent.

24. B. Who has the right to consent to health care for a minor? (cont.) • Since parents’ consent is usually needed to treat a minor child, parents must ordinarily be notified and involved in making health care decisions for a child under 18. • Consent of one parent is enough. The law does not say which parent must consent, or give priority to one or the other.

25. B. Who has the right to consent to health care for a minor? (cont.) • Note: The person who is “authorized by law to consent to health care” for an individual is also often – but not always – the person authorized to consent, or not, to disclosures of confidential health information about that individual. • See Part Two, on Confidentiality.

26. B. Who has the right to consent to health care for a minor? (cont.) The flip side of NY’s general rule: • MINORS GENERALLY MAY NOT CONSENT TO HEALTH CARE ON THEIR OWN. • Minors are NOT generally authorized by law to consent to health care for themselves. • Children under age 18 do NOT ordinarily have the legal authority – or right – to make health care decisions on their own. BUT. . .

27. B. Who has the right to consent to health care for a minor? (cont.) The flip side of NY’s general rule (cont.): • BUTSOME MINORS MAY CONSENT TO HEALTH CARE FOR THEMSELVES – WITHOUT PARENTAL INVOLVEMENT OR CONSENT. • When does that happen? See next slide…

28. C. When may minors consent to own health care? When may a minor consent on his/her own? • One: NY law gives some individuals under 18 legal status as “adults” for purpose of making health care decisions for themselves. • Two: NY law (and Constitutional privacy protections) allow minors to make reproductive health care decisions – not dependent on age. • Three: NY law gives minors authority to obtain certain kinds of health care on their own, even if under 18, if they have “capacity to consent.”

29. C. When may minors consent to own health care? (cont.) • Married minors • Pregnant minors • Minor parents • Emancipated minors • Minors seeking health services for specific health problems/conditions • Emergency care

30. C. When may minors consent to own health care? (cont.) 1. Married minors: • May consent to all health care • Marriage confers “adult” legal status for purpose of making health care decisions • Law assumes capacity to consent

31. C. When may minors consent to own health care? (cont.) 2. Pregnant minors: • Have legal right to make own decision about prenatal care – includes almost all health care while pregnant & in labor/delivery • Without parental notification, involvement, or consent. • Pregnancy confers “adult” legal status for purpose of making all prenatal care decisions.

32. C. When may minors consent to own health care? (cont.) 2. Pregnant minors (cont.) • Where does this right come from? • Constitutional right to privacy • New York law (Public Health Law § 2504(3): “Any person who is pregnant may give effective consent for medical, dental, health and hospital services relating to prenatal care.”

33. C. When may minors consent to own health care? (cont.) 2. Pregnant minors (cont.) • Case scenario: Jenny is 14 years old and pregnant and does not want her parents to know. She would like to get prenatal care, and aside from that, is not feeling well herself and needs to go to the doctor. If she makes an appointment at the doctor, does the doctor need to contact her parents?

34. C. When may minors consent to own health care? (cont.) 2. Pregnant minors (cont.) • Case scenario – answer: No: as a pregnant person, Jenny is “authorized by law” to access prenatal care. If Jenny has other health problems (e.g., strep throat), the can also get treated for that without parental consent because of the potential effect on the pregnancy.

35. C. When may minors consent to own health care? (cont.) 3. Had a child – minor parents • May consent to all their own health care • Being parent confers “adult” legal status for purpose of making health care decisions • Law assumes capacity to consent • Parent/legal guardian may not override or be asked for consent instead

36. C. When may minors consent to own health care? (cont.) 3. Minor parents (cont.) May consent to own health care whether: • Married or not • Mother or father • Paternity is legally established • Is the parent with physical or legal custody of the child, or • Child’s other parent has voluntarily given up parental rights or had rights terminated

37. C. When may minors consent to own health care? (cont.) 3. Minor parents (cont.) May also consent to health care for their minor children, if child lacks capacity to consent, or is not authorized by law to consent on own to specific health services.

38. C. When may minors consent to own health care? (cont.) 3. Minor parents (cont.) • Case scenario: • Wanda is a 17-year old girl and has a three-year old son. They both have the flu. • May Wanda consent to health care for both her & her son?

39. C. When may minors consent to own health care? (cont.) 3. Minor parents (cont.) • Case scenario – answer: • Yes. As a parent, Wanda is the person “authorized by law” to consent to her own health care as well as the health care of her children.

40. C. When may minors consent to own health care? (cont.) 4. Emancipated minors • Emancipation = renunciation of parental rights • No clear definition for who or how • Courts generally consider a minor emancipated if: • Married • In armed services • Economically independent through work • Parent failed to support minor and minor sought emancipation

41. C. When may minors consent to own health care? (cont.) 4. Emancipated minors (cont.) • May emancipated minors consent to own health care? Courts have generally said “yes.”

42. C. When may minors consent to own health care? (cont.) 5. Minors seeking health services for specific health problems/conditions – • Case scenario: • Maria is 17. She wants to get birth control. May she do so without notifying her parents?

43. C. When may minors consent to own health care? (cont.) 5. Minors seeking health services for specific health problems/conditions – Yes: • NY law also gives minors the right to obtain health care for certain sensitive conditions/problems without parental notification or consent. • IF minor has capacity to consent, and gives informed consent. • Reproductive health services, STDs, HIV (limited), alcohol & drug, and mental health treatment

44. C. When may minors consent to own health care? (cont.) 5. Minors seeking health services for specific health problems/conditions – These sensitive health conditions include: • Reproductive health services • STDs • HIV (limited) • Alcohol & drug use • Mental health conditions

45. C. When may minors consent to own health care? (cont.) • What is informed consent? • Knowing,voluntary and informed decision to undergo a particular treatment or diagnostic test/procedure • After being given the information reasonably needed to make a “knowledgeable evaluation” of the reasonably foreseeable risks and benefits of, and alternatives to, the proposed treatment or diagnosis.

46. C. When may minors consent to own health care? (cont.) 5. Minors seeking health services for specific health problems/conditions (cont.): • Reproductive health services: • May consent to – • Birth control • Emergency contraception • Abortion

47. C. When may minors consent to own health care? (cont.) 5. Minors seeking health services for specific health problems/conditions (cont.): • STD testing/treatment -- Case scenario: What if 17-year old Maria just learned that her boyfriend has genital herpes? Can she go to the doctor for a test & treatment without her parents’ finding out?

48. C. When may minors consent to own health care? (cont.) • Minors seeking health services for specific health problems/conditions (cont.): • STD testing/treatment – case scenario answer: Yes: Minor may consent to STD testing/treatment without parent/guardian consent IF • Can give informed consent • Have capacity to consent • NY Pub. Health Law §2305(2)

49. C. When may minors consent to own health care? (cont.) 5. Minors seeking health services for specific health problems/conditions (cont.): • HIV testing • Case scenario: • Daphne is 15 years old. She found out that a friend of hers got HIV after having unprotected sex with Daphne’s ex-boyfriend. Daphne is really scared she might have HIV. Can she get an HIV test without her parent’s knowledge or consent?

50. C. When may minors consent to own health care? (cont.) 5. Minors seeking health services for specific health problems/conditions (cont.): • HIV testing – Case scenario – answer: • Yes – if she has “capacity to consent.” • NY law generally prohibits HIV testing without informed consent. • Informed consent can be provided by: • Patient – including minor, if has “capacity to consent.” (See next slide)