Child Custody and Consent to Treatment

Volume 1, Number 10, Winter 2001

Timothy, age 12, had been raised by his grandparents since infancy. His mother, who could not handle the responsibilities of a child, had left him with her parents and moved away. His father had disappeared before Timothy’s birth and played no part in the child’s life. Although Timothy’s grandparents have cared for him for most of his life, no formal custody papers had ever changed hands.

When the grandparents took Timothy to Daria, LCSW for treatment, they agreed to sign the consent form. However, Daria was concerned if their consent form was valid.

The above scenario is one commonly faced by social workers treating children. In each instance, it is imperative that the social worker determine if consent has been obtained from the legally appropriate person. Generally speaking, informed consent from a person who lacks the authority to give consent is the same as NO consent at all. This rule applies to nearly all non-emergency treatment. The social worker has a duty to determine prior to treatment if the authority to consent exists.

Who has authority? NASW Insurance Trust’s book “Prudent Practice” provides this simple definition: “Unless parental rights have been terminated by a court order, each parent has the right to waive confidentiality and consent to the service of their child regardless of which parent has custody.” If the parents never have been married to each other, the mother usually has the right to consent to treatment. Unless the father’s name is on the child’s birth certificate, the biological father may have no right to consent to treatment for the child until his paternity is established through a decree of paternity signed by the court. If the parents are divorced, the rights of the parents usually are stated in language in the divorce decree or a court order.

Social workers may see children in an emergency situation where immediate help is required. Typically emergency services are not provided in isolation, but in collaboration with other health care professionals, including physicians. In such instances, the social worker and a team of medical/mental health professionals, usually two physicians, determine whether treatment is appropriate, document the facts that resulted in the emergency, and state the rationale for the conclusion that emergency treatment is required. Treatment after the emergency has passed, requires an appropriate separate consent.

Whenever working with children, consider the following:

  1. Be familiar with your state laws and regulations. Some states allow minors to give informed consent if they have reached a certain age or under certain conditions. Some states allow for the non-custodial parent to consult the child’s therapist.
  2. Routinely ask for documentation of the parental or custodial relationship.
  3. Wherever possible, discuss the parental rights with both parents before treatment is initiated. If the parents are in divorce or custody litigation, establish rules about your role as the treating therapist and the testimony, if any, to be provided.
  4. Always document at the time of treatment. Even though a social worker’s treatment records for a child are more likely to be used in litigation between parents or guardians, they can always be used in malpractice litigation against the social worker.

Margaret A. Bogie, MHSA, Insurance Consultant, is a contributing writer and Mirean Coleman, LICSW, Senior Staff Associate at NASW, is a contributing editor to this series for the NASW Insurance Trust. The names and case examples used in Practice Pointers articles are completely fictitious, and any resemblance to persons living or dead is purely coincidental. Questions about this article should be directed to NASW via blawrence@naswasi.org.