Children and adolescents in therapy: consent and confidentiality

The psychological care of children and adolescents multiplies legal questions. Who signs consent when the patient is 9 years old? And when he is 15? What can you tell parents about what happens in session? What do you do if they are separated and one does not agree with your child doing therapy?

These are questions that appear before you can even start working. And the intuitive answer ("parents sign and ready") became old: the Civil and Commercial Code changed the paradigm and today adolescents have a degree of autonomy that many professionals have not yet incorporated into their frame.

In this article we explain to you who signs informed consent according to age, how to agree confidentiality with parents and what to do when parents are separated or in dispute, with a model of consent ready to adapt.

From "less incapable" to progressive autonomy: the paradigm shift

For decades, the minor was treated legally as an incapable person by whom others decided. That scheme changed. The current framework is based on four rules:

• Civil and Commercial Code, art. 26: Consecrates Progressive Autonomy. Between 13 and 16 years, the adolescent can decide for himself about non-invasive treatments that do not compromise his health. From 16, he is considered as an adult for decisions about the care of his own body.
• Law 26.061 (Integrated Protection): establishes the best interests of the child as the guiding criterion and his or her right to be heard in all matters affecting him or her.
• Law 26.529 (Patient's Rights): regulates informed consent, medical records and confidentiality.
• Law 26.657 (Mind Health): Requires informed consent for all types of mental health intervention.

What does this mean in clinical practice? That the child or adolescent is not an object of treatment that adults hire: he or she is a subject of rights. He or she has the right to explain to him or her, to be heard and, as he or she grows, to decide.

Who signs informed consent according to age

Article 26 of the Civil and Commercial Code orders the practice in three stripes. Faced with a doubtful case, consult with your professional college.

Under 13 years

The consent is signed by the parents or legal guardians: they authorize the beginning of the treatment, receive information about framing, fees and limits of confidentiality, and sign the document.

This does not mean that the child is left out: his right to be heard (Law 26.061) translates into assent, which we see below.

Between 13 and 16 years

Here is the most important change. Teenagers in this strip can consent to non-invasive treatments that do not compromise their health, and psychotherapy in general falls into that category.

That is to say: a 14 teen can, in principle, consent for himself to the initiation of psychotherapy. To do so does not mean that it is appropriate to leave adults outside: unless there are clinical or protective reasons, adding to those responsible usually strengthens the treatment.

Since the 16 years

From the 16, the adolescent is considered as an adult for decisions about the care of his own body. For the consent of a psychotherapy, treat him as an adult patient: he signs and he decides.

Assent: Always explain to him, be as old as he is

Regardless of who signs, the child or adolescent has the right to understand what is going to happen. Assent is that explanation adapted to their language: what they will do in the sessions, which can say if they do not want to talk about something, that what counts is private unless they are in danger.

With a child of 7 years it can be a talk with drawings; with one of 11, a short text that reads and signs. It has no legal force on its own, but it is an ethical requirement and a clinical tool. In our informed consent in psychology guide you have an assent template ready to adapt.

Confidentiality with parents: the three-part framing

What are you going to tell the parents? If you tell them everything, the teenager doesn’t talk anymore. If you don’t tell them anything, the parents distrust and the treatment falls.

The rule that works best: process yes, content no. Those responsible will be informed about the process (assistance, general evolution, guidelines to accompany at home), but not the content of the sessions (what he said, who he talked about, what he's worried about).

The important thing is not only the rule, but when and how you agree:

1. In the first interview, with everyone present. Parents and patient hear the same at the same time: "What we talk about in session is private; to you I will tell you how the process comes, not the detail."
2. With the explicit exception. Everyone has to know from the outset that in the face of a risk situation confidentiality gives way to protect the patient, and that includes talking to adults.
3. In writing. The pact goes in the consent signed by those responsible and in the agreement you present to the teenager. Below we leave the model text.

This three-part frame avoids the worst scenario: the teenager who learns that you talked to his parents about something he believed was private. That trust does not recover.

Separate parents: the situation that generates the most consultations

When parents are separated, the good practice is to have the consent of both parents to initiate treatment: even if one brings the child to clinical practice, the other generally retains parental responsibility, and a treatment initiated behind his or her back is a foreseeable source of conflict.

What to do in practice?

• Always ask for the other parent in the first contact: if you are aware, if you agree, what the personal care scheme is like.
• Find the signature of both, even at different times. An e-mailed agreement, documented on the tab, is better than nothing.
• If a parent does not agree, it is not up to you to resolve the conflict: the discrepancy must be resolved by adults by the appropriate means. Consult your professional college before initiating or continuing treatment and document each communication.
• If there is litigation for personal care, extreme caution: neat record of everything (who brought the patient, what was spoken to each adult, what was agreed), equivalent communication with both and zero improvisation.

When to breach confidentiality

With minors, exceptions to confidentiality are not just a faculty: in certain cases they are an obligation. The two central scenarios:

• True and imminent risk for the adolescent or for third parties: suicidal ideation with plan, serious risk behaviors, concrete threats. The priority is to protect, and that involves involving those responsible and, if necessary, emergency devices.
• Abuse, abuse or violation of rights: in the light of knowledge or a well-founded suspicion that the child or adolescent is being harmed, you have an obligation to act to protect him or her. The usual channels are the bodies for the protection of rights in your jurisdiction and, as the case may be, the corresponding complaint. Your professional school can guide you on the local circuit.

Two care that makes a difference:

1. Warn the patient first, whenever possible. "This thing you told me forces me to do something to take care of you" preserves the link much better than knowing later.
2. Record the decision. What information you received, with whom you consulted, what you did and why. If your decision is reviewed later, that record is your best support. In our guide on professional secret in psychology we develop the exceptions in detail.

The medical records of a minor

The medical records of the minor patient follows the general rules of the 26.529 Law, with particularities:

• Who can ask: while the patient is a minor, his/her legal representatives can request it. That does not erase the confidentiality pact: what you include in the formal registration deserves a conscious decision. Upon reaching the age of majority, the right of access is the patient.
• Conservation: The general term is 10 years since the last performance, but with minors the recommendation of prudence is to keep it well beyond the age of majority, because the periods of claim can be extended. Details are in our medical records in psychology guide.
• Registration of care: in contexts of family conflict, a minor's medical records is more likely to be required by the courts. I wrote each entry knowing that a third party could read it.

The school and other third parties asking for information

The school asks for a report, health insurance requests records, the pediatrician wants to know how the treatment comes. The rule does not change because it is institutions:

• Only with written permission from those responsible (and the adolescent's agreement, depending on age). A school phone call is not an authorization.
• Informs what is necessary and nothing else. A school report can give guidance to the classroom without revealing session content or diagnoses that the school does not need.
• Leave a copy of everything: what was requested, who authorized it, what was delivered. A minor's health data are sensitive data; in our guide on personal data protection law for psychologists we explain what that implies.

Frequent errors

Those we see most in the consultation with colleagues:

• To have one parent sign "because the other never appears," without even registering that an attempt was made to contact him.
• Promise absolute confidentiality to the adolescent. You cannot fulfill it, and when you have to break it the damage will be double.
• Tell session content to parents to reassure them. Reach once for the patient to stop talking.
• Emitting reports on one parent you never evaluated, at the request of the other parent.
• Trying assent as a procedure: a signed paper that the child did not understand is not assent.
• Do not update the frame when the patient grows. The agreement of the 12 years is not the one corresponding to the 16.

Template: consent for responsible persons and agreement with the adolescent

A basic model to adapt to your jurisdiction and validate with your professional college.

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Informed consent for psychological treatment of underage patients

Professional: Lic. [Name and Surname] - M. P. [professional license number]

Patient: [Name and Surname] - DNI [Number] - Date of birth: [date]

Responsible: [Name and Surname] - DNI [Number] (link: [mother/father/guardian]) and [Name and Surname] - DNI [Number] (link: [mother/father/guardian])

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1. Proposed treatment

A psychotherapeutic treatment of orientation [focus] is proposed, with a frequency of [quantity] session/s weekly/s of [duration] minutes, in modality [presential/online/mixta]. General objectives: [describe briefly].

2: Participation of the child or adolescent

He/she was informed in a language appropriate to his/her age and agreed to participate. His/her opinion will be heard throughout the process.

3. Confidentiality

What is discussed in the session by the patient is confidential. The professional will inform those responsible about the general progress of the process, but not about the content of the sessions. This reservation is granted only in the event of situations of risk to the patient or to third parties, or of violation of his/her rights, in which case the professional will act to protect him/her and inform the appropriate person.

4. Communication with both parents

Both officers declare their agreement with the start of treatment and accept that the professional's communication will be equivalent to both. The professional will not issue reports or opinions on persons who have not evaluated.

5. medical records and personal data

The clinical records are kept with security measures that guarantee their confidentiality. Those responsible can request access to the medical records according to the regulations in force; upon reaching the age of majority, this right corresponds to the patient.

6. Fees and cancellations

The value of each session is $[mount]. Cancellations must be made at least [quantity] hours in advance.

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Disclosure agreement paragraph to present the adolescent:

This space is yours. What we talk about in session is private: I'm not going to tell your [paps/responsibles] what you tell me. I'm going to tell them how the process in general comes, but not the content. The only exception is if you or someone else is in danger: in that case I'm going to have to do something to take care of you, and whenever I can I'm going to tell you before. If any of this doesn't close you, we talk about it.

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Frequently Asked Questions

Can a 15 teen start therapy without her parents knowing?

In principle yes: between 13 and 16 years you can consent for yourself non-invasive treatments that do not compromise your health, and psychotherapy in general qualifies. That said, if there are no protection reasons to exclude adults, adding them is usually better. If the booking request is linked to a serious risk or family conflict, consult your school.

What do I do if a father asks me for his son's medical records?

While the patient is a minor, his/her legal representatives can request it. Check the identity and link of the person requesting it, hand over the formal registration and record the request and delivery. If there is a dispute between the parents, consult your school first: the request may be part of the conflict.

Do I need the signature of the two parents to care for a child?

As a good practice, yes: seek the conformity of both, even if they sign at different times. If one is inubitable or refuses, document attempts to contact and advise with your school before moving forward.

Can I tell the parents what your son says in session?

No, except risk. The guideline is process yes, content no: information about the course of treatment, not what the patient counts. That limit has to be agreed with everyone in the first interview.

Summary

• The Civil and Commercial Code (art. 26) recognizes progressive autonomy; the minor is subject to rights, with the right to be heard (Law 26.061).
• Minors of 13: sign those responsible, always with the consent of the child explained in their language.
• From 13 to 16: Teens can themselves consent to non-invasive treatments such as psychotherapy; adding those responsible is good practice.
• From the 16: He is considered as an adult for decisions about the care of his own body.
• Confidentiality with parents: process yes, content no. Pactalo in the first interview, with all present and in writing.
• Separate parents: seek the conformity of both, register everything and do not issue reports on who you did not evaluate.
• Confidentiality gives way to certain and imminent risk or violation of rights: obligation to protect and register the decision.
• medical records of minors: legal representatives may request it; keep it beyond the age of majority.
• In any legal grey area, the reference is your professional school.