Informed Consent By One Parent – Florida Mental Health Professionals

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When Florida parents divorce and share parental responsibility, either may consent to mental health treatment for a child. Therefore, mental health treatment providers generally may accept informed consent by only one parent to mental health treatment. 

Informed Consent by One Parent: Each Parent Has a Fundamental Right to Direct Their Child’s Mental Health

Parents’ Bill of Rights 2021 

Effective July 1, 2021, Florida adopted the Parents’ Bill of Rights, Chapter 1014, Florida Statutes. See Laws of Florida, Chapter 2021-199.

The Parents’ Bill of Rights states “a” parent has the fundamental right to direct his or her child’s mental health. The state, its political subdivisions, any other governmental entity or institution can’t infringe on this fundamental right. 

Section 1014.04(1)(e), Florida Statutes lists among parental rights reserved to “the parent” of a minor child:

The right to make health care decisions for his or her minor child, unless otherwise prohibited by law. 

The Parents’ Bill of Rights defines “parent” in the singular to mean:

For purposes of this chapter, the term “parent” means a person who has legal custody of a minor child as a natural or adoptive parent or a legal guardian.

Section 1014.02, Florida Statutes.

Parents Are the Natural Guardians of Their Child

Parents with intact parental rights are each the natural guardians of their own children and of their adopted minor children. See Section 744.301(1), Florida Statutes.  If the parents’ marriage ends, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted. If the parents have been granted shared parental responsibility, both continue as natural guardians.

When parents share parental responsibility, however, each continues as a natural guardian.

A March 2022 case illustrates the scope of each parent’s rights to a child’s counseling records. The Fourth DCA discussed each parent’s rights to request records and interplay with the child’s psychotherapist-patient privilege, which each parent may assert. Section 90.503, Florida Statutes. See Bentrim v. Bentrim, 335 So. 3d 706 (Fla. 4th DCA 2022). Read more about access to records and a child’s psychotherapist-patient privilege here.

One Parent’s Informed Consent: What Does “A” Parent’s Consent Mean?

The 4th DCA considered Florida’s adoption statute and plain language about “a” parent’s consent to an adoption entity’s intervention. See Kistner v. DCF (In the Interest of MR), 327 So. 3d 848 (Fla. 4th DCA 2021).

Similarly, multiple informed consent provisions for Florida mental health providers refer to consent by “a” or “the” parent or guardian.

Kistner v. DCF – September 15, 2021

In Kistner, an adoption entity moved to intervene in a termination of parental rights proceeding, and attached dad’s consent to intervention. Regarding intervention, section 63.082(6)(a) requires a trial judge to allow intervention if “a” [singular] parent signs a consent for adoption with the adoption entity.

Yet the trial judge found reading the statute’s language that way ignored other provisions of the adoption statute requiring both parents’ consent to adoption. Mom was known, participating in the TPR proceedings, and had her parental rights intact. Thus, the trial judge concluded the nonparty couldn’t intervene without her consent, too.

Florida’s 4th DCA reversed. The court agreed with the adoption entity. The trial judge erred when it determined “a parent” and “the parent” required an adoption entity to get both parents’ consent. First, sections 63.082(6)(a) and (6)(b), Florida Statutes plainly don’t define “parent” to include both parents. Second, the articles before “parent” don’t suggest both parents’ consent to intervention in a TPR proceeding is required.

Indefinite Articles ‘A’ and ‘The’ – To the Dictionary!

For the plain meaning of ‘a’ parent and ‘the’ parent, the Kistner court dusted off the dictionary:

The indefinite article “a'” and definite article “the” are undefined in the statute. But “a”‘ is defined in dictionaries as ‘[u]sed before nouns and noun phrases that denote a single but unspecified person or thing: a region; a person.’ A, The American Heritage Dictionary of the English Language 1 (5th ed. 2016); see also A, Merriam-Webster’s Collegiate Dictionary 1 (11th ed. 2003) (‘used as a function word before singular nouns when the referent is unspecified’).

The American Heritage Dictionary of the English Language defines the” as ‘used before singular or plural nouns that denote particular, specified persons or things: the baby; the dress I wore.’ The, The American Heritage Dictionary of the English Language 1803 (5th ed. 2011); see also The Merriam-Webster’s Collegiate Dictionary 1294 (11th ed. 2003) (‘used as a function word to indicate that a following noun or noun equivalent is definite or has been previously specified by context or by circumstance’).

Kistner v. DCF, Case No. 4D21-1550 (Fla. 4th DCA September 15, 2021) (emphasis added).

More Definitions: What Does “Medical Care and Treatment” Include?

Florida law authorizes a natural or adoptive parent, legal custodian, or guardian to consent to “medical care and treatment.” “Medical care and treatment” includes,

ordinary and necessary medical and dental examination and treatment, including blood testing, preventive care including ordinary immunizations, tuberculin testing, and well-child care, but does not include surgery, general anesthesia, provision of psychotropic medications, or other extraordinary procedures for which a separate court order, health care surrogate designation under s. 765.2035 executed after September 30, 2015, power of attorney executed after July 1, 2001, or informed consent as provided by law is required, except as provided in s. 39.407(3).

Section 743.0645, Florida Statutes.

The definition of “medical care and treatment” doesn’t expressly include “mental health treatment.”

With no parental consent, under The Florida Mental Health Act (also known as The Baker Act), a child 13 years or older can receive mental health diagnostic and evaluative services, individual psychotherapy, group therapy, counseling or other verbal therapy from a licensed mental health professional.  See Bittinger, Ann, Legal Hurdles to Leap to Get Medical Treatment for Children, THE FLORIDA BAR JOURNAL (January 2006), n. 30. See also section 394.4784, Florida Statutes.

A minor child 13 years or older needs no parental consent for outpatient crisis intervention services under section 394.4784, Florida Statutes. Otherwise, for a minor child patient, the provider of mental health facilities, programs, or services that the Florida Department of Children and Families oversees must get express, informed consent for admission or treatment for mental illness from the child’s guardian. Section 394.459(3), Florida Statutes. The statute reads “parent” in the singular.

In the next section, we review informed consent requirements for Florida Mental Health Treatment Providers.

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