RD44 - Report on Issues Relating to Mental Health Services to a Minor and Access to Records: SB431 (2020) – November 22, 2021
Pursuant to Rule 20(o) of the Rules of the Senate of Virginia, the Senate Committee on Education and Health referred the subject matters contained in Senate Bill 431 (seeattached bill) to the Department of Health Professions (DHP) for study. The legislation seeks to prohibit “a health care provider from refusing to provide mental health services to a minor on the basis that the parents of such minor refuse to agree to limit their access to such a minor’s health care records, or request that such health care provider testify in a court proceeding regarding the treatment of the minor."
In response to this request, DHP established a workgroup consisting of physicians, psychologists, professional counselors, marriage and family therapists, social workers and family law attorneys. All of the representatives have experience working with children and families, as well as navigating the family court system.
Work Group Members
Roger C. Burket, MD, DFAPA, DFAACAP
The workgroup found the issue far more complex than could be addressed in one year, extended the study period, undertook a jurisdictional analysis of the issue, and reviewed case law. The group defines these issues as integral to the discussion:
1. maintaining a trusting and confidential relationship with a child-client in a therapeutic relationship;
2. providing immunity for clinicians who act in good faith;
3. preventing further damage to parent-child relationships;
4. preventing children from feeling betrayed by the therapy professions; and
5. providing courts with access to necessary information to determine the best interests of the child in child custody determinations.
At the conclusion of the study period, the following themes emerge.
Policies addressing this issue should:
1. grant immunity from a complaint to the professional board or from civil prosecution for a health professional who acts in good faith.
2. require that a child’s mental health records remain as confidential as possible, consistent with the need for counsel and the court to review those records for the purposes of the action before it.
3. suggest/require the court employ a closed inspection of the child’s records, alternatively.
4. suggest/require the court use on-camera, private testimony from the mental health provider with review of the minor’s records to which only the judge has access. The judge would not be permitted to release this information to the parents.
5. strengthen the "best interest of the child" statute to protect the therapeutic relationship of a mental health provider with the minor.
In addition, a review of the laws in other states reveals that if SB431 were enacted, Virginia would be the first state to ban a mental health provider from contractually binding parents to forgo access to the minors’ records or agree not to subpoena the clinician. It is unlikely that such a contract could be enforceable if the court ruled that access to the records was in the best interest of a child.