The Complex Legal World of Children’s Mental Health
Mental health services for children and youth operate within a legally complex intersection of professional regulation, privacy law, consent and capacity law, and family law. Providing these services require health care providers and support staff to navigate legally and socially complicated situations that have significant consequences for the client, their family, and the health care provider.
In order to respond effectively to these situations, children’s mental health providers should ensure that staff and health care providers have the necessary knowledge and understanding of the area and access to timely legal advice in the event issues arise. (And with this client population, issues always arise!) Below is an overview of the legal framework governing the provision of children’s mental health services, as well as examples of common issues that may arise when providing services to children, youth, and their families.
Consent and Capacity
A fundamental component of the provision of health care is informed consent. Providers of health care services are responsible for obtaining informed consent for any treatment or service they propose, from the individual or, if the individual is not capable of giving consent, their substitute decision-maker. Because such decisions are capacity-based, health care professionals and clinical staff – and particularly providers of mental health services to children – frequently struggle with the thorny issues associated with consent and capacity. These issues include:
Obtaining valid informed consent in accordance with the Health Care Consent Act, 1996 (“HCCA”) and in a manner appropriate to the individual child;
Determining whether a child is capable of giving that consent;
Assessing the role of substitute decision-makers and when they are required; and
Managing disputes between decision-makers.
A person is capable of consenting to health care treatment if they meet the two-part test set out in the HCCA:
They are able to understand the information relevant to a decision about treatment. This means they can process and retain the information.
They are able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. This means that they have insight into the condition for which treatment is proposed, they can weigh the risks and benefits of treatment, and they can apply the information given to their own circumstances.
Where a person is not capable of making a decision, consent must be obtained from their substitute decision-maker. Substitute decision-makers are bound by the decision-making principles set out in the HCCA.
Privacy
Privacy and safeguarding sensitive information are also areas which can be especially challenging for children’s mental health providers. These difficulties are often compounded by the fact that the standards for safeguarding the information protected by these laws are constantly evolving along with technology, and as privacy issues go before the courts and the Information and Privacy Commissioner of Ontario. Possible challenges that may arise include:
Safeguarding information protected by law, such as personal health information;
Establishing boundaries with parents regarding the collection and disclosure of their child’s personal health information; and
Managing requests for records or other information in the context of a family law or criminal law matter.
Furthermore, even determining which laws apply to the provider can create uncertainty, as one or more of the following laws may apply depending on the purpose of the mental health services and how they are funded:
Personal Health Information Protection Act, 2004 (“PHIPA”) – A provincial law that regulates the collection use and disclosure of personal health information within Ontario’s health care sector.
Child, Youth and Family Services Act (“CYFSA”) Part X – A provincial law that regulates the provision of child, youth and family services in Ontario, and which sets out in Part X the privacy rights of children and youth in care or receiving services.
Youth Criminal Justice Act – A federal law that governs Canada’s youth justice system, and which includes strict privacy protections for youth engaged in the criminal justice system (either as alleged offenders or as witnesses).
Mandatory Reporting
The CYFSA also establishes a duty to report a child in need of protection. This duty applies to everyone, not just children’s mental health providers, but they and their staff should understand this duty and have protocols in place to ensure that this duty is met. Issues that arise when this duty is triggered include:
Determining when the duty is triggered and who will make the report;
Determining what information to provide in light of applicable privacy laws; and
Establishing clear policies and protocols for staff.
Providing services to Indigenous communities
There are several important differences in the law regarding the provision of children’s mental health services in Indigenous communities. There is also the exciting challenge of expanding community-led children’s mental health services following the legal recognition in the CYFSA that First Nations, Inuit and Métis peoples are entitled to provide their own child and family services. Some of the issues that may arise in this context include:
Determining whether services are regulated at the federal or provincial level;
Incorporating traditional practices into services while complying with applicable regulations; and
Responding to a request for records in a culturally sensitive manner.
Family Law
A significant challenge faced by health care providers is how to manage young clients whose parents are involved in a dispute. Where custody of the child is in question, it is often unclear who should consent to the young person’s treatment or counselling. Where legal proceedings are ongoing, or the parents are engaged in a high conflict dispute, the children (and their health care providers) can be caught in the middle, resulting in tremendous stress for all involved. Additionally, health care records are often requested by disputing parties, which raises a plethora of legal issues for the provider, such as:
Assessing the implications of a custodial vs. access parent on consent to treatment and disclosure of information;
Managing requests for records from disputing parties and their lawyers;
Determining who can consent to treatment;
Establishing effective boundaries with parents; and
Determining a provider’s rights and obligations, for example, if asked to provide evidence in court.
The above is by no means an exhaustive list of the issues that may arise when providing children and youth with mental health services. Ongoing developments in how these issues are addressed in laws and regulations and by the courts can make best practices a moving target. However, there are several steps that can help prepare for these issues and ultimately improve the quality of services:
Develop comprehensive policies and procedures around these issues;
Train staff and health care providers so that they are ready to respond if and when and issue arises; and
Seek legal advice.
How We Can Help
We have been supporting children’s mental health providers for over two decades, with everything from summary advice on issues as they arise to representation in legal proceedings, and everything in between. As a result, we are very familiar with the complexities of the legal context in which children’s mental health providers operate and the kind of challenges they most frequently face.
We provide training, advice and representation related to a variety of matters, including regarding privacy, consent, capacity, and mental health legislation (such as Part X of the CYFSA), mandatory reporting and managing requests from family members. Our firm also drafts and reviews public facing materials with a view to ensuring they are easily understood by your clients and their families. We offer consultations on challenging issues such as how custody and access orders and disputes impact consent and disclosure of records, the rights of children and their parents/caregivers in various circumstances, and management of privacy considerations. We also advise children’s mental health providers on funding issues.
Do you or your organization provide children’s mental health services and want more information? Please contact us.
