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This entry was published on 2014-09-22
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SECTION 33.21
Consent for mental health treatment of minors
Mental Hygiene (MHY) CHAPTER 27, TITLE E, ARTICLE 33
§ 33.21 Consent for mental health treatment of minors.

(a) For the purposes of this section:

(1) "minor" shall mean a person under eighteen years of age, but shall
not include a person who is the parent of a child, emancipated, has
married or is on voluntary status on his or her own application pursuant
to section 9.13 of this chapter;

(2) "mental health practitioner" shall mean a physician, a licensed
psychologist, or persons providing services under the supervision of a
physician in a facility operated or licensed by the office of mental
health;

(3) "outpatient mental health services" shall mean those services
provided in an outpatient program licensed or operated pursuant to the
regulations of the commissioner of mental health;

(4) "reasonably available" shall mean a parent or guardian can be
contacted with diligent efforts by a mental health practitioner; and

(5) "capacity" shall mean the minor's ability to understand and
appreciate the nature and consequences of the proposed treatment,
including the benefits and risks of, and alternatives to, such proposed
treatment, and to reach an informed decision.

(b) In providing outpatient mental health services to a minor, or
psychotropic medications to a minor residing in a hospital, the
important role of the parents or guardians shall be recognized. As
clinically appropriate, steps shall be taken to actively involve the
parents or guardians, and the consent of such persons shall be required
for such treatment in non-emergency situations, except as provided in
subdivisions (c), (d) and (e) of this section or section two thousand
five hundred four of the public health law.

(c) A mental health practitioner may provide outpatient mental health
services, other than those treatments and procedures for which consent
is specifically required by section 33.03 of this article, to a minor
voluntarily seeking such services without parental or guardian consent
if the mental health practitioner determines that:

(1) the minor is knowingly and voluntarily seeking such services; and

(2) provision of such services is clinically indicated and necessary
to the minor's well-being; and

(3) (i) a parent or guardian is not reasonably available; or

(ii) requiring parental or guardian consent or involvement would have
a detrimental effect on the course of outpatient treatment; or

(iii) a parent or guardian has refused to give such consent and a
physician determines that treatment is necessary and in the best
interests of the minor.

The mental health practitioner shall fully document the reasons for
his or her determinations. Such documentation shall be included in the
minor's clinical record, along with a written statement signed by the
minor indicating that he or she is voluntarily seeking services. As
clinically appropriate, notice of a determination made pursuant to
subparagraph (iii) of paragraph three of this subdivision shall be
provided to the parent or guardian.

(d) A mental health practitioner may provide a minor voluntarily
seeking outpatient services an initial interview without parental or
guardian consent or involvement to determine whether the criteria of
subdivision (c) of this section are present.

(e) (1) Subject to the regulations of the commissioner of mental
health governing the patient's right to object to treatment, subdivision
(b) of this section and paragraph two of this subdivision, the consent
of a parent or guardian or the authorization of a court shall be
required for the non-emergency administration of psychotropic
medications to a minor residing in a hospital.

(2) A minor sixteen years of age or older who consents may be
administered psychotropic medications without the consent of a parent or
guardian or the authorization of a court where:

(i) a parent or guardian is not reasonably available, provided the
treating physician determines that (A) the minor has capacity; and (B)
such medications are in the minor's best interests; or

(ii) requiring consent of a parent or guardian would have a
detrimental effect on the minor, provided the treating physician and a
second physician who specializes in psychiatry and is not an employee of
the hospital determine that (A) such detrimental effect would occur; (B)
the minor has capacity; and (C) such medications are in the minor's best
interests; or

(iii) the parent or guardian has refused to give such consent,
provided the treating physician and a second physician who specializes
in psychiatry and is not an employee of the hospital determine that (A)
the minor has capacity; and (B) such medications are in the minor's best
interests. Notice of the decision to administer psychotropic medications
pursuant to this subparagraph shall be provided to the parent or
guardian.

(3) The reasons for an exception authorized pursuant to paragraph two
of this subdivision shall be fully documented and such documentation
shall be included in the minor's clinical record.