The law is clear on parental consent |

The law is clear on parental consent

As a Nevada County lawyer who represents many children in family law, guardianships and dependency proceedings, I have studied the attorney general’s opinion regarding the confidentiality of a student’s medical care, as well as the case law and a myriad of statutes upon which Mr. Lockyer’s opinion depends.

As the parent of a Nevada Union student who has labeled her mother a control freak because I ask too many questions about her life, I also comprehend the concerns of parents who may feel excluded from their children’s medical care by the school policy in the eye of this stormy debate.

In these dual roles, I am well positioned to appreciate the direct tension between the competing legally protected privacy interests of the minor child and the parent’s legally protected interest in the care, custody and control of his or her minor child. I was one of the speakers at the school board hearing. I understand that some parents feel sabotaged and undermined by the school’s privacy policy.

A minor’s right to privacy was a question entertained at length in a 1997 California Supreme Court decision in which the former attorney general, Dan Lungren, took the position that minors did not have medical privacy rights, especially if that right involved abortion.

To sum up the 145-page opinion, American Academy of Pediatrics v. Lungren, Lungren lost the argument. The Supreme Court declared a statute unconstitutional that infringed on the “fundamental autonomy privacy right of either a minor or an adult” in private medical matters. The Supreme Court observed that the question before it was “not whether, as a matter of policy, the challenged statute is wise or beneficial, but instead whether it is constitutional.”

The Lungren case instructs us on the enactment of “medical emancipation” laws, beginning in 1953, which authorize minors to obtain medical, surgical or hospital care in all contexts without parental consent. The court also declared that, whether we like it or not, “children are not simply chattels belonging to the parent, but have fundamental interests of their own that may diverge from the interests of the parents.”

The latter is a bitter pill to swallow for control freaks like myself. But as an advocate for children, I acknowledge and accept the sound public policy and principle set forth in Article I of our California Constitution, which guarantees the right of privacy to all of us – essentially from the age of 12 to the grave.

The court found that the Legislature recognized that “in matters concerning sexual conduct, minors frequently are reluctant, either because of embarrassment or fear, to inform their parents of medical conditions relating to such conduct, and consequently will postpone or avoid seeking medical care if they are required to obtain parental consent.” These statutes have been expanded to include mental health treatment, drug or alcohol treatment, or counseling on an out-patient basis. If it’s any consolation to parents, a minor can’t obtain an appendectomy, for instance, without parental knowledge or consent. Further, the parent is not required to pay for any medical or counseling services obtained without his or her knowledge or consent.

The subtext of the argument for “parent friendly” policies became clear at the school board meeting and in subsequent submissions to The Union. Some parents fear that their children will be leaving school to obtain abortions without their consent. There is little basis in fact for this argument. To my knowledge, no woman – adult or minor – has had an abortion in Nevada County in decades because no medical provider will perform one and the hospital forbids them. This is a red herring used to distract us from the real issue, and it smells like one.

Further, the cavalier contention that Child Protective Services should be summoned if a minor has a medically private issue that can’t be discussed with the parents is utter nonsense. The legal threshold of CPS involvement is that the child must be seriously at risk of imminent harm from physical or sexual abuse, severe neglect or emotional damage. A child’s refusal to confide in his or her parent, for whatever reason, does not trigger a CPS dependency action.

Now, to the school board policy at issue: If a school requires a student to obtain a parent’s consent for confidential medical or counseling treatment, the confidentiality obviously evaporates. This has been held by the courts to be a blatant invasion of the student’s privacy rights and violates a number of California laws set forth in the Education Code, Family Code and Health and Safety Code ensuring and enumerating those rights. It also defeats the legislative intent to encourage minors to seek the treatment they need.

Accordingly, the school board members and the district, once informed of the law, who knowingly violate the law by changing the school policy, will subject themselves to civil liability by anyone who has “standing” to sue them, i.e., students and/or their parents aggrieved by such a change.

A more recent and well-known case, Lockyer v. San Francisco (the same-sex marriage case decided in August by the California Supreme Court), held that when a duly enacted statute imposes a ministerial duty upon an official to follow the law in performing a mandated act, the official generally has no authority to disregard the statutory mandate. In other words, the school district is obligated to follow the law and thus should maintain its current student privacy policy. Superintendent Maggie Deetz should be commended for her steadfast adherence to the law rather than bowing to political pressure from disaffected parents and Supervisor Sue Horne.


Cheryl McCall practices law in Nevada County.

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