Mandatory Reporting

You asked several questions about the rights of 15- or 16-year-olds in New York State to confidentiality and to consent to DV services. Minors’ rights is a topic that can be tricky and very state-specific. A program providing services to teens may need to consult several different laws, including the jurisdiction’s laws regarding mandatory reporting, emancipation, a minor’s right to consent to medical and mental health services, and a parent or guardian’s right to access a child’s medical, counseling, or other personal records. For help answering your questions, I reached out to Alicia Aiken, JD, the Director of the Danu Center’s Confidentiality Institute, a national policy and technical assistance project that supports helping professionals to protect privacy for violence survivors. I will explain the information she relayed to me below. If you are a professional who assists violence survivors, and you would like to speak to her directly with follow-up questions, please let me know and I will send you her email address.  I also looked at the Minors’ Privacy Toolkit FAQ for New York (pdf), which was created by the Victim Rights Law Center. 

Now, I am going to answer each of your questions in turn.

1. You asked: If a 15- or 16-year-old speaks to a staff person employed with a domestic violence prevention agency in New York state about a romantic partner who is severely physically assaulting them on an ongoing basis, must the agency and staff person maintain confidentiality? 

Answer: To answer this question, it is important to know what is the profession of the staff person communicating with the teen, because the confidentiality rules play out differently depending on the profession of the staff person. Is the staff person an advocate/victim counselor or a licensed mental health provider?  

If the staff person is a DV advocate/case manager/victim counselor (different programs may have different names for this position), and NOT a licensed mental health provider, we are not aware of any statewide rules in NY on how advocates can or can’t talk to teenagers. And we are not aware of any state confidentiality statutes that address the question of teenagers and their confidentiality directly.

For federally funded programs, the Violence Against Women Act (VAWA) says that if the minor is “allowed” to seek services without parental involvement, then the minor has confidentiality and controls decisions about whether information gets released. But the question of “at what age is a minor allowed to work with us without parental involvement?” is left up to local programs to determine. Ideally, any program would have a policy about how they interact with teenagers. A teenager could ask, “How old do I have to be to work with you and not have to tell my parents about it?” Whatever age that is, that is the age at which the teen signs their own releases and decides who can see their advocacy records

Another question is whether the service provider, if they are a mandatory reporter for child abuse and neglect, would be required to report dating violence involving a teen to the NY Statewide Central Register of Child Abuse and Maltreatment. This is an entirely different question than whether it is a confidential relationship between the service provider and the teen client. Confidential providers can also have a mandatory reporting exception they must follow. However, mandated reporters in NY are only required to report abuse or neglect by parents or caregivers. (This FAQ document from the NYCLU explains more - look at the answer to 1.) This suggests that a DV service provider would not be required to call in nor would child welfare accept a report about violence by a peer.

2. You asked: What is the policy if the DV staff person is working in a school and the school policy is to make these reports? 

Answer: Regarding staff working inside a school, in general, advocates are not allowed to contract with schools to give up confidentiality protections or make more reports than they would make if there were meeting with the teen at a community location. However, Alicia Aiken from the Confidentiality Institute has observed in practice that schools routinely demand that if someone is coming in to the school building, they must follow the school’s rules, and some advocacy programs agree to do that. As with a community-based program, a teenager could ask the school-based service provider,  “How old do I have to be to work with you and not have to tell my parents about it?” Also, you might consider reaching out to one of the programs that provides Relationship Abuse Prevention Program (RAPP) services in local high schools to ask about their policies. In New York City, two programs that provide services to teens both in and outside of schools are Day One and Rising Ground. (Please note that WomensLaw is not affiliated with these programs or websites and I provide them for your information only.)

3. You asked: Does the minor have the right to sign a release in order for the agency to disclose that information to an outside party (for example the parent, school or law enforcement?)

Answer: As I said above (in my answer to question 1), in general, if the teen is considered old enough to work with the program without parental involvement, then the teen would sign their own releases and decides who can see their advocacy records, similarly to how the program would work with an adult client. Releases generally must be signed by the victim unless the victim is a minor who doesn’t understand consent (because of age or other factors). In those cases, the parent or guardian should sign. If the victim understands consent, but lacks legal capacity to consent for services, the release must be signed by both the minor and a parent or guardian. Consent may not be given by the abuser of the minor or the abuser of the other parent of the minor. If a parent or guardian consents for a minor, the program should attempt to notify the minor (communicate with them directly) as appropriate. See the Victim Rights Law Center’s Minors’ Privacy Toolkit FAQ for New York, answer to question 10. The sections of VAWA, the law that applies to federally-funded DV programs, about this are 34 U.S.C. § 12291(b)(2)(B)and  28 C.F.R. § 90.4(3)(ii).

4. You asked: In addition, are the clinical staff of the agency who are licensed counselors in the state of New York legally allowed to provide counseling to minors without the consent of a parent or guardian? And if so, what is the age cut off, if any?

Answer: Generally, states do have rules about the age at which minors can access mental health therapy from a licensed mental health counselor without parental involvement. In NY, a minor can receive outpatient mental health services without the consent of a parent or guardian if:

• The minor knowingly and voluntarily seeks such services; 
• Such services are clinically necessary to the minor’s well-being; AND
• One of the following things is true:
  • A parent or guardian is not reasonably available; OR
  • Requiring the parent or guardian’s involvement would have a detrimental effect on treatment; OR
  • The parent or guardian has refused consent and a physician determines that the treatment is necessary in the best interest of minor.

(Note: This does not apply to surgery, shock treatment, or the use of experimental drugs or procedures, which require a specific consent.)

The law doesn’t appear to provide a specific age cutoff and different programs may have a different minimum age for the youngest clients they work with. When a licensed mental health provider gives outpatient mental health treatment to a minor, the minor is supposed to sign a form indicating that the treatment is being voluntarily sought and the provider is supposed to document why parental consent was not obtained. The state law defines “mental health practitioner” as a physician, a licensed psychologist, or a person providing services under the supervision of a physician in a facility operated or licensed by the Office of Mental Health (OMH). The NY State law that addresses consent for the mental health treatment of minors is N.Y. Mental Hyg. Law § 33.21(c).

See the Victim Rights Law Center’s Minors’ Privacy Toolkit FAQ for New York, answer to question 3. Also, NYCLU- the NYC Civil Liberties Union- has a pamphlet on Minors’ Rights to Confidential Health Care in New York (pdf). WomensLaw is not affiliated with these programs or websites and I provide them for your information only. Additionally, these publication are intended as guides and do not provide individual legal assistance. For legal advice about a specific situation, you should consult with an attorney in your state. You can use our website to find a local lawyer.

Additional resources: 

As I mentioned above, if you are a professional providing services to DV survivors, you can reach out for technical assistance to Alicia Aiken at the Confidentiality Institute. Also, another legal organization that provides technical assistance in the area of confidentiality and victims’ rights is the Victim Rights Law Center- they are based in Oregon, but provide expert support and consultation to service providers nationwide. For state-specific information you might also consider reaching out to the New York State Coalition Against Domestic Violence (NYSCADV) or the NYS Office to Prevent Domestic Violence (OPDV)- or, if you are in New York City, the Mayor’s Office to End Domestic and Gender Violence (ENDGBV)- or the New York Civil Liberties Union (NYCLU). Again, WomensLaw is not affiliated with these agencies or websites and I provide them for your information only. 

I want to also to draw your attention to the resources we have on our Information for Teens and Young Adults page, which may be helpful for individuals experiencing teen dating violence (and the people who care about them).