Set-backs for youth

The subcommittee of the House Finance Committee, charged with overseeing the budget for the Department of Health and Human Services, has recommended that two bills aimed at improving outcomes for youth be held over for further study rather than acted on this year. This action came despite strong support from the Children and Family Law Committee and preliminary vote from the full House of Representatives. In both cases, the stated objections were the projected costs of the proposals.

HB 584 would have returned 17 year olds to the juvenile justice system. The full House easily passed the measure earlier this year (248 – 93), but by House rules it also must be reviewed by the Finance Committee to consider its fiscal impact. The long term costs for keeping 17 year olds in the adult correctional system far outweigh the immediate investment that would be required to serve them in the juvenile system. Nonetheless, the subcommittee was unwilling to make this commitment and advocates are left to regroup and try again in 2009.

HB 502 would have provided Medicaid coverage for youth who have aged out of foster care and are attending college.  For the small number of foster alumni who actually make it to college (perhaps as few as two dozen at any given time), the lack of health insurance is a major barrier to continuing. In fact, UNH requires students to have health insurance as a condition of attending. However, even this minimal cost (perhaps as little as $60 or $70,000 a year) was too much for the committee to accept. There is increasing interest in how best to help youth who are transitioning to adulthood from both the child welfare and juvenile justice systems. Child advocates will regroup on this issue.

Children’s need for confidentiality

The NH Supreme Court ruled in October, 2005 that children are “clients” of mental health professionals just as are adults. (In the matter of Berg & Berg, 152 NH 658) As such, children have a right to a confidential relationship with their therapist, and, by extension, with any health care provider. SB 389 seeks to reduce the ruling in this case to statutory language. The right of children to have confidential relationships with their health and mental health providers is an important one. Problems arise when one seeks to establish procedures for enforcing that right. The Court recognized that children do not have an absolute right to confidentiality, that, in the real world, most children grow up in families in which parents are protecting the best interests of their children, and presumably, don’t need a court to decide what information should or should not be shared. Furthermore, to say that children have a right to confidentiality leaves open the question of how and when to enforce that right. Children are legally incompetent to sign contracts (including a waiver of confidentiality). Although older children’s wishes may be binding, what would one do with an 8-year-old who needs medical records sent to a specialist, or a health form filled out for camp?

SB 389 may be a good beginning at recognizing the complexities of establishing and enforcing a child’s rights. However, it fails to create a workable system.  As written, it requires that in any case in which custody is an issue, the court must make the ultimate decision as to whether the release of information is warranted. This is so, even for routine information, such as a camp physical, that all parties—the child, both parents, even the guardian ad litem if there is one—see no problem with it. It also would allow the parent to block DCYF from accessing the record during a child abuse investigation until a court could rule on the request. This goes far beyond what the Court in Berg required. There, it said, “We refrain from establishing a detailed procedure through which the privilege should be waived or asserted, and instead leave that determination to the sound discretion of the trial court.” An amendment has been drafted with input from several individuals and groups with expertise in this area. It would simply codify the acknowledgement that a child is a client, and leave the details of implementation to the expertise of the providers and the courts.

The Supreme Court opinion did not mention any need for legislative action at all, but this simple amendment may be helpful in calling the attention of health and mental health providers to the rights of their child clients. It should also be noted that existing laws giving specific privacy rights to children in the areas of substance abuse treatment/prevention, family planning, and treatment for sexually transmitted diseases, are not affected by either Berg or SB 389. The bill is being heard by the Senate Judiciary Committee on Monday, March 10 at 3 PM (room 100 of the State House). That committee should take action no later than March 13.

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PROTECTING CONFIDENTIALITY

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