pp 10 min

Article

Ethical and Legal Considerations When Obtaining Informed Consent for Treating Minors of High-Conflict Divorced or Separated Parents

David Shumaker 1

and David Medoff 1

Abstract Obtaining informed consent for the treatment of minors from parents in high conflict and who are either divorced or separated is a crucial, initial, and ongoing aspect of the treatment process that merits awareness of both ethical and legal considerations. Parents in these cases frequently differ in their views of the need for treatment, their choice of treatment providers, and/or their goals of treatment. A parent or minor will often request the other parent remain uninvolved in treatment. In order to avoid negative treatment outcomes, licensing complaints, and/or civil liability, clinicians need resources from which to obtain critical information regarding the informed consent process. This article provides an overview of these considerations and a decision- tree model for obtaining informed consent when working with these complex families.

Keywords informed consent, treatment of minors, divorced parents, legal issues, ethical decision tree

High-conflict divorce and separation creates a host of psycho-

social stressors for all involved (Amato, 2001; Doolittle &

Deutsch, 1999; Fincham, Grych, & Osborne, 1994). Minors

whose parents are in high conflict may especially benefit from

supportive therapeutic services at the time of and following

divorce or separation (Lebow, 2003; Onedera, 2006). The

minor’s treatment experience and needs however are often

complex and complicated by their parents’ distrust and

acrimony (Johnston & Campbell, 1988). Clearly defining the

‘‘identified client’’ and the individual or individuals who will

provide consent for treatment, determine treatment goals, and

have legal access to treatment information becomes much more

complicated in cases where parents are engaged in acrimonious

relations. In addition, clinicians are understandably advised

from a risk management perspective to avoid treating minors

without informed consent from both parents (Behnke &

Hilliard, 1998; Hecker, 2010; Koocher & Keith-Speigel, 1990),

creating a precondition for therapy that may be difficult or even

at times impossible to achieve, given the strained parental

relations in play. Treating this population therefore presents a host

of unique ethical, clinical, and legal challenges for the outpatient

clinician (Fidnick, Koch, Greenberg, & Sullivan, 2011).

While many parents engaged in high conflict may share

legal custody, they may also hold radically different opinions

on the need for treatment, the reasons for referral, and/or

the choice of treatment provider, and this can result in cases

where a legal custodian will seek treatment for a minor without

the other parent’s knowledge (Hecker & Sori, 2010). Parents

seeking therapy in these cases may frequently cite a history

of high conflict, abandonment and/or abuse by the other parent,

previous treatment failures, and/or strained parent–child

relations as sufficient cause to move forward without the invol-

vement of the other parent. It is also common for minors in

these cases to request that one or even both parents remain

uninvolved in treatment for similar reasons. These requests can

set the stage for an unsatisfactory exchange within moments of

an initial contact between a clinician and a prospective client,

especially if the clinician cannot provide a compelling rationale

for why the combined support of both parents in treatment is

most often indicated. For this reason alone, the process of

obtaining informed consent from highly conflicted parents and

assent from their children can be much more complex than in

cases where an individual adult or even the minor of an intact

family presents for treatment (Beamish, Navin, & Davidson,

1994; Haslam & Harris, 2004; Rigazio-DiGillio, 1999). A clin-

ician who remains naı̈ve to the unique challenges posed when

treating this population is at risk of receiving licensing board

complaints (Bennett et al., 2006; Lawrence & Kurpius, 2000)

and/or delivering substandard treatment (Greenberg, Gould,

1 Department of Psychology, Suffolk University, Boston, MA, USA

Corresponding Author:

David Shumaker, Department of Psychology, Suffolk University, 41 Temple

Street, 6th floor, Boston, MA 02114, USA.

Email: [email protected]

The Family Journal: Counseling and Therapy for Couples and Families 21(3) 318-327 ª The Author(s) 2013 Reprints and permission: sagepub.com/journalsPermissions.nav DOI: 10.1177/1066480713478786 tfj.sagepub.com

Gould-Saltman, & Stahl, 1998). Knowing what questions to ask

of potential clients and when exceptions to general standards of

practice are indicated is essential to avoid poor outcomes.

Beyond the issue of parental consent, the voice of the minor

referred for treatment must be heard even if his or her informed

consent is not required by law (Alderson, 2007; Kuther, 2003).

Minors in need of therapeutic services may avoid seeking assis-

tance in the first instance or may prematurely withdraw from

treatment when therapy is undertaken in a climate of parental

distrust and conflict (Croxton, Churchill, & Fellin, 1988). Fur-

ther, due to real or potential loyalty binds, some minors referred

for therapy in the context of high parental conflict remain reluc-

tant to discuss their feelings regarding the co-parenting relation-

ship and other family concerns. This can occur despite repeated

assurances from the therapist and/or both parents regarding the

confidential nature of the minor’s disclosures in therapy. Thus,

minors in these unfortunate circumstances are present in body

but not in spirit during the therapy hour. To force treatment upon

a minor who is not in acute distress and who perceives signifi-

cant risk to engaging in therapy may run counter to the ethics

of beneficence and nonmaleficence (Beauchamp & Childress,

2001). This complicated array of factors can lead to a most

unfortunate irony in that those perhaps most in need of support

receive no treatment, have a negative treatment experience,

remain silent in therapy, or struggle to find a competent treat-

ment provider due to forces beyond their control.

Though the treatment environment in these cases has the

potential to be harsh and unforgiving, clinicians who possess

the courage to work with these challenging families greatly

increase the chances of a positive outcome if they are cognizant

of relevant laws, ethical guidelines for practice, and common

pitfalls associated with the undertaking. Beginning with a review

of relevant legal considerations and ethical guidelines, this arti-

cle extends recent discussion regarding these issues (please see

Ellis, 2009; Hecker, 2010; Kaplan & Culkin, 1995; and Tyson

et al., 2004) by providing clinicians with a decision-tree model

for reaching legally, ethically, and clinically defensible positions

relevant to the informed consent process. Special attention is

afforded to the specific concern regarding who provides

informed consent in cases where the parents are engaged in high

conflict and/or where a prospective parent or minor is resistant to

involving the other parent.

Legal Considerations

Ethical and clinically sound decisions regarding consent to

treat minors are based upon an understanding of relevant

federal law, state law, statutes and regulations, and case law

(Behnke & Hilliard, 1998). As a first step toward reaching both

legal and ethically sound decisions regarding consent to

provide treatment, clinicians are advised to consult the laws

of the state in which they practice pertaining to mental health,

divorce and domestic relations, confidentiality and privileged

communications, and child protection (Association of Family

and Conciliation Courts [AFCC]; Court-Involved Therapist

Task Force, 2010). Understanding both the definition of shared

or joint legal custody and the minimal standards for obtaining

informed consent for treatment of minors is critical to this

process. In Massachusetts, for example, ‘‘shared legal custody’’

is defined as ‘‘continued mutual responsibility and involvement

by both parents in major decisions regarding the child’s welfare

including matters of education, medical care and emotional,

moral and religious development’’ (Massachusetts General

Laws Chapter 208 Section 31, 2013). However, Behnke and

Hilliard (1998, p. 167) cogently point out that, ‘‘there is no duty

to inquire about custody when a parent brings a child to you and

no requirement that you obtain the informed consent of both

parents before you begin to treat’’. Thus, unless a clinician is

given reason to suspect that the parent who presents a minor for

treatment is not the legal custodian, Massachusetts Law does

not require the joint informed consent of parents for minors

to receive therapy. This stance appears representative of the

country as a whole (Hecker & Sori, 2010). Exceptions do exist,

however, where state law requires the consent of both parents

for treatment if there is court-ordered joint legal custody (APA

Practice Organization, 2011). Clinicians therefore are strongly

advised to know the minimal legal standards of the state in

which they practice for obtaining informed consent for treat-

ment of minors whose parents share joint legal custody.

A second area with which clinicians should become familiar

includes age of majority, emancipation, and ‘‘mature minor’’

laws, each of which is described in greater detail below.

Knowing the difference between assent and consent is also

imperative. In general terms, assent refers to an individual’s vol-

untary affirmation to participate in treatment (or research) while

consent refers to a more complex process associated with legal

decision-making capacity whereby the individual is thought to

evaluate information for the purpose of reaching an informed

decision (Lambert & Glacken, 2011). Historically, individuals

below the age of 12 are seen as possessing the cognitive capaci-

ties to only provide assent for treatment, with the minimal age of

consent across countries ranging from 12 to 19 years (Alderson,

2007). Most states, including Massachusetts, identify the age of

majority as 18 years. Upon reaching the age of majority, the

individual is assumed to possess the cognitive capacities to

competently provide informed consent.

Yet, there is a growing body of literature suggesting that

adolescents as young as 14 or 15 years do not appreciably differ

from adults in their ability to render competent decisions

regarding informed consent (Forehand & Ciccone, 2004;

Grisso & Vierling, 1978; Gustafson & McNamara, 1987). In

special circumstances, therefore, the law allows adolescents

below the age of 18 years to consent to mental health treatment

without parental consent. Factors frequently taken into consid-

eration when creating these statutes include the impracticality

of obtaining parental consent, the minor’s ability to understand

the proposed treatment, and the beneficial nature of the

proposed treatment (Weisleder, 2007). Several states give

minors explicit authority to consent to outpatient mental health

services (Boonstra & Nash, 2000) as well as substance abuse

services (Weisleder, 2007). Thus, it is imperative for the

clinician to understand the circumstances in which a minor may

Shumaker and Medoff 319

consent to outpatient mental health treatment without parental

consent because a minor’s stated preference for which parent or

parents are involved in treatment may weigh more heavily in

the decision-making process.

A first route for allowing minors the legal authority to

consent to treatment is emancipation laws (Horowitz &

Davidson, 1984; Legal Information Institute, 2012). Emanci-

pated status typically hinges upon the minor achieving one of

a variety of life milestones suggesting maturity, independence,

and autonomy (Kuther, 2003). In Massachusetts, these excep-

tions include the following: when a minor is (a) married,

widowed, or divorced, (b) the parent of a child, in which case

the individual may also give consent for medical treatment of

the child, (c) a member of the armed forces, or (d) pregnant

or believes herself to be pregnant (Massachusetts General Laws

Section Chapter 112 Section 12F, 2013). Massachusetts does

not have a formal procedure for granting emancipation, 1

and

clinicians are therefore strongly advised to obtain a copy of the

court order granting this status in cases where a minor presents

for therapy claiming to be emancipated (Juvenile Rights

Advocacy Project, 2006). Clinicians in other states are advised

to become familiar with the procedures for obtaining emanci-

pation in their state so that they can identify necessary docu-

mentation of emancipation.

Beyond emancipation, under special circumstances, states

may grant certain ‘‘mature minors’’ between the ages of 13

to 18 years access to medical and mental health treatment in the

absence of parental consent (Broome & Stieglitz, 1992). In the

granting of such status to some minors, here we see states

actively considering that the impact of a requirement for paren-

tal consent may potentially serve to prevent a minor from seek-

ing services. It is in this context that these states also consider

the minor’s perceived level of maturity, the need for treatment,

and the risks associated with not receiving treatment (Brody &

Waldron, 2000). A minor in Massachusetts is also allowed to

seek medical treatment without parental consent ‘‘when a delay

in treatment will endanger the life, limb, or mental well-being

of the patient’’ (Massachusetts General Laws Chapter 112

Section 12F, 2013). Provisions similar to this are found in most

other states wherein clinicians are allowed to treat minors with-

out parental consent under circumstances when a child, ‘‘pre-

sents with an emergency (e.g., suicide, homicide) or when it

would be in the minor’s best interest, such as cases of abuse,

neglect, or endangerment’’ (Hecker & Sori, 2010, p. 55). Thus,

clinicians are given considerable latitude by state law to treat

minors without parental consent if an ‘‘emergency’’ situation

is suspected. Massachusetts also allows minors as young as

16 years to voluntarily admit themselves into a mental health

facility for evaluation and treatment without parental consent

(Massachusetts General Laws Chapter123 Section 10, 2013).

One can perhaps infer from this that withholding treatment

from a minor in high distress is thought to be an untenable

circumstance. As can be seen by this brief review of Massachu-

setts Law, there are several circumstances in which a minor of

parents engaged in high conflict may be eligible to provide

informed consent for treatment.

An understanding of confidentiality laws and exceptions to

confidentiality and privileged communication between a clini-

cian and client is also essential when treating minors of parents

engaged in high conflict (Hecker & Sori, 2010). Specifically

defining the identified client and the decision to include one,

both, or neither parent in the discussion of informed consent for

treatment has an obvious and direct bearing upon not only how

therapy will be structured but associated expectations for

communication between all parties as well (i.e., the client, the

parents, and the clinician). Access to treatment records is also

directly impacted by these factors, and parents in high conflict

are more likely to request treatment records for court-related

custody purposes. This provides an additional compelling

rationale for the clinician to have a clear understanding of the

law and ethics regarding confidentiality and privileged infor-

mation (Ellis, 2009). It is also important to note that the 2002

update to the Health Insurance Portability and Accountability

Act (HIPAA) of 1996 outlined additional protections for min-

ors receiving treatment, and these protections have direct bear-

ing upon the issues of confidentiality and privilege. English and

Ford (2004) outline the circumstances wherein HIPAA privacy

laws allow for a minor to be viewed as the ‘‘individual’’ client

who has ultimate authority over release of confidential

treatment information. The circumstances generally include

cases in which the minor has the right to receive care without

parental permission due to emancipated status or a parent has

assented to an agreement of confidentiality between the health

care provider and the minor. There are situations, however,

where HIPAA privacy laws defer to state law, and this further

underscores both the complexity of these issues and the need

for clinicians to be fully informed.

Ethical Considerations

Beyond achieving familiarity with relevant legal standards, clin-

icians are strongly advised to follow the ethical guidelines put

forth by several practice organizations regarding informed con-

sent for treatment. The International Association of Marriage

and Family Counselors (IAMFC) Ethical Codes (Hendricks,

Bradley, Southern, Oliver, & Birdsall, 2011), the American

Association for Marriage and Family Therapy (AAMFT,

2012) Code of Ethics, the American Counseling Association

(ACA, 2005) Code of Ethics, the American Psychological Asso-

ciation (APA, 2010) Ethical Principles of Psychologists and

Code of Conduct Standards, and the Code of Ethics for the

National Association of Social Workers (NASW, 2008) offer

several helpful recommendations for obtaining informed consent

when working with minors and families. These efforts focus

mostly on outlining the minimal capacity standards and specific

content that should be included in an informed consent for

treatment agreement. The IAMFC Ethical Codes (2012), for

example, state,

Members inform clients (in writing if feasible) about the goals

and purpose of counseling, qualifications of the counselor(s),

scope and limits of confidentiality, potential risks and benefits

320 The Family Journal: Counseling and Therapy for Couples and Families 21(3)

of the counseling process and specific techniques and interven-

tions, reasonable expectations for outcomes, duration of

services, cost of services, and alternative approaches. (p. 2)

Determining and specifically defining the identified client to

all family members (e.g., the minor, a parent, the family as a

whole), obtaining informed consent as early as possible in the

treatment relationship, and clarifying the limitations of confi-

dentiality among family members are other specific areas of

focus considered by the IAMFC, AAMFT, ACA, and APA

guidelines. Although these guidelines can be helpful for pro-

moting good practice, they are mostly silent when it comes

to working with high-conflict parents and their children—other

than to encourage clinicians to avoid the ‘‘dual-role’’ situation

of serving as both a treating clinician and a forensic evaluator

(American Association for Marriage and Family Therapy,

2010[AAMFT]; APA, 2010).

The AFCC Guidelines for Court-Involved Therapy (2010) is

an excellent resource available to clinicians seeking more spe-

cific ethical guidelines for treating minors of high-conflict par-

ents. The AFCC Guidelines offer a wealth of information for

clinicians beyond what can be summarized in the limited space

here. Most pertinent to the present discussion are the recom-

mendations pertaining to the acquisition of informed consent

for treatment of minors in cases where court involvement is

likely to occur or has already occurred. Specifically, these

AFCC guidelines recommend that court-involved therapists

or ‘‘CITs’’ take the following important steps: the ‘‘CIT’’ (a)

avoids accepting a child into treatment without notifying both

parents, (b) requests copies of court orders or custody judg-

ments documenting each parent’s right/authority to make deci-

sions regarding treatment and delineation of each parent’s

access to treatment recommendations, (c) discusses the limits

of parental involvement and confidentiality with the parents

or guardians of a child or adolescent involved in treatment, and

(d) defers commencement of services and refers the client back

to the referring agency or court for clarification if a parent does

not sign the informed consent, or otherwise has significant

disagreements with the treatment process.

While the AFCC (2010) believes the default position of

clinicians when treating court-involved minors and families

should be to obtain the informed consent of both parents prior

to commencing treatment, exceptions are identified. Specifi-

cally, guideline 6.2(c) states,

In rare and urgent cases, such as when there is strong reason to

suspect a risk to a child’s safety, a CIT may accept a child in

treatment at the request of one parent. This should only occur

if that parent has clear legal authority to consent and pending

efforts to either notify the other parent or obtain permission

from the Court; however, the CIT should be aware that such

a decision may increase risk to the child, and to the CIT. (p. 15)

Clinicians should not view the above guideline as a sanction to

treat minors with the consent of only one parent in these cases.

Rather, it seems that the intent here is to prevent children in

high distress and/or where there are safety concerns from

experiencing a delay in treatment due to unpredictable and/or

time-consuming efforts required to locate and obtain informed

consent from the second parent. An effort to obtain informed

consent of a second parent, however, is assumed to take place

at the time treatment commences. In fact, in cases where the

clinician is asked by one parent to treat a minor when the other

parent refuses consent and the minor is presumably not in

crisis, the AFCC believes, ‘‘the therapist should refer the par-

ties back to the Court for resolution of the dispute between the

parents, and then proceed as the Court directs’’ (AFCC, 2010,

p. 16). The APA Practice Organization (2011) holds a similar

view regarding the need for dual parental consent, explicitly

advising clinicians to request informed consent of both parents

in cases where he or she is ‘‘initiating treatment of children in

high-conflict families or in instances where parents are under-

going separation or divorce’’ (p. 3). Other experts strongly

agree with this position (Hecker & Sori, 2010; Koocher,

2008; Tyson et al., 2004).

The AFCC guidelines (2010) also support the premise that

clinicians are responsible for understanding ‘‘the variety of

mechanisms through which court involved families can enter

treatment’’ (p. 5). The reality is that some parents involved in

a high-conflict divorce seek treatment for a minor in an effort

to improve his or her position in a court case (Doolittle &

Deutsch, 1999). It is arguable that a clinician has an ethical obli-

gation to explain the reasons why the involvement of the both

parents in treatment is most often indicated and to minimally

investigate the accuracy of the referring parent’s claims in cases

where one parent is initially resistant to involving the another

parent while citing reasons such as a poor parent–child relation-

ship on the part of the other parent, an unfavorable view of ther-

apy on the part of the other parent, or that the other parent ‘‘does

not care’’ or has been neglectful of the child. In these situations,

a clinician may wish to offer to contact the other parent in an

effort to secure their support and to assess the accuracy of the

referring parent’s concerns.

Clinical Considerations

Arguments for Including Both Parents in the Informed Consent

Process. Regardless of whether a law exists mandating the informed consent of both parents in cases where parents share

legal custody, there is universal agreement in the field that

sound ethical practice dictates a good faith effort to obtain con-

sent from both parents (AFCC, 2010; Bennett et al., 2006;

Hecker, 2010). However, the specific indications for obtaining

consent from both parents may not be inherently obvious to

clinicians working with this population. By extension, if

clinicians are unclear as to the rationale for obtaining informed

consent from both parents, it may be difficult to convince a

parent who is resistant to including the other parent that this

condition is warranted. This may be even further complicated

in cases where there is no law that explicitly requires informed

consent from both parents. It is also important to note these

Shumaker and Medoff 321

principles serve the best interest of the child under circum-

stances in which one parent has sole legal custody and the other

parent, although not legally entitled, is offered the opportunity

to provide assent for therapeutic intervention. Thus, a discus-

sion of the rationale behind including both parents in the

informed consent/assent process follows.

Bennett and colleagues (2006) note that a failure to include a

parent in the informed consent and treatment process could

convey the message to the minor that the other parent is not to

be trusted. By not giving a parent an opportunity to consent to

treatment, the implicit message conveyed to the minor is that lit-

tle faith exists that the parent in question will act in the minor’s

best interests if aware of this medical decision. Legitimate

concerns can be raised regarding the actions of a clinician truly

reflecting a minor’s best interest if they subscribe to the unilat-

eral narrative presented by the referring parent without at least

minimally assessing the accuracy of that narrative and without

minimally exploring the parents’ capacity to reach a consensus

regarding the treatment process. For example, if the referring

parent’s negative view of the other parent is not accurate, then

the therapist in such a case is arguably complicit in perpetuating

a negative and distorted view of the other parent. Under such

circumstances, any clinician would be hard pressed to demon-

strate adherence to the ethical decision making principles of ben-

eficence and nonmaleficence (Beauchamp & Childress, 2001).

Perhaps less obvious, but arguably more destructive for minors

in cases where therapy is undertaken with the consent of only

one parent, is the child being required to keep therapy ‘‘a secret’’

from the other parent. While minors of high-conflict parents

often struggle with divided loyalties, the ‘‘push-pull’’ dynamics,

and possible secrets that exist between parents, it is likely coun-

tertherapeutic to have the foundation of their individual therapy

experience rest on a secret they are either explicitly or implicitly

asked to keep.

The time of referral also represents an opportunity for a clin-

ician to help ‘‘de-triangulate’’ parents in conflict by mandating

that they both participate in the treatment process (Hecker,

2010). If clinicians accept at face value a parent’s preference

to not include the other parent due to a history of parental con-

flict, perceived non-involvement, or negative influence of the

other parent, that clinician may perpetuate or even increase

the climate of distrust and conflict between the parents. In these

cases, within reason, the clinician may want to attempt to

demonstrate more faith in the parents’ ability to act in the min-

or’s best interests than the parents themselves have at the time

they present for therapy. When presenting a rationale for con-

joint informed consent from parents referring their child for

treatment who are initially hesitant or resistant to this process,

one may wish to specifically cite longitudinal research by

Ahrons (2007) that clearly demonstrates the positive impact a

cooperative co-parenting environment can have for the short-

term and long-term adjustment of minors. In the majority of

cases, one may find that parents who initially doubt their own

capacity to work productively together are, in fact, able to jointly

support their child’s therapy experience, and this unquestionably

leads to better treatment outcomes. If a minor is exposed to

tension or conflict between parents in the process of having them

involved in treatment, Ahrons (Psychotherapy.net, 1994) argues

that (a) the minor has likely seen similar and more intense con-

flict between the parents before in the home and (b) the conflict

or tension that does occur in the minor’s presence in therapy can

be more effectively managed, contained, and understood with

the aid of the treating clinician.

Another argument in favor of obtaining informed consent

from both parents is that in doing so, clinicians are more likely

to avoid receiving any type of ‘‘cease and desist’’ letter from

either the non-consenting parent or their legal counsel after

treatment has commenced. In any such circumstance, the

clinician who is operating from a risk management perspective

is strongly advised to immediately stop treatment and recom-

mend that the referring parent obtain a court order for treatment

(Bennett et al., 2006). Nevertheless, even if such an order can

be obtained, there will most likely be a disruption to the treat-

ment process. It may also create an unpleasant experience for

the minor who may have to explain and/or justify to a parent

why treatment was undertaken without his or her awareness.

A more likely potential outcome, however, is that the minor

will experience an immediate and premature termination of

therapy possibly resulting in feelings of abandonment, betrayal,

and unresolved emotions pertaining to clinical work that has

not adequately been addressed (Barnett, MacGlashan, &

Clarke, 2000). Such a negative formative experience in therapy

may also discourage a minor from pursuing mental health

services in the future.

Finally, in cases where parents of a minor are engaged in

high conflict, it is likely that the treatment experience will at

some point involve a discussion of the minor’s experience of

such parental acrimony. Even in cases where the referral ques-

tion may not directly pertain to an aspect of the divorce, separa-

tion or strained co-parenting dynamic, the minor’s feelings and

experience of the conflict will likely warrant at least minimal

attention in therapy—as these factors could represent a source

of stress related to the presenting concern. In circumstances

where the minor presents material that may benefit from

processing with one or both parents, any prognosis for positive

parental involvement in treatment would be guarded if the

parent in question were approached only after treatment has

already commenced. Further, a clinician would not want to

limit the scope of treatment or avoid potentially important ther-

apeutic concerns due to a hesitation or reluctance of including a

parent who has not previously consented to treatment. For these

combined reasons, therefore, it seems reasonable and clear that

any clinician working with minors of parents in high conflict

may wish to obtain informed consent from both parents.

Circumstances Where the Informed Consent of the Referring Parent

Alone May be Indicated. The decision to treat a minor of divorced or separated parents without the consent of both parents must be

carefully considered with the burden resting upon the clinician to

demonstrate why obtaining the informed consent of only one

parent is in the minor’s best interest. Clear documentation of the

322 The Family Journal: Counseling and Therapy for Couples and Families 21(3)

clinician’s thinking behind the decision and consultation with

colleagues would seem to be a necessary part of the decision-

making process from a risk management perspective (J. Young-

ren, personal communication, March 12, 2012). In states where

the law does not explicitly mandate joint informed consent of

parents for treatment of a minor, clinicians will have some

latitude in deciding who to involve in treatment. Clinical expe-

rience in combination with a review of the limited discussion

of this topic to date reveals at least four circumstances where

excluding a parent in the informed consent process may be

indicated.

One circumstance in which a clinician might consider treat-

ing a minor without informed consent from both parents is

when the referring parent produces a court order for treatment.

For example, when divorced or separated parents who share

custody differ in their view of a need for treatment and cannot

reach a conciliatory stance through informal discussions, a

clinician may advise the parent who seeks treatment to obtain

a court order for such treatment. The merits for and against pur-

suing treatment will then be thoroughly weighed by the court.

From a risk management perspective, a court order for treat-

ment will provide a solid foundation from which to embark

upon treating a minor in the absence of consent from both

parents (Bennett et al., 2006). However, under these circum-

stances, the minor is at risk of experiencing a strained or neg-

ative treatment experience if the non-consenting parent is

forced to grudgingly accept the court’s decision. In these cases,

the clinician must carefully weigh the benefits of obtaining

treatment against the risk of pursuing treatment without the full

support of both parents (Bennett et al., 2006).

A second circumstance in which treating a minor without

the informed consent of both parents might occur are cases

where there is a history of abuse and/or neglect. By definition,

a parent who is abusive or neglectful is not acting in the best

interest of their child. These parents may therefore forfeit the

right to provide consent for the minor’s treatment by virtue

of their abusive and/or neglectful parenting behaviors (Kuther,

2003). This is not to suggest that family therapy designed to

improve parenting skills and/or to address ruptures between

caretakers and minors due to abuse or neglect may not be help-

ful or indicated. To the contrary, these efforts appear to hold

promise (Herschell & McNeil, 2007). However, potentially

re-traumatizing children who need treatment by forcing the

involvement of parent who has been abusive or neglectful and

whom the minor fears seems contrary to the ethical principles

of nonmaleficence and beneficence (Beauchamp & Childress,

2001). While clinicians in these situations are advised to obtain

documentation of abuse (e.g., a copy of a family services

evaluation where abuse is supported), such formal documenta-

tion in these cases is often unavailable. Therefore, a clinician

must weigh the risks and benefits of providing or withholding

treatment under these circumstances, and any ultimate decision

regarding how to proceed would require sufficient case file

documentation to protect the clinician’s decision-making

process and defend it if necessary. Peer consultation with a pro-

fessional of equal or more education, training, and experience

may also provide additional protection for the clinician from a

legal risk management perspective.

Another situation that occurs with some frequency is when

parents share legal custody but, in practice, only one parent has

been involved in caretaking decisions for an extended period of

time following the divorce. These situations often occur when a

parent relocates to another state or country following a divorce

or separation. Braver, Ellman, and Farbricius (2003) have

documented a range of negative effects that parental relocation

can have upon the quality of relations between parents and

children when they are separated by considerable geographic

distance, and a loss of both ‘‘social capital’’ (i.e., social sup-

ports of relatives and friends) and resources frequently follows

(Austin, 2008). In these cases, a good faith effort to contact the

noncustodial parent to obtain consent is reasonable based on

the factors previously outlined. However, denying a minor

treatment due to a lack of responsiveness on the part of a non-

custodial parent may not be justified. Although claims made by

a referring parent and/or minor for not including the other

parent may include assertions regarding a lack of contact infor-

mation for the noncustodial parent, a lengthy absence of con-

tact with the noncustodial parent, allegations of alcohol or

substance abuse on the part of the noncustodial parent, or a lack

of knowledge regarding the whereabouts of the other parent,

the most ethical approach in reaching each decision to provide

treatment should be made on an individual basis with careful

consideration afforded to the need for treatment, reasons for

referral, and both the maturity-level and expressed preferences

of the minor.

Another situation in which a clinician might consider

providing treatment to a minor without informed consent from

both parents is when a minor refuses to obtain treatment if the

noncustodial parent is in fact informed and/or included, and the

minor is in sufficient distress or crisis to necessitate interven-

tion. In such circumstances, minors may report previous treat-

ment failures involving the noncustodial parent and/or a history

of malignant parental involvement in the minor’s scholastic,

medical, and/or extracurricular pursuits. Parents engaged in

chronic and acrimonious conflict may also have a personality

disturbance that directly contributes to the negative co-

parenting climate (Lebow & Uliaszek, 2010). While one might

question the motivation for a parent to engage in such a disrup-

tive pattern of behavior while continuing to share legal custody

of the minor, many families do not possess the financial

resources to litigate disputed custody matters in court. Ques-

tions arise under such circumstances regarding the propriety

of a clinician’s refusal to treat a minor in need of treatment due

to a concern regarding legal liability and/or the potential filing

of a licensing complaint generated by the noncustodial parent.

In the case where there is a legal mandate to obtain informed

consent of both parents, referring the matter back to court for

resolution seems the most prudent course of action. But

circumstances can be more ambiguous for clinicians in states

where no such mandate exists. At a minimum, clinicians who

choose to treat a minor in these circumstances should clearly

document the reasons for pursuing the course of action and

Shumaker and Medoff 323

consult with colleagues, guidelines of professional organiza-

tions, and/or state licensing boards regarding the best course

of action. In most states, however, a precedent likely exists

whereby a medical care provider may treat a minor in a circum-

stance where requiring parental consent would discourage the

minor from receiving treatment (Behnke & Hilliard, 1998).

Decision-Tree Model and General Recommendations

This article has attempted to illustrate the potential complexity

of obtaining informed consent for the treatment of minors

whose parents are engaged in high conflict. As Figure 1 demon-

strates, referrals can originate from a variety of sources and

initial responses from clinicians to requests for treatment are

variable and critical. Several ethical, legal, and clinical consid-

erations factor into decisions of whether it is in the minor’s best

interest to accept a particular referral and, if so, who should

provide consent for any potential treatment. A lack of foresight

and awareness of the challenges inherent in working with this

population will likely not form the basis of a sufficient defense

against licensing complaints, civil liability, and client dissatis-

faction with treatment. As is the case in virtually all challen-

ging and rewarding treatment experiences, a substantial

amount of the decision-making process will rely upon the

clinician’s judgment and ethical sensibilities.

As is described above, there are no simple answers or ‘‘rules

of thumb’’ to be applied to the complex referrals stemming

from high-conflict families. However, clinicians may wish to

rely on the following decision-tree model as a framework for

reaching ethically, legally, and clinically sound decisions

pertaining to an informed consent process that is ultimately

aimed at securing the minor’s best interest. Beyond this over-

arching aim, it is hoped that the recommendations listed below

will lead to better treatment outcomes. Clinicians may wish to

consider the following:

� At the time of referral, clarify the legal and physical custody status in addition to the specific referral con-

cerns. Pay specific attention to the referring parent’s dis-

position toward the noncustodial parent and, more

Primary Physical Custodian

Minor or Minor’s Attorney

Court Referred

Clarify Legal Custody/ Explain Importance of Joint Parental Consent/As sent

Clarify Custody/ Obtain Copy of Court Order

Clarify Custody and Emancipated Status

Obtain joint parental consent/assen t and minor assent

Consider state joint informed consent laws

Referral Question?

Crisis- Emergency Status?

Abuse History?

Age of Minor?

Maturity of Minor?

Level of co- parenting conflict and/or differing parental perspectives on treatment?

Treatment History?

Minor refusal to seek treatment if non-custodial parent involved?

Non-responsive noncustodial parent?

Consider state emancipati on and “mature minor” laws

Obtain consent of referring parent and minor assent*

Obtain minor consent only*

Refer back to court/ Do not accept referral*

Referral Source

Initial Clinician Responses

Consider Minor

Treatment Preferences

Legal Considerations

Key Ethical/Clinical Considerations

Disposition

Consider Confidentialit y/Privileged

Communicati on laws

Figure 1. Decision-tree model for obtaining informed consent for treating minors of parents engaged in high conflict. *Special clinical circumstances.

324 The Family Journal: Counseling and Therapy for Couples and Families 21(3)

specifically, the referring parent’s openness to including

the noncustodial parent in the informed consent and

treatment process. Be prepared during the initial contact

to provide a rationale for why informed consent from

both parents is typically indicated. Include in your out-

patient services agreement your default position of

obtaining informed consent from both of divorce/sepa-

rated parents when working with minors.

� In cases where the referring parent and/or minor resists including the noncustodial parent in the informed con-

sent and treatment process, carefully assess the reasons

for this resistance and politely but firmly challenge

rationales for exclusion that appear to fall short of the

exceptions previously outlined. Obtain appropriate

documentation of legal custody status, court orders for

treatment, and, if indicated, abuse/neglect. Be prepared

to make a good faith effort to contact a noncustodial par-

ent who may have relocated or historically been less

involved in medical decision making. Document these

efforts in the case file. Avoid the temptation to initiate

treatment prior to contacting the other parent unless the

minor is in crisis and in need of urgent care. Remain

open to referring the matter back to court for

clarification and/or a court order for treatment.

� In cases where the clinician considers providing treat- ment with the informed consent of only one parent or the

minor alone, consult with colleagues and experts in the

field before embarking on this course of action. Clearly

document these consultations and reasons for pursuing

this course of action in the case file.

Elements of Figure 1 are exemplified in the case narrative that

follows. Jonathan Smith is a 15-year-old male of divorced

parents who was referred by his mother for individual outpatient

counseling. Mrs. Smith reported Jonathan had been experiencing

frequent episodes of acute anxiety including panic attacks char-

acterized by dizziness, shortness of breath, elevated heart rate,

and a fear of dying. Jonathan had been experiencing panic

attacks for the past 3 months following his parents’ divorce

resulting in an intermittent inability to attend school for up to

2 days at a time. Upon clarifying legal and physical custody

status, Mrs. Smith acknowledged a marital history characterized

by high conflict, frequent arguing, and differences in parental

decision making. She indicated that she shared legal custody

with her ex-husband, Mr. Smith, although her son’s primary resi-

dence was in her home. When describing the custody of her son,

Mrs. Smith expressed a strong preference to not involve her

ex-husband in the intake and informed consent process. Upon

inquiry into Mrs. Smith’s rationale, she reported ongoing obsta-

cles in communication with her ex-husband as well as notable

level of ongoing hostility on his part. She also cited ongoing

difficulties in Mr. Smith’s relationship with Jonathan character-

ized by emotional volatility, an authoritarian parenting style, and

disparagement of the mother. In response, Mrs. Smith was

informed of the general expectation and value of including

Mr. Smith in the informed consent process. This conversation

included reference to several important principles described

above such as (a) communicating to the child a level of trust

between parents, (b) avoiding the creation of secrecy among

family members, (c), creating an attempt to defuse potential

additional parental conflict, (d) combining support of both

parents serving the child’s best interests relevant to treatment

outcome, (e) facilitating an attempt to avoid premature termina-

tion, and (f) providing the child with the opportunity to be more

open and to more fully discuss areas of concern. As a result of

this discussion Mrs. Smith, although reluctant to initiate contact

herself, provided full contact information of her ex-husband.

Mr. Smith was contacted and agreed to consent to treatment after

a detailed discussion regarding informed consent and the princi-

ples described above. The next step involved seeking assent

from Jonathan for his involvement in treatment. During this con-

versation, similar considerations were discussed with an empha-

sis on Jonathan’s autonomy and the value of his involvement in

treatment while avoiding the emotional burden of a loyalty bind.

Armed with both a framework for assessing referrals and a

keen grasp of the complexities associated with treating minors

of parents engaged in high conflict, perhaps more clinicians

will be open to working with this population. While it may

be easier for a clinician to simply refuse to treat these most

challenging families, the opportunity to help a minor and

family through an extremely difficult period can be extremely

rewarding and beneficial to all.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to

the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, author-

ship, and/or publication of this article.

Note

1. In Massachusetts, minors obtain emancipated status through an

order of the Probate and Family Court.

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