Florida’s mental health treatment providers, and their professions’ corresponding statutory informed consent requirements, include:
|Mental Health Provider||Informed Consent References|
|Psychiatrist licensed under Chapter 458 or 459, Florida Statutes||Section 458.325(1), Florida Statutes provides, for electroconvulsive or psychosurgical procedures, prior written consent shall be obtained after disclosure to the patient, if he or she is competent, or to the patient’s guardian, if he or she is a minor or incompetent, of the purpose of the procedure, the common side effects thereof, alternative treatment modalities, and the approximate number of such procedures considered necessary and that any consent given may be revoked by the patient or the patient’s guardian prior to or between treatments. Grounds for denial of a license or disciplinary action under Sections 458.331(1)(u), 459.015(2)(y), and 490.009(1)(q), Florida Statutes include performing any procedure or prescribing any therapy which, by the prevailing standards of medical practice in the community, would constitute experimentation on a human subject, without first obtaining full, informed, and written consent.|
|Under Chapter 491, Florida Statutes Licensed Mental Health Counselor, Licensed Clinical Social Worker, or Licensed Marriage and Family Therapist||Section 491.009(1)(q) states grounds for denial of a license or disciplinary action include, “Performing any treatment or prescribing any therapy which, by the prevailing standards of the mental health professions in the community, would constitute experimentation on human subjects, without first obtaining full, informed, and written consent.”|
|Licensed and certified psychiatric advanced registered nurse practitioner (ARNP) under Chapter 464, Florida Statutes, with a master’s degree or doctorate in psychiatric nursing or mental health nursing and two years post-master’s clinical experience under the supervision of a physician.||Chapter 464, Florida Statutes (Florida Nurse Practice Act) Chapter 64B9, Florida Administrative Code (Rules adopted by the Board of Nursing)|
|Community Mental Health Center or Clinic as defined in Section 394.455(9), Florida Statutes or a public or private mental health agency eligible to provide mental health services under Chapter 394, Florida Statutes, that, through employment, contract, subcontract or agreement, provides mental health services in a Department of Juvenile Justice facility or program.||
Under the Florida Mental Health Act or The Baker Act, section 394.455(16) defines “Express and informed consent” to mean “consent voluntarily given in writing, by a competent person, after sufficient explanation and disclosure of the subject matter involved to enable the person to make a knowing and willful decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.”
Under section 394.459(3)(a)1, Florida Statutes, each patient entering treatment “shall be asked to give express and informed consent for admission or treatment.” “If the patient has been adjudicated incapacitated or found to be incompetent to consent to treatment, express and informed consent to treatment shall be sought instead from the patient’s guardian or guardian advocate.”
“If the patient is a minor, express and informed consent for admission or treatment shall also be requested from the patient’s guardian. Express and informed consent for admission or treatment of a patient under 18 years of age shall be required from the patient’s guardian, unless the minor is seeking outpatient crisis intervention services under s. 394.4784. Express and informed consent for admission or treatment given by a patient who is under 18 years of age shall not be a condition of admission when the patient’s guardian gives express and informed consent for the patient’s admission pursuant to s. 394.463 or s. 394.467.”
Before giving express and informed consent, the following information shall be provided and explained in plain language to the patient, or to the patient’s guardian if the patient is 18 years of age or older and has been adjudicated incapacitated, or to the patient’s guardian advocate if the patient has been found to be incompetent to consent to treatment, or to both the patient and the guardian if the patient is a minor: the reason for admission or treatment; the proposed treatment; the purpose of the treatment to be provided; the common risks, benefits, and side effects thereof; the specific dosage range for the medication, when applicable; alternative treatment modalities; the approximate length of care; the potential effects of stopping treatment; how treatment will be monitored; and that any consent given for treatment may be revoked orally or in writing before or during the treatment period by the patient or by a person who is legally authorized to make health care decisions on behalf of the patient.
(b) In the case of medical procedures requiring the use of a general anesthetic or electroconvulsive treatment, and prior to performing the procedure, express and informed consent shall be obtained from the patient if the patient is legally competent, from the guardian of a minor patient, from the guardian of a patient who has been adjudicated incapacitated, or from the guardian advocate of the patient if the guardian advocate has been given express court authority to consent to medical procedures or electroconvulsive treatment as provided under s. 394.4598.
Minors At Least 13-years-old: Outpatient diagnosis, evaluation, crisis intervention, therapy, and counseling
Section 394.4784, Florida Statutes allows a minor age 13 years or older who experiences an emotional crisis to such degree the child perceives needing professional help, may request, consent to, and receive (a) mental health diagnostic and evaluative services or (b) outpatient crisis intervention services including individual psychotherapy, group therapy, counseling, or other forms of verbal therapy, provided by a licensed mental health professional, as defined by Florida Statutes, or in a mental health facility licensed by the state.
Such Services Exclude Medication, Somatic Methods, Aversive Stimuli, and Substantial Deprivation
The purpose of such services shall be to determine the severity of the problem and the potential for harm to the person or others if further professional services are not provided.
Outpatient diagnostic and evaluative services or outpatient crisis intervention services shall not include medication and other somatic methods, aversive stimuli, or substantial deprivation. Such services shall not exceed two visits during any 1-week period in response to a crisis situation. For further services, parental consent is required, and may include parental participation when the mental health professional or facility determines it to be appropriate.
Compare With Informed Consent to Medical Care
Consider informed consent to “medical” care for a minor child. The court in Angeli v. Kluka, 190 So. 3d 700 (Fla. 1st DCA 2016) held consent by one parent to a non-emergency medical procedure will permit the health care provider to render such care or treatment. That’s true even when the provider knew or should have known the other parent objected to the care or treatment.
Angeli v. Kluka – One Parent’s Informed Consent is Enough
In Angeli, a surgeon performed adenoid and ear-tube surgery on 3-year old child with mom’s consent. But dad objected. Mom and dad were separated. Their divorce action was pending. Both parents had equal custody rights to their children.
The Angeli court wrote:
No Florida statute requires that a health care provider obtain consent from both parents or from more than one among multiple people who are authorized to give consent for medical care of a minor. Each time the issue is addressed, directly or indirectly, the statutes authorize a singular person with valid legal authority to consent to the provision of medical care or treatment to a minor. To require consent from both parents would require us to add words to the statutes, which we are not at liberty to do.
Like the statutes addressing consent to medical care of a minor, the limited analogous Florida case law indicates that one parent’s consent is sufficient. See O’Keefe v. Orea, 731 So.2d 680, 686 (Fla. 1st DCA 1998) (noting parent’s (singular) right to consent and to be fully informed); Ritz v. Fla. Patients’ Comp. Fund, 436 So.2d 987, 989 (Fla. 5th DCA 1983) (“[T]he right to consent to medical or surgical treatment resides in the parent (singular) who has the legal responsibility to maintain and support such (incompetent adult) child.”).
Angeli, 190 So. 3d at 702.
Angeli doesn’t say if a temporary or other parenting plan was in place. But the likelihood is, with the divorce pending, a final parenting plan wasn’t in place.
O’Keefe v. Orea
The Angeli court cited the sad facts of a malpractice case, O’Keefe v. Orea, 731 So. 2d 680 (Fla. 1st DCA 1998). The parents’ mentally deteriorating son went to a psychiatrist for treatment. The doctor concluded the child suffered from depression and prescribed antidepressants and counseling. The son attacked his brother, teacher, and coach. The doctor admitted him on an emergency basis to Baptist Medical.
The child’s psychotic behavior got worse. Four days after the doctor discharged the son from the hospital, the child attacked his mom and killed his dad. The trial court dismissed her malpractice complaint against the doctor. She alleged he doctor had a duty to warn her about her son’s condition, volatile behavior, and prognosis.
The appellate court concluded the case against the doctor for failure to warn the mother about the son could move forward. The court reasoned, in conjunction with a parent’s duty to support a child through the age of majority is the parent’s right to consent to medical treatment for a child.
The court inferred from that right to consent, the parent’s additional right, “to be fully informed concerning the child’s condition and prognosis” and a duty on the doctor’s part to give the parent that information.
The O’Keefe court wrote:
The law imposes a duty upon a parent to support a child until that child attains majority. In conjunction with that parental duty, the right to consent to medical treatment for a child resides in the parent who has the legal responsibility to maintain and support the child. Ritz v. Florida’s Compensation Fund, 436 So.2d 987, 989 (Fla. 5th DCA 1983).
May One Parent Consent to Mental Health Treatment?
There appears to be no Florida case that applies the above precedent in the medical consent context to “mental health treatment.” But the case opinions are sound and the Florida statutes – particularly section 61.13(2)(b)3 – support accepting consent to mental health treatment from one parent with parental responsibility, not requiring consent from two.
Unilateral Consent to Child’s Mental Health Treatment is a Parenting Plan Requirement
A parenting plan that provides for shared parenting, but doesn’t provide for either parent to consent to their child’s mental health treatment, is legally deficient. The court reaffirmed this principle in Hernandez v. Mendoza, Case No, 4D21-1866 (Fla. 4th DCA Jun 22, 2022). A parenting plan provided for shared parental responsibility over health care decisions. But, because it failed to provide that either parent could consent to mental health treatment for the children, the appellate court sent it back to the trial court to fix. See also Scudder v. Scudder, 296 So. 3d 426 (Fla. 4th DCA 2020).
Therefore, it appears, after a Florida mental health professional verifies a parent has sole or shared parental responsibility for mental health decisions for a child patient, the professional may rely on section 61.13(2)(b)3, Florida Statutes and accept that parent’s consent to mental health treatment as sufficient. The mental professional has no obligation to await consent from the other parent.
Still, getting consent from both parents may be better for the child.
Involving Both Parents May Achieve Better Clinical Outcomes.
One parent’s consent to mental health treatment may be legally sufficient. Yet, by listening to and getting valuable information from both parents, addressing their fears, and planning and tailoring treatment, medication, management, and family therapy to benefit the child, mental health practitioners may achieve better clinical outcomes. See Mossman D, Weston CG, Divorce, custody, and parental consent for psychiatric treatment, 7 Current Psychiatry, No. 8 63-67 (August 2008).