Mental Health Services

Since mental health is not specifically indicated within the current MMR, this could be considered a constraint.¹⁰⁶ As the statutory text indicates, MMR in Massachusetts does not cover consent to mental health services, unless one considers mental health to be part of medical care.¹⁰⁷ Nevertheless, the LO found a regulation by the Department of Mental Health pertaining to mature minors:

• "Throughout 104 CMR, there are instances where the rights of emancipated or mature minors may be relevant. The regulations do not attempt to identify them. However, where, by operation of law pursuant to M.G.L. c. 112, §§ 12E or 12F, a minor is an emancipated minor entitled to consent to drug or medical or dental treatment and is competent to do so, he or she shall be entitled to consent in the same manner as an adult. Further, a facility or program may determine, pursuant to applicable Massachusetts law, that a minor is a mature minor and is therefore able to provide consent to treatment and may decide, in certain circumstances, not to notify the parents. Such determinations should be made by facilities and programs in consultation with their legal counsel." (emphasis added)¹⁰⁸

Ostensibly, this mental health regulation falls under the auspices of a general medical care definition for youths seeking treatment. However, because of the vague language, it leaves available a broad spectrum for interpretation and possible litigation. A recommendation for the Massachusetts legislature would be to either explicitly provide for mental health for youths in the MMR, or draft an additional statute that could be utilized by providers seeking to help youths needing mental health care who have not yet achieved the age of majority. As this regulation has not been challenged it could be utilized by mental health care providers to allow mental health treatment of minors without parental consent. The LO recommends that JRI publicize this regulation to mental health care providers in an effort to educate them, since health care providers may be unaware of the regulation.¹⁰⁹ In addition, this regulation could be included in a packet that JRI sends to providers. However, one strategy may include not advertising the regulation to legislators since it has not yet been challenged establishing precedent. Therefore, it might not be prudent to call attention to it.

Footnotes

...¹⁰⁶

Interview with Genny Price, supra n. 75.

...¹⁰⁷

However, other states maintain separate statutes or use explicit language to express ability to consent to mental health care. See e.g., infra State Research Section, Michigan, Mich. Comp. Laws § 330.1707 (2001), Mich. Comp. Laws § 330.1498d (2001), and Washington, Wash. Rev. Code Ann §70.34.042 (2002).

...¹⁰⁸

104 Code Mass Regs. 25.04 (2002).

...¹⁰⁹

See Interview with Genny Price, supra n. 75.