Gov. Jared Polis’ Executive Order D 2020 045, which allows for the performance of voluntary…
On May 16, 2019, Colorado lowered the age of consent for outpatient psychotherapy services from 15 years to 12 years old. This new law is intended to help minors who are hesitant to discuss their mental health with parents or legal guardians to obtain outpatient psychotherapy services before they reach a crisis level. It is currently codified at C.R.S. § 12-43-202.5 and became effective immediately.
The law does not impact the age of consent for inpatient psychotherapy services.
Mental health professionals need to carefully track the requirements of this law when providing outpatient psychotherapy services to minors age 12 and older. Although this new law is silent as to the minor’s ability to restrict access to his or her psychotherapy records, it does identify parameters important to its application:
- A minor 12 years of age or older may seek and obtain outpatient psychotherapy services without the consent of a parent or guardian, if the mental health professional determines both that:
- the minor is knowingly and voluntarily seeking such services; and
- the provision of psychotherapy services is clinically indicated and necessary to the minor’s well-being.
- A parent or legal guardian may be notified about the psychotherapy services only with the minor’s consent (or that of a court-appointed legal guardian) unless notification would be inappropriate or detrimental to the minor’s care or treatment.
- A parent or legal guardian may be notified without the minor’s consent if, based on professional opinion, the minor is unable to manage his or her care or treatment.
- The mental health professional must discuss with the minor the importance of involving and notifying the minor’s parent or legal guardian and must encourage such notification.
- The mental health professional must document and keep in the clinical record any attempt to contact the minor’s parent or legal guardian, or alternatively, the reason why it would be inappropriate to contact the minor’s parent or legal guardian.
The minor’s clinical record must contain a written statement signed by the minor indicating that he or she is voluntarily seeking psychotherapy services.
- Any “intent to commit suicide” communicated by the minor during outpatient psychotherapy services requires notification to the minor’s parent or legal guardian about the minor’s “suicidal ideation.” Furthermore, for minors who communicate “a clear and imminent threat” to inflict serious bodily harm on themselves or others, professionals are still subject to the duty to warn and notification requirements, currently codified at C.R.S. § 13-21-117. Mandatory reporting requirements concerning child abuse or neglect as required by C.R.S. § 19-3-304 remain unchanged.
Because this is a new law, there is little guidance or interpretation regarding its scope or implementation into the practice of Colorado’s mental health professionals. If you have any questions regarding the provision of mental health services in accordance with this new law, or if you need assistance developing new policies, procedures, or forms to help ensure compliance with this new law, please do not hesitate to reach out to one of Caplan and Earnest’s healthcare attorneys.
Special thanks to Leah Travis, Law Clerk, for her contributions to this post.