(1)Existing law authorizes a minor who is 12 years of age or older and is alleged to have been raped, or a minor who is alleged to have been sexually assaulted, to consent to medical care related to the diagnosis and treatment of the condition and the collection of medical evidence with regard to the alleged rape or sexual assault.

This bill would authorize a minor who is 12 years of age or older and who states he or she is injured as a result of intimate partner violence, as defined, to consent to medical care related to the diagnosis or treatment of the injury and the collection of medical evidence with regard to the alleged intimate partner violence. The bill would specify that this provision would not apply to a case in which a minor is an alleged victim of rape or is alleged to have been sexually assaulted, in which case the above-described provisions would apply.

(2)Existing law requires a health practitioner who works in a certain type of health facility and provides medical services for a patient he or she knows or reasonably suspects is suffering from an injury caused by a firearm or assaultive or abusive conduct to make a report to a local law enforcement agency about the patient and the extent of the injuries.

This bill would require a health practitioner that believes a report is required pursuant to these provisions, when providing treatment to an above-described minor injured as a result of alleged intimate partner violence, to inform the minor that the report will be made and attempt to contact the minors parent or guardian and inform him or her of the report, except as specified.

(1)Existing law authorizes a minor who is 12 years of age or older and is alleged to have been raped, or a minor who is alleged to have been sexually assaulted, to consent to medical care related to the diagnosis and treatment of the condition and the collection of medical evidence with regard to the alleged rape or sexual assault.

This bill would authorize a minor who is 12 years of age or older and who states he or she is injured as a result of intimate partner violence, as defined, to consent to medical care related to the diagnosis or treatment of the injury and the collection of medical evidence with regard to the alleged intimate partner violence. The bill would specify that this provision would not apply to a case in which a minor is an alleged victim of rape or is alleged to have been sexually assaulted, in which case the above-described provisions would apply.

(2)Existing law requires a health practitioner who works in a certain type of health facility and provides medical services for a patient he or she knows or reasonably suspects is suffering from an injury caused by a firearm or assaultive or abusive conduct to make a report to a local law enforcement agency about the patient and the extent of the injuries.

This bill would require a health practitioner that believes a report is required pursuant to these provisions, when providing treatment to an above-described minor injured as a result of alleged intimate partner violence, to inform the minor that the report will be made and attempt to contact the minors parent or guardian and inform him or her of the report, except as specified.

(1)Existing law authorizes a minor who is 12 years of age or older and is alleged to have been raped, or a minor who is alleged to have been sexually assaulted, to consent to medical care related to the diagnosis and treatment of the condition and the collection of medical evidence with regard to the alleged rape or sexual assault.

This bill would authorize a minor who is 12 years of age or older and who states he or she is injured as a result of intimate partner violence, as defined, to consent to medical care related to the diagnosis or treatment of the injury and the collection of medical evidence with regard to the alleged intimate partner violence. The bill would specify that this provision would not apply to a case in which a minor is an alleged victim of rape or is alleged to have been sexually assaulted, in which case the above-described provisions would apply.

Existing law authorizes a minor who is 12 years of age or older and is alleged to have been raped, or a minor who is alleged to have been sexually assaulted, to consent to medical care related to the diagnosis and treatment of the condition and the collection of medical evidence with regard to the alleged rape or sexual assault.

This bill would authorize a minor who is 12 years of age or older and who states he or she is injured as a result of intimate partner violence violence, as defined, to consent or decline to consent to medical care related to the diagnosis or treatment of the injury and the collection of medical evidence with regard to the alleged intimate partner violence. The bill would define intimate partner violence for these purposes and specifically exclude rape and sexual assault from its meaning. specify that this provision would not apply to a case in which a minor is an alleged victim of rape or is alleged to have been sexually assaulted, in which case the above-described provisions would apply.

Existing law generally authorizes commissioners of civil marriages, including retired and deputy commissioners of civil marriages, to solemnize a marriage. Existing law, imposes misdemeanor penalties on a commissioner of civil marriages who accepts money or other value for solemnizing a marriage, unless the marriage is solemnized on a Saturday, Sunday, or a legal holiday. Existing law also authorizes a commissioner of civil marriages to solemnize a marriage for reasonable compensation.

This bill would clarify that a commissioner of civil marriages may accept reasonable compensation for a marriage he or she solemnizes on a Saturday, Sunday, or a legal holiday.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 3189

Author:(Cooper)

As Amended Ver:May 30, 2018

Majority vote

Original Committee Reference: JUD.

SUMMARY: Allows minors to consent to medical care for injuries caused by intimate partner violence and imposes a number of requirements on health practitioners who provide care to them. Specifically, this bill:

1. Provides that a minor who is 12 years of age or older and who states he or she is injured as a result of intimate partner violence may consent to medical care related to the diagnosis or treatment of the injury and the collection of medical evidence with regard to the alleged intimate partner violence.
2. Requires a health practitioner providing treatment who believes that the acts causing the injuries to the minor constitute child abuse that must be reported to law enforcement pursuant to the health practitioner's duties as a mandated reporter of child abuse, to do the following:
   1. Inform the minor that the report will be made;
   2. Attempt to contact the minor's parent or guardian and inform them of the report;
   3. Note in the minor's treatment record the date and time of the attempt to contact the parent or guardian and whether the attempt was successful or unsuccessful.
3. Clarifies that a health practitioner providing treatment is not required to attempt to contact the minor's parent or guardian if the health practitioner reasonably believes that the parent or guardian committed the intimate partner violence.
4. Defines, for the purposes of this bill, the term "intimate partner violence" to mean an intentional or reckless infliction of bodily harm that is perpetrated by a person with whom the minor has or has had a sexual, dating, or spousal relationship.
5. Clarifies the requirements of the bill do not apply to a case in which the minor is an alleged victim of rape, as defined in Penal Code Section 261 or 262, in which case the provisions of Family Code Section 6927 shall apply, or in a case in which the minor is alleged to have been sexually assaulted, as described in Family Code Section 6928, in which case the provisions of that section shall apply.

The Senate amendments:

1. Narrow the definition of "intimate partner violence so that it only applies to intentional acts committed by persons with whom the minor has or has had a sexual, dating, or spousal relationship (rather than all persons who cohabitate with the minor).
2. Change the term "professional person" to "health practitioner."

FISCAL EFFECT: None

COMMENTS: This bill, sponsored by the California Association of California Sexual Assault Forensic Examiners (CalSAFE), seeks to ensure that minors between the ages of 12 and 17 years have the ability to consent to obtain medical care related to the diagnosis, treatment, and collection of medical evidence with regard to the crime of "intimate partner violence." According to the author, the fact that minors have the ability to consent to medical care for the treatment, diagnosis, and collection of evidence related to an alleged sexual assault, but not intimate partner violence, creates a dangerous loophole in existing law:

Current law allows a minor who is 12 years of age or older who have been sexually assaulted or raped to consent to a medical examination, treatment, and evidence collection for sexual assault without parental consent. Under the current family code, victims of intimate partner violence and/or strangulation, ages 12-17, are not permitted the ability to consent to a forensic medical exam without co-consent from a parent or legal guardian. This adds an additional layer of complication for this high risk victim population seeking help. Victims may choose not to get an examination due to fear of their parents or guardian finding out.

AB 3189 will remove the barriers for minors who have been assaulted from an intimate partner, making it easier for them to seek out medical and forensic medical care. Currently, if a minor has been abused by their significant other and if they want to get a medical examination, they would need to get parental consent. If a minor does not want their parents or guardians knowing about the assault, this disputed them from reaching out for help and medical attention that need and deserves.

Requirements and Prohibitions to Notification of a Minor's Medical Treatment to Parents or Guardians and Law Enforcement. As a general rule, health care providers are prohibited from sharing with any other person medical information about a minor who has the legal ability to consent to medical care without consent from the minor. (Health and Safety Code Sections 123110(a) and 123115(a)(1).) For example, state law prohibits a health care provider from informing a parent or legal guardian that the minor has obtained an abortion and allows the provider to share the minor's medical information with them only with signed authorization from the minor. (Ibid, Civil Code Sections 56.10 and 56.11.)

Likewise, a school district may not require students to obtain written parental consent prior to leaving school to receive confidential medical services. A school may not notify a parent when a student leaves school to receive confidential medical services. (87 Ops. Cal. Attorney General 168 (2004).) However, health care providers who treat minors and suspect the minor patient is a victim of child abuse are required, as mandated reporters, to report any such suspected abuse to law enforcement. (See Penal Code Sections 11166, 11167, and 11167.5.) The child abuse authorities investigating a child abuse report legally may then disclose to the parents that a report was made. (Ibid.)

In some cases, health care providers are either required to also notify the minor's parents about the report to law enforcement, or prohibited from doing so, depending on the age of the minor and the suspected offense. In general, the older the minor and the more serious the crime, the more rights the minor has to confidentiality and the fewer rights parents have to notification. For example, in the case of a minor who is 12 years of age or older and who may have been raped, the health care provider is not permitted to contact the minor's parent or guardian without the minor's written and signed consent. (Family Code Section 6927; Health and Safety Code Sections 123110(a), 123115(a)(1); Civil Code Sections 56.10, 56.11.) On the other hand, for a minor under the age of 12 years of age, the health care provider must attempt to contact the minor's parent or guardian and note in the minor's record the day and time of the attempted contact and whether the attempt was successful. (Family Code Section 6928.) There is no such requirement to notify a parent or guardian, however, when the treating health practitioner reasonably believes that the parent or guardian committed the assault. (Ibid.)

This Bill – Authorizes Consent by Minors to Medical Care Related to Intimate Partner Violence; Requires Notification When Violence Constitutes Child Abuse. This bill provides minors over the age of 12 with the specific authority to consent to obtain medical care related to the diagnosis, treatment, and collection of medical evidence with regard to the crime of "intimate partner violence."

This bill also requires the health practitioner providing treatment to the minor to attempt to contact the minor's parent or guardian in the event that the health practitioner determines that the assault appears to constitute child abuse. This provision is similar to the notification rule in current law about minors who are victims of sexual assault. Also, like those laws related to sexual assault, the amended bill provides an exception to the parental notification requirement when the health practitioner reasonably believes that the parent or guardian is the person who committed the intimate partner violence.

Finally, in order to ensure that the minor victim is informed about the mandated report to law enforcement, the bill imposes an additional requirement that the health practitioner inform the minor that the report has been made. Although this may be a best practice of many professionals who care for minors who are victims of suspected child abuse, it is not currently required by law.

In support of the bill, CalSAFE, writes that, "Under the current family code victims of intimate partner violence, ages 12-17, are not permitted to consent to medical care or a forensic medical exam without the co-consent from a parent or legal guardian." It continues that "AB 3189 is vitally important for this vulnerable population because it will introduce a clear definition of 'Intimate Partner Violence' and will permit minors, ages 12 and older, who have been victims of intimate partner violence, the right to consent or decline for a forensic medical exam."

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0003563

 THIRD READING  

Bill No: AB 3189

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 6/19/18

AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski

NOES: Moorlach, Anderson

ASSEMBLY FLOOR: 51-17, 4/26/18 - See last page for vote

SUBJECT:

SOURCE: California Association of California Sexual Assault Forensic Examiners

DIGEST:

This bill allows minors to consent to medical care for injuries caused by intimate partner violence and imposes a number of requirements on the health practitioners who provide care to them.

ANALYSIS:

Existing law:

1. Provides that a minor may consent to medical care related to the prevention or treatment of pregnancy, except sterilization. (Family Code Section 6925. All further statutory references are to this code, unless otherwise indicated.)
2. Provides that a minor may receive birth control without parental consent. (Section 6925.)
3. Prohibits a health care provider from informing a parent or legal guardian that the minor has obtained birth control and allows the provider to share the minor’s medical information with them only with signed authorization from the minor. (Health & Safety Code Sections 123110(a), 123115(a)(1); Civil Code Sections 56.10, 56.11.)
4. Provides that a minor may consent to an abortion without parental consent. (Section 6925.)
5. Prohibits the health care provider from informing a parent or legal guardian that the minor has obtained an abortion and allows the provider to share the minor’s medical information with them only with signed authorization from the minor. (Health & Safety Code Sections 123110 (a), 123115 (a)(1); Civil Code Sections 56.10, 56.11.)
6. Provides the following rules about a minor’s right to consent to medical care and notification of a minor’s parents relating to the minor obtaining medical services for specific sex-related offenses, depending on the age of the minor and the specific sex-related offense:
   1. Rape, sodomy, and oral copulation: regardless of the minor’s age, a minor may consent to medical care related to the diagnosis, treatment, and collection of medical evidence with regard to the rape, sodomy, or coral copulation. (Sections 6927, 6928.)
      1. In the case of a minor under the age of 12 years of age, the health care provider must attempt to contact the minor’s parent or guardian and note in the minor’s record the day and time of the attempted contact and whether the attempt was successful (unless the treating professional reasonably believes that the parent/guardian committed the assault). (Section 6928; Health & Safety Code Sections 123110 (a), 123115 (a)(1); Civil Code Sections 56.10, 56.11.)
      2. In the case of a minor 12 years of age or older who may have been raped may consent to medical care related to the diagnosis, but the health care provider is not permitted to contact the minor’s parent or guardian without the minor’s written and signed consent. (Health & Safety Code Sections 123110 (a), 123115 (a)(1); Civil Code Sections 56.10, 56.11.)
   2. Sexual assault other than rape: the minor, regardless of age, may consent to medical care related to the diagnosis, treatment, and collection of medical evidence with regard to the sexual assault; but the health care provider must attempt to contact the minor’s parent or guardian and note in the minor’s record the day and time of the attempted contact and whether it was successful (unless the treating professional reasonably believes that the parent/guardian committed the assault). (Section 6928.)
7. Defines “abuse” to mean any of the following, but not limited to the actual infliction of physical injury or assault:
   1. To intentionally or recklessly cause or attempt to cause bodily injury.
   2. Sexual assault.
   3. To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
   4. To engage in any behavior that has been or could be enjoined with an order enjoining a party from molesting, attacking, striking, stalking, or committing other acts of harassment pursuant to Section 6320. (Section 6203.)
8. Defines “strangulation” to include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck. (Penal Code Section 273.5 (d).)
9. Defines “domestic violence” as abuse that is perpetrated against any of the following persons:
   1. A spouse or former spouse.
   2. A cohabitant or former cohabitant, as defined in Family Code Section 6209.
   3. A person with whom the respondent is having or has had a dating or engagement relationship.
   4. A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12).
   5. A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
   6. Any other person related by consanguinity or affinity within the second degree. (Section 6211.)
10. Requires a case of suspected child abuse, including the suspected rape or sexual assault of a minor, to be reported as such to the appropriate authorities by mandated reporters. The child abuse authorities investigating a child abuse report legally may disclose to parents that a report was made. (See Penal Code Sections 11166, 11167 and 11167.5.)

This bill:

1. Enables a minor who is 12 years of age or older and who states they are injured as a result of intimate partner violence to consent to medical care related to the diagnosis or treatment of the injury and the collection of medical evidence with regard to the alleged intimate partner violence, which is generally defined as an intentional or reckless infliction of bodily harm against the minor perpetrated by a person who has or had a sexual or romantic relationship with the minor, as specified.
2. Provides that it does not apply to cases in which the minor is a victim of an alleged rape or sexual assault, and indicates that such cases are governed by the provisions described above.
3. Requires that, if the health practitioner treating the minor believes that minor’s injuries resulting from intimate partner violence require the health practitioner to make a mandated report to a local law enforcement agency, the health practitioner must do both of the following:
   1. Inform the minor that the report will be made; and
   2. Unless the health practitioner reasonably believes that the minor’s parent or guardian committed the intimate partner violence on the minor, attempt to contact the minor’s parent or guardian and inform them of the report, and to note in the minor’s treatment record the date and time of the attempted contact, and whether it was successful or unsuccessful.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/22/18)

California Association of California Sexual Assault Forensic Examiners (source)

Executive Committee of the Family Law Section of the California Lawyers Association

Safe Havens

OPPOSITION: (Verified 6/22/18)

None received

ARGUMENTS IN SUPPORT: The author writes:

AB 3189 will remove the barriers for minors who have been assaulted from an intimate partner, making it easier for them to seek out medical and forensic medical care. Currently, if a minor has been abused by their partner and if they want to get a medical examination, they would need to get parental consent. This has dissuaded minors from reaching out for help and get[ing] medical attention the minor deserves because they do not want their parents or guardians knowing about the assault. AB 3189 will ensure that minors who are victims of intimate partner violence have safe access to the medical care and treatment they need. It will ensure that victims of intimate partner violence have the same rights as victims of sexual assault.

The sponsor of this bill, California Association of California Sexual Assault Forensic Examiners, writes:

Under the current family code victims of intimate partner violence, ages 12-17, are not permitted to consent to medical care or a forensic medical exam without co-consent from a parent or legal guardian. The lack of a clear definition of “Intimate Partner Violence” and the lack of independent consent protection for a minor to receive forensic medical services adds an additional layer of complication for this high risk victim population seeking help.

AB 3189 is vitally important for this vulnerable population because it will introduce a clear definition of “Intimate Partner Violence” and will permit minors, ages 12 and older, who have been victims of intimate partner violence, the right to consent or decline for a forensic medical exam.

ASSEMBLY FLOOR: 51-17, 4/26/18

AYES: Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bonta, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooper, Daly, Eggman, Frazier, Friedman, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Quirk, Quirk-Silva, Reyes, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Acosta, Bigelow, Brough, Chávez, Chen, Choi, Cunningham, Dahle, Harper, Kiley, Lackey, Mathis, Melendez, Obernolte, Patterson, Voepel, Waldron

NO VOTE RECORDED: Travis Allen, Cooley, Flora, Fong, Gallagher, Cristina Garcia, Gray, Mayes, Rodriguez, Steinorth

Prepared by:

6/22/18 14:09:06

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 3189 (Author:Cooper)

Version: May 30, 2018

Hearing Date: June 19, 2018

Fiscal: No

Urgency: No

Consultant: JDT

SUBJECT

Consent by minors to treatment for intimate partner violence

DESCRIPTION

This bill would enable a minor who is 12 years of age or older to consent to medical treatment, diagnosis, and collection of medical evidence if the minor is a victim of intimate partner violence, as defined.

BACKGROUND

Approximately one in four teenagers experiences “intimate partner violence” in a relationship, a term that is broadly understood to encompass physical and psychological abuse in the context of a romantic or sexual relationship. Compounding this issue, many youths who are the victims of intimate partner violence may be reluctant to seek medical treatment because existing law generally requires a parent or guardian to consent to a minor’s medical treatment.

Over the last 70 years, the Legislature has created various exceptions to this rule. Of particular relevance are statutes that enable a minor to consent to medical treatment, diagnosis, and collection of medical evidence for rape or sexual assault. This bill would seek to enable minors who are 12 years of age or older to do the same when they are victims of intimate partner violence that does not involve rape or sexual assault.

CHANGES TO EXISTING LAW

Existing law defines a minor as an individual who is under 18 years of age, and defines an adult as an individual who is 18 years of age or older. (Fam. Code Secs. 6500 & 6501.)

Existing law provides that, subject to specified limitations, a minor may consent to certain medical treatments, and the consent of the minor’s parent or guardian is not necessary. (Fam. Code Sec. 6920 et seq. ) Thus, in specified circumstances, a minor who is 12 years of age or older may consent to treatment related to:

• mental health treatment or counseling services on an outpatient basis;
• infectious, contagious, or communicable disease;
• an alleged rape; or
• a drug- or alcohol-related problem. (Fam. Code Secs. 6924, 6926, 6927 & 6929.)

Existing law additionally provides that, a minor, regardless of their age, may consent to medical care related to the prevention and treatment of pregnancy and to diagnosis, treatment, and collection of medical evidence with regard to sexual assault. (Fam. Code Secs. 6925 & 6928.)

Existing law, with regard to an alleged rape, provides that a minor who is 12 years of age or older may consent to medical care related to the diagnosis or treatment of the condition and the collection of medical evidence. (Fam. Code Sec. 6927.)

Existing law, with regard to an alleged assault, provides that a minor, regardless of their age, may consent to medical care related to the diagnosis and treatment of the condition, and the collection of medical evidence with regard to the alleged sexual assault. (Fam. Code Sec. 6928(b).) Existing law requires the professional person providing medical treatment, unless they reasonably believe the minor’s parent or guardian committed the sexual assault, to contact the minor’s parent or guardian and to note in the minor’s treatment records the date and time of that attempted contact and whether it was successful or unsuccessful. (Fam. Code Sec. 6928(c).)

Existing law requires mandated reporters, which include health practitioners who, in their professional capacity or within the scope of their employment, provide medical services for a physical condition to a patient whom they know or reasonably suspect has suffered a physical injury inflicted by a firearm or assaultive or abusive conduct, to immediately make a report to a local law enforcement agency, as specified. (Pen. Code Sec. 11160.)

This bill would enable a minor who is 12 years of age or older and who states they are injured as a result of intimate partner violence to consent to medical care related to the diagnosis or treatment of the injury and the collection of medical evidence with regard to the alleged intimate partner violence, which is generally defined as an intentional or reckless infliction of bodily harm against the minor perpetrated by a person who has or had a sexual or romantic relationship with the minor, as specified.

This bill would provide that it does not apply to cases in which the minor is a victim of an alleged rape or sexual assault, and indicates that such cases are governed by the provisions described above.

This bill would require that, if the health practitioner treating the minor believes that minor’s injuries resulting from intimate partner violence require the health practitioner to make a mandated report to a local law enforcement agency, the health practitioner must do both of the following:

• inform the minor that the report will be made; and
• unless the health practitioner reasonably believes that the minor’s parent or guardian committed the intimate partner violence on the minor, attempt to contact the minor’s parent or guardian and inform them of the report, and to note in the minor’s treatment record the date and time of the attempted contact, and whether it was successful or unsuccessful.

COMMENT

1. Stated need for the bill:

The author writes:

AB 3189 will remove the barriers for minors who have been assaulted from an intimate partner, making it easier for them to seek out medical and forensic medical care. Currently, if a minor has been abused by their partner and if they want to get a medical examination, they would need to get parental consent. This has dissuaded minors from reaching out for help and get[ing] medical attention the minor deserves because they do not want their parents or guardians knowing about the assault. AB 3189 will ensure that minors who are victims of intimate partner violence have safe access to the medical care and treatment they need. It will ensure that victims of intimate partner violence have the same rights as victims of sexual assault.

The sponsor of the bill, California Association of California Sexual Assault Forensic Examiners, writes:

Under the current family code victims of intimate partner violence, ages 12-17, are not permitted to consent to medical care or a forensic medical exam without co-consent from a parent or legal guardian. The lack of a clear definition of “Intimate Partner Violence” and the lack of independent consent protection for a minor to receive forensic medical services adds an additional layer of complication for this high risk victim population seeking help.

AB 3189 is vitally important for this vulnerable population because it will introduce a clear definition of “Intimate Partner Violence” and will permit minors, ages 12 and older, who have been victims of intimate partner violence, the right to consent or decline for a forensic medical exam.

2. Definition of “intimate partner violence”

In common parlance, “intimate partner violence” encompasses a broad array of harmful acts as well as relationships. The Center for Disease Control states that “[t]he term ‘intimate partner violence’ describes physical violence, sexual violence, stalking and psychological aggression (including coercive acts) by a current or former intimate partner.” An “intimate partner” is “a person with whom one has a close personal relationship” involving emotional connectedness, regular contact, ongoing physical contact and/or sexual behavior, identity as a couple, or familiarity and knowledge about each other’s lives. (CDC, Intimate Partner Violence: Definitions <https://www.cdc.gov/violenceprevention/intimatepartnerviolence/definitions.html>.)

This bill would define that term more narrowly in order to address a specific set of harms for which minors cannot currently seek medical treatment without the consent of their parent or guardian. Specifically, the bill defines “intimate partner violence” as “an intentional or reckless infliction of bodily harm that is perpetrated against a minor by a person with whom the minor has or had a sexual, dating, engagement, or spousal relationship.” This definition is tailored to address a gap in the statutes enabling minors to consent to medical treatment in certain situations—those statutes address rape, sexual assault, and mental health counseling, but not injuries suffered as a result of nonsexual violence. (See Comment 4 for further discussion.) This bill would enable minors 12 years of age or older to consent to medical treatment for nonsexual violence committed by an intimate partner.

3. Violence in teen dating relationships

In 2016, the Center for Disease Control and Prevention issued a Fact Sheet for Understanding Teen Dating Violence. The fact sheet states:

• among high school students who dated, 21 percent of females and 10 percent of males experienced physical and/or sexual dating violence; and
• among adult victims of rape, physical violence, and/or stalking by an intimate partner, 22 percent of women and 15 percent of men first experienced some form of partner violence between 11 and 17 years of age.

The CDC additionally states that youth who experience dating violence are more likely to:

• experience symptoms of depression and anxiety;
• engage in unhealthy behaviors, such as using tobacco, drugs, and alcohol;
• exhibit antisocial behaviors;
• think about suicide; and
• be at higher risk for victimization during college. (CDC, Teen Dating Violence <https://www.cdc.gov/violenceprevention/intimatepartnerviolence/teen_dating_violence.html> [as of May 16, 2018].)

4. Consent to medical treatment by minors

At common law, the right of parents to make medical decisions on behalf of their children was nearly absolute. Blackstone stated that the “natural bonds of affection lead parents to act in the best interests of their children.” (Parham v. J.R. (1979) 442 U.S. 584, 602.) Minors were generally considered incapable of giving valid consent to medical treatment; consequently it fell to the parent or guardian to provide the requisite consent, safeguarding children “from the potential overreaching of third parties or the improvidence of their own immature decisionmaking.” (Am. Acad. of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 315.) Thus, courts and legislatures were hesitant to substitute their judgment for that of the parents or guardians, except in emergencies. (Wadlington, Medical Decision Making For And By Children: Tensions Between Parent, State, and Child (1994) U. Ill. L. Rev. 311, 315.)

While the requirement that a minor’s parent or guardian must grant consent to medical treatment for the minor remains the general rule, public policy has shifted in favor of protections for children at the expense of parental autonomy. A California Court of Appeal summarized this evolving perspective as follows:

Inherent in the preference for parental autonomy is a commitment to diverse lifestyles, including the right of parents to raise their children as they think best. Legal judgments regarding the value of child rearing patterns should be kept to a minimum so long as the child is afforded the best available opportunity to fulfill his potential in society.

Parental autonomy, however, is not absolute. The state is the guardian of society’s basic values. Under the doctrine of parens patriae, the state has a right, indeed, a duty, to protect children. [Citation.] State officials may interfere in family matters to safeguard the child's health, educational development and emotional well-being.

One of the most basic values protected by the state is the sanctity of human life. [Citation.] Where parents fail to provide their children with adequate medical care, the state is justified to intervene. However, since the state should usually defer to the wishes of the parents, it has a serious burden of justification before abridging parental autonomy by substituting its judgment for that of the parents.

Several relevant factors must be taken into consideration before a state insists upon medical treatment rejected by the parents. The state should examine the seriousness of the harm the child is suffering or the substantial likelihood that he will suffer serious harm; the evaluation for the treatment by the medical profession; the risks involved in medically treating the child; and the expressed preferences of the child. Of course, the underlying consideration is the child’s welfare and whether his best interests will be served by the medical treatment. (In re Phillip B. (1979) Cal.App.3d 796, 801-802.)

Thus, over the past 70 years, the Legislature has enacted a series of statutes that allow minors to seek medical care in certain situations without parental consent. In a narrow set of cases, statutes effectively grant the minor full emancipation from parental control for medical purposes. For instance, a minor who is 15 years of age or older, who is financially independent and does not live with their parents or guardian, may consent to the minor’s medical or dental care, as specified. (Fam. Code Sec. 6922.)

Additionally, California has adopted statutes that authorize minors, without parental consent, to seek certain categories of medical treatment for designated conditions. For example, in 1953, the Legislature authorized an unmarried pregnant minor, without parental consent, to obtain hospital, medical, and surgical care related to pregnancy. (Fam. Code Sec. 6925.) In 1968, the Legislature adopted a similar provision authorizing any minor, 12 years of age or older, to obtain, without parental consent, medical care related to the diagnosis or treatment of any infectious, contagious, or communicable disease, including a sexually transmitted disease. (Fam. Code Sec. 6926.) In 1977, an analogous provision was adopted authorizing any minor, 12 years of age or older, to obtain, without parental consent, medical care related to the diagnosis and treatment of rape. (Fam. Code Sec. 6927.) That same year, the Legislature authorized a minor (of any age) to obtain, without parental consent, medical care relating to sexual assault. (Fam. Code Sec. 6928.) Finally, in 1979, the Legislature enacted a statute authorizing minors who are 12 years of age or older to obtain, without parental consent, mental health treatment or counseling on an outpatient basis. (Fam. Code Sec. 6924.)

According to the California Supreme Court, “each of these statutory provisions embodies a legislative recognition that, particularly in matters concerning sexual conduct, minors frequently are reluctant, either because of embarrassment or fear, to inform their parents of medical conditions relating to such conduct, and consequently that there is a considerable risk that minors will postpone or avoid seeking needed medical care if they are required to obtain parental consent before receiving medical care for such conditions.” (Am. Acad. of Pediatrics v. Lungren, supra, 16 Cal.4th at pp. 317-18.) These statutes, according to the Court, “reflect a long-standing legislative recognition that (1) minors frequently are reluctant to disclose to their parents medical needs arising out of the minor's involvement in sexual activity and may postpone or avoid seeking such care if parental consent is required, and (2) as a consequence, the health of minors generally will be protected best in this setting by authorizing minors to obtain medical care relating to such activity without parental consent.” (Id., at p. 353.) Ultimately, the Court held that a state law that required parental consent for a minor to obtain an abortion violated the right of minors to privacy under the California Constitution. (Id., at p. 359.)

5. Mandatory reporting

Penal Code Section 11160 requires a health practitioner employed in a health facility, clinic, physician’s office, local or state public health department, or a clinic or other type of facility operated by a local or state public health department who, in his or her professional capacity or within the scope of his or her employment, provides medical services for a physical condition to a patient he or she knows or reasonably suspects is a person who suffers from a wound or physical injury inflicted upon the person as a result of “assaultive or abusive conduct,” to make a report to local law enforcement. (Pen. Code Sec. 11160, subd. (a), (c).) The term “assaultive or abusive conduct” is defined to include numerous crimes, including battery, child abuse or endangerment, or an attempt to commit those crimes. (Pen. Code Sec. 11160, subd. (c)(8),(17), & (24).)

This bill would require the health practitioner treating a minor who is a victim of intimate partner violence, if the health practitioner believes that the victim’s injuries necessitate reporting pursuant to the provisions described above, to (1) inform the minor that the report will be made, and (2) to attempt to contact the minor’s parent or guardian, unless the health practitioner reasonably believes that the minor’s parent or guardian committed the intimate partner violence on the minor.

Support: Executive Committee of the Family Law Section of the California Lawyers Association; Safe Havens

Opposition: None known

HISTORY

Source: California Association of California Sexual Assault Forensic Examiners

Related Pending Legislation: None

Prior Legislation: AB 643 (Frazier, Ch. 643, Stats. 2017) required the information included in the instruction about adolescent relationship abuse and intimate partner violence to also include the early warning signs thereof.

Prior Vote:

Assembly Floor (Ayes 51, Noes 17)

Assembly Judiciary Committee (Ayes 8, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 3189

Author:(Cooper)

As Amended Ver:April 19, 2018

Majority vote

SUMMARY: Allows minors to consent to medical care for injuries caused by intimate partner violence and imposes a number of requirements on the professional persons who provide care to them. Specifically, this bill:

1. Provides that a minor who is 12 years of age or older and who states he or she is injured as a result of intimate partner violence may consent to medical care related to the diagnosis or treatment of the injury and the collection of medical evidence with regard to the alleged intimate partner violence.
2. Requires a professional person providing treatment who believes that the acts causing the injuries to the minor constitute child abuse that must be reported to law enforcement pursuant to the professional person's duties as a mandated reporter of child abuse, to do the following:
   1. Inform the minor that the report will be made;
   2. Attempt to contact the minor's parent or guardian and inform them of the report;
   3. Note in the minor's treatment record the date and time of the attempt to contact the parent or guardian and whether the attempt was successful or unsuccessful.
3. Clarifies that a professional person providing treatment is not required to attempt to contact the minor's parent or guardian if the professional person reasonably believes that the parent or guardian committed the intimate partner violence.
4. Defines, for the purposes of this bill, the term "intimate partner violence" to mean any act of abuse defined in Family Code Section 6203, including strangulation as defined in Penal Code Section 273.5(d), but not including sexual assault, that is perpetrated against the minor and the minor is any person listed in Family Code Section 6211.
5. Clarifies the requirements of the bill do not apply to a case in which the minor is an alleged victim of rape, as defined in Penal Code Section 261 or 262, in which case the provisions of Family Code Section 6927 shall apply, or in a case in which the minor is alleged to have been sexually assaulted, as described in Family Code Section 6928, in which case the provisions of that section shall apply.

FISCAL EFFECT: None

COMMENTS: This bill, sponsored by the California Association of California Sexual Assault Forensic Examiners (CalSAFE), seeks to ensure that minors between the ages of 12 and 17 years have the ability to consent to obtain medical care related to the diagnosis, treatment, and collection of medical evidence with regard to the crime of "intimate partner violence." According to the author, the fact that minors have the ability to consent to medical care for the treatment, diagnosis, and collection of evidence related to an alleged sexual assault, but not intimate partner violence, creates a dangerous loophole in existing law:

Current law allows a minor who is 12 years of age or older who have been sexually assaulted or raped to consent to a medical examination, treatment, and evidence collection for sexual assault without parental consent. Under the current family code, victims of intimate partner violence and/or strangulation, ages 12-17, are not permitted the ability to consent to a forensic medical exam without co-consent from a parent or legal guardian. This adds an additional layer of complication for this high risk victim population seeking help. Victims may choose not to get an examination due to fear of their parents or guardian finding out.

AB 3189 will remove the barriers for minors who have been assaulted from an intimate partner, making it easier for them to seek out medical and forensic medical care. Currently, if a minor has been abused by their significant other and if they want to get a medical examination, they would need to get parental consent. If a minor does not want their parents or guardians knowing about the assault, this disputed them from reaching out for help and medical attention that need and deserves.

Requirements and Prohibitions to Notification of a Minor's Medical Treatment to Parents or Guardians and Law Enforcement. As a general rule, health care providers are prohibited from sharing with any other person medical information about a minor who has the legal ability to consent to medical care without consent from the minor. (Health and Safety Code Sections 123110(a) and 123115(a)(1).) For example, state law prohibits a health care provider from informing a parent or legal guardian that the minor has obtained an abortion and allows the provider to share the minor's medical information with them only with signed authorization from the minor. (Ibid, Civil Code Sections 56.10 and 56.11.)

Likewise, a school district may not require students to obtain written parental consent prior to leaving school to receive confidential medical services. A school may not notify a parent when a student leaves school to receive confidential medical services. (87 Ops. Cal. Attorney General 168 (2004).) However, health care providers who treat minors and suspect the minor patient is a victim of child abuse are required, as mandated reporters, to report any such suspected abuse to law enforcement. (See Penal Code Sections 11166, 11167, and 11167.5.) The child abuse authorities investigating a child abuse report legally may then disclose to the parents that a report was made. (Ibid.)

In some cases, health care providers are either required to also notify the minor's parents about the report to law enforcement, or prohibited from doing so, depending on the age of the minor and the suspected offense. In general, the older the minor and the more serious the crime, the more rights the minor has to confidentiality and the fewer rights parents have to notification. For example, in the case of a minor who is 12 years of age or older and who may have been raped, the health care provider is not permitted to contact the minor's parent or guardian without the minor's written and signed consent. (Family Code Section 6927; Health and Safety Code Sections 123110 (a), 123115 (a)(1); Civil Code Sections 56.10, 56.11.) On the other hand, for a minor under the age of 12 years of age, the health care provider must attempt to contact the minor's parent or guardian and note in the minor's record the day and time of the attempted contact and whether the attempt was successful. (Family Code Section 6928.) There is no such requirement to notify a parent or guardian, however, when the treating professional reasonably believes that the parent or guardian committed the assault. (Ibid.)

This Bill – Authorizes Consent by Minors to Medical Care Related to Intimate Partner Violence; Requires Notification When Violence Constitutes Child Abuse. This bill provides minors over the age of 12 with the specific authority to consent to obtain medical care related to the diagnosis, treatment, and collection of medical evidence with regard to the crime of "intimate partner violence." As recently amended, the bill incorporates a definition of "intimate partner violence" that is modeled on terminology and concepts used in existing domestic violence statutes.

This bill also requires the professional person providing treatment to the minor to attempt to contact the minor's parent or guardian in the event that the professional person determines that the assault appears to constitute child abuse. This provision is similar to the notification rule in current law about minors who are victims of sexual assault. Also, like those laws related to sexual assault, the amended bill provides an exception to the parental notification requirement when the professional treatment provider reasonably believes that the parent or guardian is the person who committed the intimate partner violence.

Finally, in order to ensure that the minor victim is informed about the mandated report to law enforcement, the bill imposes an additional requirement that the professional person inform the minor that the report has been made. Although this may be a best practice of many professionals who care for minors who are victims of suspected child abuse, it is not currently required by law.

In support of the bill, CalSAFE, writes that, "Under the current family code victims of intimate partner violence, ages 12-17, are not permitted to consent to medical care or a forensic medical exam without the co-consent from a parent or legal guardian." It continues that "AB 3189 is vitally important for this vulnerable population because it will introduce a clear definition of 'Intimate Partner Violence' and will permit minors, ages 12 and older, who have been victims of intimate partner violence, the right to consent or decline for a forensic medical exam."

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0002718

Date of Hearing: April 17, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 3189

Author:(Cooper) – As Amended Ver:March 15, 2018

As Proposed to be Amended

SUBJECT: CONSENT BY MINORS TO MEDICAL TREATMENT FOR INTIMATE PARTNER VIOLENCE

KEY ISSUES:

1. SHOULD MINORS 12 – 17 YEARS OLD WHO ARE INJURED AS A RESULT OF ALLEGED INTIMATE PARTNER VIOLENCE BE ABLE TO CONSENT TO MEDICAL CARE RELATED TO THEIR INJURIES, JUST AS CURRENT LAW ALLOWS THEM TO DO IN RELATION TO MEDICAL CARE FOR SEX-RELATED CRIMES?
2. SHOULD STATE LAW REQUIRE A PROFESSIONAL PERSON WHO PROVIDES TREATMENT TO SUCH A MINOR AND WHO IS ALREADY MANDATED TO MAKE A REPORT OF SUSPECTED CHILD ABUSE TO ALSO INFORM THE MINOR OF THE REPORT AND ATTEMPT TO CONTACT THE MINOR’S PARENT OR GUARDIAN, JUST AS THEY ARE NOW REQUIRED TO DO IN RELATION TO SEX-RELATED CRIMES?

SYNOPSIS

At common law, minors generally were considered to lack the legal capacity to give valid consent to medical treatment or services, and consequently a parent, guardian, or other legally authorized person generally was required to provide the requisite consent. In fact, a physician who provided medical care to a minor without such parental or other legally authorized consent could be sued for battery. The rationale was to protect the health and welfare of minors, safeguarding them from the potential overreaching of third parties and leaving decisions concerning the minor's medical care in the hands of his or her parents, who were presumed to be in the best position to protect the health of their child.

However, over the past half-century, a number of significant statutory developments have modified or reversed the general rule relating to the provision of medical care to minors. These statutory provisions embodies a legislative recognition that, particularly in matters concerning sexual conduct, minors frequently are reluctant, either because of embarrassment or fear, to inform their parents of medical conditions relating to such conduct, and consequently that there is a considerable risk that minors will postpone or avoid seeking needed medical care if they are required to obtain parental consent before receiving medical care for such conditions.

This bill, sponsored by the California Association of California Sexual Assault Forensic Examiners (CalSAFE), seeks to ensure that minors between the ages of 12 and 17 years have the ability to consent to obtain medical care related to the diagnosis, treatment, and collection of medical evidence with regard to the crime of “intimate partner violence.” According to the author, the fact that minors have the ability to consent to medical care for the treatment, diagnosis, and collection of evidence related to an alleged sexual assault, but not intimate partner violence, creates a dangerous loophole in existing law. The bill in print has a very broad and vague definition of “intimate partner violence.” The bill in print also specifically authorizes a minor to decline to consent to medical care, but does not require a treatment provider to notify the parent or guardian if a report of suspected child abuse is made. As proposed to be amended, the bill requires the professional person providing treatment to the minor to notify the minor and attempt to contact the minor’s parent or guardian in the event that the professional person determines that the assault appears to constitute child abuse. This is similar to the rule in current law about minors who are victims of sexual assault. The author has agreed to amend the bill to clarify those points. The amendments are reflected in the analysis and the summary of the bill, below. Other than support from CalSAFE, the bill has no support or opposition on file.

SUMMARY: Allows minors to consent to medical care for injuries caused by intimate partner violence and imposes a number of requirements on the professional persons who provide care to them. Specifically, this bill:

1. Provides that a minor who is 12 years of age or older and who states he or she is injured as a result of intimate partner violence may consent to medical care related to the diagnosis or treatment of the injury and the collection of medical evidence with regard to the alleged intimate partner violence.
2. Requires a professional person providing treatment who believes that the acts causing the injuries to the minor constitute child abuse that must be reported to law enforcement pursuant to the professional person’s duties as a mandated reporter of child abuse, to do the following:
3. Inform the minor that the report will be made;
4. Attempt to contact the minor’s parent or guardian and inform them of the report;
5. Note in the minor’s treatment record the date and time of the attempt to contact the parent or guardian and whether the attempt was successful or unsuccessful.
6. Clarifies that a professional person providing treatment is not required to attempt to contact the minor’s parent or guardian if the professional person reasonably believes that the parent or guardian committed the intimate partner violence.
7. Defines, for the purposes of this bill, the term “intimate partner violence” to mean any act of abuse defined in Family Code Section 6203, including strangulation as defined in subdivision (d) of Section 273.5 of the Penal Code but not including sexual assault, that is perpetrated against the minor and the minor is any person listed in Family Code Section 6211.
8. Clarifies the requirements of the bill do not apply to a case in which the minor is an alleged victim of rape, as defined in Section 261 or 262 of the Penal Code, in which case the provisions of Family Code Section 6927 shall apply, or in a case in which the minor is alleged to have been sexually assaulted, as described in Family Code Section 6928, in which case the provisions of that section shall apply.

EXISTING LAW:

1. Provides that a minor may consent to medical care related to the prevention or treatment of pregnancy, except sterilization. (Family Code Section 6925. All further statutory references are to this code, unless otherwise indicated.)
2. Provides that a minor may receive birth control without parental consent. (Section 6925.)
3. Prohibits a health care provider from informing a parent or legal guardian that the minor has obtained birth control and allows the provider to share the minor’s medical information with them only with signed authorization from the minor. (Health & Safety Code Sections 123110(a), 123115(a)(1); Civil Code Sections 56.10, 56.11.)
4. Provides that a minor may consent to an abortion without parental consent. (Section 6925.)
5. Prohibits the health care provider from informing a parent or legal guardian that the minor has obtained an abortion and allows the provider to share the minor’s medical information with them only with signed authorization from the minor. (Health & Safety Code Sections 123110 (a), 123115 (a)(1); Civil Code Sections 56.10, 56.11.)
6. Provides the following rules about a minor’s right to consent to medical care and notification of a minor’s parents relating to the minor obtaining medical services for specific sex-related offenses, depending on the age of the minor and the specific sex-related offense:
   1. Rape, sodomy, and oral copulation: regardless of the minor’s age, a minor may consent to medical care related to the diagnosis, treatment, and collection of medical evidence with regard to the rape, sodomy, or coral copulation. (Sections 6927, 6928.)
7. In the case of a minor under the age of 12 years of age, the health care provider must attempt to contact the minor’s parent or guardian and note in the minor’s record the day and time of the attempted contact and whether the attempt was successful (unless the treating professional reasonably believes that the parent/guardian committed the assault). (Section 6928; Health & Safety Code Sections 123110 (a), 123115 (a)(1); Civil Code Sections 56.10, 56.11.)
8. In the case of a minor 12 years of age or older who may have been raped may consent to medical care related to the diagnosis, but the health care provider is not permitted to contact the minor’s parent or guardian without the minor’s written and signed consent. (Health & Safety Code Sections 123110 (a), 123115 (a)(1); Civil Code Sections 56.10, 56.11.)
   1. Sexual assault other than rape: the minor, regardless of age, may consent to medical care related to the diagnosis, treatment, and collection of medical evidence with regard to the sexual assault; but the health care provider must attempt to contact the minor’s parent or guardian and note in the minor’s record the day and time of the attempted contact and whether it was successful (unless the treating professional reasonably believes that the parent/guardian committed the assault). (Section 6928.)
9. Defines “abuse” to mean any of the following, but not limited to the actual infliction of physical injury or assault:
   1. To intentionally or recklessly cause or attempt to cause bodily injury.
   2. Sexual assault.
   3. To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
   4. To engage in any behavior that has been or could be enjoined with an order enjoining a party from molesting, attacking, striking, stalking, or committing other acts of harassment pursuant to Section 6320. (Section 6203.)
10. Defines “strangulation” to include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck. (Penal Code Section 273.5 (d).)
11. Defines “domestic violence” as abuse that is perpetrated against any of the following persons:
12. A spouse or former spouse.
13. A cohabitant or former cohabitant, as defined in Section 6209.
14. A person with whom the respondent is having or has had a dating or engagement relationship.
15. A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12).
16. A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
17. Any other person related by consanguinity or affinity within the second degree. (Section 6211.)
18. Requires a case of suspected child abuse, including the suspected rape or sexual assault of a minor, to be reported as such to the appropriate authorities by mandated reporters. The child abuse authorities investigating a child abuse report legally may disclose to parents that a report was made. (See Penal Code Sections 11166, 11167 and 11167.5.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: This bill, sponsored by the California Association of California Sexual Assault Forensic Examiners (CalSAFE), seeks to ensure that minors between the ages of 12 and 17 years have the ability to consent to obtain medical care related to the diagnosis, treatment, and collection of medical evidence with regard to the crime of “intimate partner violence.” According to the author, the fact that minors have the ability to consent to medical care for the treatment, diagnosis, and collection of evidence related to an alleged sexual assault, but not intimate partner violence, creates a dangerous loophole in existing law:

Current law allows a minor who is 12 years of age or older who have been sexually assaulted or raped to consent to a medical examination, treatment, and evidence collection for sexual assault without parental consent. Under the current family code, victims of intimate partner violence and/or strangulation, ages 12-17, are not permitted the ability to consent to a forensic medical exam without co-consent from a parent or legal guardian. This adds an additional layer of complication for this high risk victim population seeking help. Victims may choose not to get an examination due to fear of their parents or guardian finding out.

AB 3189 will remove the barriers for minors who have been assaulted from an intimate partner, making it easier for them to seek out medical and forensic medical care. Currently, if a minor has been abused by their significant other and if they want to get a medical examination, they would need to get parental consent. If a minor does not want their parents or guardians knowing about the assault, this disputed them from reaching out for help and medical attention that need and deserves.

Common Law –No Authority for Minors to Consent to Their Own Medical Care. At common law, minors generally were considered to lack the legal capacity to give valid consent to medical treatment or services, and consequently a parent, guardian, or other legally authorized person generally was required to provide the requisite consent. (Am. Acad. of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 314-15.) In fact, a physician who provided medical care to a minor without such parental or other legally authorized consent could be sued for battery. (Id., at p. 315.) “As with other common law rules relating to the legal ‘disability’ of minority, the purpose of the general common law rule regarding medical care was to protect the health and welfare of minors, safeguarding them from the potential overreaching of third parties or the improvidence of their own immature decisionmaking, and leaving decisions concerning the minor's medical care in the hands of his or her parents, who were presumed to be in the best position to protect the health of their child.” (Ibid.)

Exceptions to General Rule- Minors Authorized to Consent to Medical Care. The requirement that medical care be provided to a minor only with the consent of the minor's parent or guardian remains the general rule, both in California and throughout the United States. However, over the past half-century, a number of significant statutory developments have modified or reversed the general rule relating to the provision of medical care to minors. For example, in 1953, the Legislature authorized an unmarried pregnant minor, without parental consent, to obtain hospital, medical, and surgical care related to pregnancy. (Section 6925.) In 1968, the Legislature adopted a similar provision authorizing any minor, 12 years of age or older, to obtain, without parental consent, medical care related to the diagnosis or treatment of any infectious, contagious, or communicable disease, including a sexually transmitted disease. (Section 6926.) In 1977, an analogous provision was adopted authorizing any minor, 12 years of age or older, to obtain, without parental consent, medical care related to the diagnosis and treatment of rape. (Section 6927.) That same year, the Legislature authorized a minor (of any age) to obtain, without parental consent, medical care relating to sexual assault. (Section 6928.)

According to the California Supreme Court, “[E]ach of these statutory provisions embodies a legislative recognition that, particularly in matters concerning sexual conduct, minors frequently are reluctant, either because of embarrassment or fear, to inform their parents of medical conditions relating to such conduct, and consequently that there is a considerable risk that minors will postpone or avoid seeking needed medical care if they are required to obtain parental consent before receiving medical care for such conditions.” (Am. Acad. of Pediatrics v. Lungren, supra, 16 Cal.4^th at pp. 317-18.) These statutes, according to the Court, “reflect a long-standing legislative recognition that (1) minors frequently are reluctant to disclose to their parents medical needs arising out of the minor's involvement in sexual activity and may postpone or avoid seeking such care if parental consent is required, and (2) as a consequence, the health of minors generally will be protected best in this setting by authorizing minors to obtain medical care relating to such activity without parental consent. (Id., at p. 353.) Ultimately, the Court held that a state law which required parental consent for a minor to obtain an abortion violated the right of minors to privacy under the California Constitution, including the ability to make their own medical decisions related to sex in an unconstitutional manner. (Id., at p. 359.)

Requirements and Prohibitions to Notification of a Minor’s Medical Treatment to Parents or Guardians and Law Enforcement. As a general rule, health care providers are prohibited from sharing with any other person medical information about a minor who has the legal ability to consent to medical care without consent from the minor. (Health & Safety Code Sections 123110 (a), 123115 (a)(1).) For example, state law prohibits a health care provider from informing a parent or legal guardian that the minor has obtained an abortion and allows the provider to share the minor’s medical information with them only with signed authorization from the minor. (Ibid, Civil Code Sections 56.10, 56.11.)

Likewise, a school district may not require students to obtain written parental consent prior to leaving school to receive confidential medical services. A school may not notify a parent when a student leaves school to receive confidential medical services. (87 Ops. Cal. Att’y. Gen. 168 (2004).) However, health care providers who treat minors and suspect the minor patient is a victim of child abuse are required, as mandated reporters, to report any such suspected abuse to law enforcement. (See Penal Code Sections 11166, 11167 and 11167.5.) The child abuse authorities investigating a child abuse report legally may then disclose to the parents that a report was made. (Ibid.)

In some cases, health care providers are either required to also notify the minor’s parents about the report to law enforcement, or prohibited from doing so, depending on the age of the minor and the suspected offense. In general, the older the minor and the more serious the crime, the more rights the minor has to confidentiality and the fewer rights parents have to notification. For example, in the case of a minor who is 12 years of age or older and who may have been raped, the health care provider is not permitted to contact the minor’s parent or guardian without the minor’s written and signed consent. (Section 6927; Health & Safety Code Sections 123110 (a), 123115 (a)(1); Civil Code Sections 56.10, 56.11.) On the other hand, for a minor under the age of 12 years of age, the health care provider must attempt to contact the minor’s parent or guardian and note in the minor’s record the day and time of the attempted contact and whether the attempt was successful. (Section 6928.) There is no such requirement to notify a parent or guardian, however, when the treating professional reasonably believes that the parent or guardian committed the assault. (Ibid.)

This Bill – Authorizes Consent by Minors to Medical Care Related to Intimate Partner Violence; Requires Notification When Violence Constitutes Child Abuse. This bill provides minors over the age of 12 with the specific authority to consent to obtain medical care related to the diagnosis, treatment, and collection of medical evidence with regard to the crime of “intimate partner violence.” The bill in print authorizes a minor to decline to consent to medical care and has a very broad and vague definition of “intimate partner violence.” But as amended, the bill simply authorizes the minor to consent to treatment (which logically includes the right to decline consent) and incorporates a definition of “intimate partner violence” that is modeled on terminology and concepts used in existing domestic violence statutes.

The bill in print does not require a treatment provider to notify the parent or guardian if a report of suspected child abuse is made. As amended by the author, the bill provides that the professional person providing treatment to the minor must attempt to contact the minor’s parent or guardian in the event that the professional person determines that the assault appears to constitute child abuse. This provision is similar to the notification rule in current law about minors who are victims of sexual assault. Also, like those laws related to sexual assault, the amended bill provides an exception to the parental notification requirement when the professional treatment provider reasonably believes that the parent or guardian is the person who committed the intimate partner violence.

Finally, in order to ensure that the minor victim is informed about the mandated report to law enforcement, the amended bill imposes an additional requirement that the professional person inform the minor that the report has been made. Although this may be a best practice of many professionals who care for minors who are victims of suspected child abuse, it is not currently required by law.

ARGUMENTS IN SUPPORT: In support of the bill, CalSAFE, writes that, “Under the current family code victims of intimate partner violence, ages 12-17, are not permitted to consent to medical care or a forensic medical exam without the co-consent from a parent or legal guardian.” It continues that “AB 3189 is vitally important for this vulnerable population because it will introduce a clear definition of “Intimate Partner Violence” and will permit minors, ages 12 and older, who have been victims of intimate partner violence, the right to consent or decline for a forensic medical exam.”

REGISTERED SUPPORT / OPPOSITION:

Support

Association of California Sexual Assault Forensic Examiners

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334