The right of a minor to confidentiality: an aftermath of Bartley v. Kremens.

Until recently, the right to hospitalize a minor child psychiatrical1y resided total1y within parental prerogatives. The Bartley v. Kremens case resulted in a drastic change of law in those jurisdictions which judicial1y or legislatively have fol1owed its principles namely, that minors 14 or above have an independent right to assent or not assent to voluntary hospitalization and that minors under 14 must have ajudicial review of the need for hospitalization. The right of either parent to act unilateral1y therefore no longer exists where the Bartley principle applies. The issues and procedur~s involved in such hospitalizations have been described in Psychiatric and Legal Issues in the Hospitalization of Children. I A new issue deriving from these changes is the right of confidentiality and the application of privilege to children whose psychiatric history may be relevant to divorce and custody proceedings. This article discusses an unreported New Jersey case involving a custody dispute. Each parent requested release of information concerning the child's hospitalization at an intensive treatment psychiatric institution; each felt that the psychiatric information would be helpful in obtaining custody. The child had been hospitalized briefly and had signed out voluntarily, there being no grounds for involuntary hospitalization. The right of hospitalized patients to confidentiality is clear cut in New Jersey (and is supported by the New Jersey privilege and hospitalization statutes). The right to authorize hospitalization includes the col1ateral right to authorize release of information. The minor, who was 14 years of age at the time of the court hearing, had not authorized release of information. The position taken by the psychiatrist was not to respond to the parents' wish to introduce records regarding the minor's hospitalization, considering this to be a violation of the minor's right to confidentiality. A subpoena was served on the psychiatrist, necessitating a court appearance with representation by the State Attorney General's office. Despite the professed wish of the mother and the stance of the father (who had custody but who offered at trial no opinion as to release of information), the court upheld the right of the minor to exercise the right of privilege. The extension of such authority to the protected minor and its antecedents in law are presented in this article.