Legal Corner: Can I be denied access to the medical records of my 17-year-old developmentally delayed child?

LAKE CHARLES, La. (KPLC) - Legal Corner answers viewers’ civil legal questions.

QUESTION: My husband recently went to pick up our 17-year-old daughter’s routine lab results at a local lab as he has done before. The lab refused to share the results with him stating that because she is 17, she would have to sign a release in order for us, her parents, to receive lab results.

What law states that parents cannot have access to their minor child’s medical records?

Besides being a minor, our daughter has developmental delays and cannot sign her name.

We know we have to request continuing tutorship through the court before she turns 18, but we do not understand losing our rights to parent while she is a minor.

ANSWER: Louisiana law does not say parents cannot have access to their minor child’s medical records. In Louisiana, parents generally have access to their 17-year-old child’s medical records; however, La.R.S. 28:454.3(A) presumes that individuals with developmental disabilities have the capacity to give consent to a particular decision or make their own decisions, unless and until determined otherwise. La.R.S. 28:454.3(A)(1) provides that capacity to give consent or make a particular decision exists when person is able to comprehend the purposes, consequences, risks and benefits of the decision and any available alternatives

La.R.S. 28:454.3 continues as follows:

B. The capacity of a person to consent can change and develop over time, depending upon health, environment, and other variables.

• The capacity of a person to consent must be routinely assessed as decisions present themselves.
• Assessment shall use current standards and assessment tools, along with input from others, including family and direct service staff who are most familiar with the person.
• Lack of capacity to make a particular decision does not negate the possibility that a person may have capacity to make other decisions or later decisions.

C. Decisions concerning matters that have important legal, health, safety or other long-term consequences shall require legally adequate consent. Before a person with a developmental disability can be deemed to have given legally adequate consent, each of the following conditions must be met:

• The person has not been placed under a judgment of interdiction or continuing tutorship that restricts the right of the person to make the decision in question.
• The person has capacity to consent and has been informed of the purposes, consequences, and risks of the decision being made and the benefits of any alternative decision.
• The person understands that his withholding or withdrawing of consent shall not prejudice future provision of care and services to him.
• The person is giving such consent voluntarily and free from coercion and undue influence.

Continuing Tutorship

A continuing tutorship is a legal process in which children with mental disabilities cannot make decisions for themselves and a parent or guardian (tutor) becomes legally responsible for the child after they turn 18 years old. To qualify for a continuing tutorship, a person must have less than two-thirds the intellectual function of an averagely functioning person of the same age. Continuing tutorship only applies to children with mental disabilities. This is decided by standard testing procedures, such as an IQ test, by a medical professional, such as a psychologist, or other relevant evidence that is acceptable to the court. All requests for continuing tutorships must be made once the child reaches 15 years old and before they turn 18 years old.

Once a child turns 18 years old, they will no longer need a tutor. If you have a child with special needs who you believe will be unable to care for themselves after they turn 18, you can ask the court for a continuing tutorship once the child turns 15 years old. The request for a continuing tutorship must be completed before the child turns 18 years old.