She Thinks She’s Pregnant — What Do We Do?

Charles R. Gregg and Catherine Hansen-Stamp © 2013*

Introduction

A camp has a duty to exercise reasonable care in its dealings with campers,1 including, within its reasonable capabilities, to understand and manage its campers’ medical needs and health issues. Parents are generally expected to disclose known health issues and, in turn, expect to be informed by the camp of moderate to serious medical issues. Camps handle this “information exchange” in a variety of ways.

The focus of this article is a minor camper’s legal right to privacy and confidentiality regarding information the camper reveals to camp medical staff while seeking advice or treatment pertinent to pregnancy or other sexual activity. (In most states, minors are those under eighteen years of age.) These issues include contraception, sexually transmitted diseases, suspected pregnancy, and the management (including termination) of a known pregnancy. The core of the child’s privacy right is the Fourteenth Amendment to the U.S. Constitution, and many states have equivalent state constitutional provisions. The laws vary significantly from state to state, but are generally designed to encourage a child to seek help in circumstances where he or she might not, if the parents were informed. We are not medical experts and defer to others regarding the medical aspects of these matters.

These issues do not appear to be common, but they are important, and, according to reports from ACA, related inquiries are increasing. If a camp is faced with a camper pregnancy or other condition arising from camper sexual activity, camp management must be mindful of federal and state restrictions on parental notification without the child’s consent.

The Issues

Among other inquiries, the ACA Hotline has received the following:

  • A camper informs the camp nurse that she thinks she might be pregnant and asks the camp nurse to buy her a pregnancy test kit or administer a pregnancy test. Should the camp nurse buy and/or administer the test to a minor? Should the camp inform the parent?
  • A camper obtains a pregnancy test in the mail while at camp. She uses it, and informs a camp counselor that it came back positive. Should the camp inform the parent? Should the child remain at camp?
  • A camper reveals to the camp nurse that she is pregnant and hasn’t told her parents. Should the nurse report the condition to the parents?
  • A camper announces to the camp nurse that she had an abortion two days before arriving at camp. She has some medical requirements that the camp cannot meet and the camp wants to send her home for proper care. Should the camp tell the parents of the abortion?

The camper may be disclosing the information (described above) to a camp counselor or other nonmedical staff, or to the camp nurse or other camp medical staff. If these or similar inquiries or exchanges involve only fellow campers or nonmedical staff, the communications are likely not entitled to the privacy protections we discuss here. The camper is not seeking medical advice or assistance from a medical care provider. However, it is also clear that any staff member who receives information from the camper about the camper’s health would be expected to act on it, in a reasonable manner, for the protection of the camper. These actions might include reporting an incident of abuse or neglect to local authorities; notifying camp medical staff and/or management staff to determine next steps, including whether the child should remain at camp (or be sent home); and while the child remains at camp, assessing the child’s health needs and activity levels. In any event, it may be wise for a staff member to interrupt the camper imparting this information and urge the camper to seek the help of the camp’s medical staff.

If the camper discloses the information to the camp nurse or other medical provider, the parent may not be entitled to notification, pursuant to laws allowing minors to obtain medical care or treatment without a parent’s consent or knowledge. What are these laws, and how do they impact the camp’s decisions?

The answer typically depends on a variety of state laws and the overarching right of privacy connected with the child’s reproductive health and choices — rooted in the Fourteenth Amendment to the U.S. Constitution and applicable to all states. Camps should consult with competent legal counsel about their own state’s laws and applicable federal law to fully understand how to respond in this sensitive area.

Quick Legal Overview

In a series of cases, the U.S. Supreme Court has extended the Fourteenth Amendment of the U.S. Constitution’s right to privacy to include a minor’s independent right to make decisions about whether to bear a child (Carey v. Population Services, 431 U.S. 78 [1977]). These Supreme Court cases paved the way for minors (independent of their parent/s) to obtain and use contraception, obtain pre- and postnatal care, choose adoption, and terminate a pregnancy. In Planned Parenthood v. Casey, 505 U.S. 833 (1992),2 the court ruled that in the case of a minor seeking an abortion, a state law could require parental consent, but only if an alternative was provided, to allow the child to bypass that consent — a “judicial bypass.” In Colorado, for example, the Parental Notification law requires that a parent be notified in the event the minor seeks an abortion (absent a few exceptions), but allows a “judicial bypass” if the child petitions the court and (among other things) proves that either the child is sufficiently mature to make the decision on her own, or that notifying the parent would not be in her best interests.3

Other states’ laws extend these rights to minors of various ages in various ways. For example, minors may be allowed to consent to medical care — including the ability to obtain contraception, to obtain treatment for sexually transmitted diseases, to seek prenatal care and birthing care, and to make choices about giving a child up for adoption or terminating a pregnancy. These consent laws may or may not address the issue of parental notification. In some states, if the child is allowed to independently consent to medical care, medical privacy laws dictate that the minor’s medical information may not be disclosed without the minor’s consent. If a minor consent law is silent on parental notification, the medical care provider should exercise caution — considering the broad constitutional right to privacy extended to minors in matters related to their reproductive health and choices.4 I n addition, if parental notification is unclear, or even if a law requires it, a medical care provider may decide (whether expressly allowed in the law or otherwise) to exercise his or her professional judgment to withhold parental notification if circumstances suggest that the parent is abusing the child, that providing notice would endanger the child, or that notice is otherwise not in the best interests of the child.

Washington law5 allows a child at any age to obtain or refuse birth control services or to receive an abortion and abortion-related services. Some states’ courts define a child’s right to privacy in published decisions interpreting that state’s legislation in this area, based upon U.S. Supreme Court precedent.

Most states also have laws specifying a minor as “emancipated” under certain circumstances — typically, a minor who is married or living apart from his or her parent and is self-sufficient. Emancipated minors are treated as adults for certain purposes (allowing them to enter into contracts, obtain medical care, etc.) — but are likely not a category of minors that ACA camps commonly work with.

As we discussed in our Spring 2013 CampLine article,6 in most cases, the Health Information Portability Accountability Act (“HIPPA”) likely does not apply to regulate a camp. However, whether HIPAA does or does not apply, the issue of parental notification and a minor’s right to privacy around health care decisions (such as those discussed above) is essentially determined under state and other applicable law.7

Other resources:

Maradiegue, Ann, C-FNP, MSN. (2003). Minor’s rights vs. parental rights: Review of legal issues in adolescent health care. Journal of Midwifery and Women’s Health. Retrieved from www.medscape.com/viewarticle/456472_6
 

University of Miami, Miller School of Medicine. (2005). Privacy / data protection project. Retrieved from http://privacy.med.miami.edu/glossary/xd_minors.htm

As discussed above (and in prior CampLine articles), other laws may require the camp report to others issues involving the child’s health/sexual activity, which may or may not involve informing the parent. Examples include state laws that require a camp to report known or suspected child abuse to authorities,8 or laws that require camps to report a crime (rape, for example), or to report cases of sexually transmitted diseases, while protecting the confidentiality of the individual involved. Also note that violation of applicable privacy laws favoring the confidentiality of the child’s consultation and treatment can result in fines and possibly other penalties.

The Hotline Issues

The variations in the laws reflect different approaches to the tension among the constitutional rights of children, including privacy, the rights of parents to make health decisions for their children, and the parens patriae right of a state to limit the child’s rights in the interests of protecting their safety. Tension also exists between the desirability of privacy in medical matters, generally, and the need for law enforcement agencies to learn of wrongful conduct, including abuse and rape, or for public health agencies to learn of communicable diseases.

So, what are the legal issues in the Hotline scenarios?

First, the camp should have access to — ideally, a relationship and rapport with — an experienced adolescent counselor (e.g., MSW, psychologist, psychiatrist) in the camp community or otherwise available. These trained professionals can assist the camp / camp nurse greatly in handling these sensitive issues.

Parental Notification

Can or must the camp notify the parent? If the child has informed the camp nurse, but also talked with camp staff, and made it clear that she willingly consents to have her parents told of the situation, the camp can be reasonably comfortable taking that direction. However, if in an exchange with the camp nurse / health care provider, the child has made it clear that she does not want her parents informed, and is unwilling to tell her parents, the camp must be informed of and guided by state law. Again, if the issues relate to the child’s sexual activity or reproductive health, there may be limits to the camp / camp nurse’s ability to notify the parents — or at least, any such notice should be considered carefully.

If the child has told a camp staff member who is not a medical care provider, the camp, with some confidence, may inform the parent. On the other hand, if the matter involves suspected abuse — occurring at the hand of that parent — the camp may have a reporting obligation, and may be advised by authorities not to inform the parent.

If the child asks the camp to provide a pregnancy kit or test — should it or must it do so? (On a trip to town, the camper might buy her own kit and self-administer.) The camp nurse may decide to stock these kits to have the opportunity to assess this potential (consistent with a parent’s advance written agreement to allow the camp to provide routine care or seek emergency care for the camper). The camp should already understand applicable state law on parental notification issues (considering the law discussed previously — this is likely within the minor’s zone of privacy rights).

Suppose that the child is pregnant, believes she is pregnant, or claims to have tested positive to a pregnancy. In these circumstances, minors are frequently given autonomy from their parents in consenting to testing, pre- and postnatal care, and related reproductive health and decision making. Check your state law carefully, but typically, parents are not entitled to notification (again, unless the child willingly consents or agrees to involve their parent).

If the child has just had an abortion or would like to seek an abortion, the camp must proceed with caution! This has been a sensitive area in the law and deserves a careful understanding of the applicable laws. Laws might allow the child to seek an abortion without parental notification, require parental notification with the option for a judicial bypass, or some other iteration. Confer with legal counsel so you are prepared if the issue arises.

Camp “Next Steps”

If the camper is suffering health complications from a recent abortion (unknown to her parents), declares to the camp that she is pregnant, or is discovered to be pregnant, is the camp required to care for the camper? May the camp send the child home?

(While unlikely, given the brevity of camp terms, it is possible that the event creating the suspicion of pregnancy occurred on the camp’s “watch,” raising questions about the camp’s supervision and care for the child. As we have noted, whether the event occurred before or during the camp session, the camp may be obligated to report possible sexual abuse or endangerment of a child to local authorities, and an investigation may follow.9)

In these circumstances, the camp’s primary concern is the child’s health (and that of a fetus, perhaps). If the child is not pregnant, the symptoms must be examined for other causes; and if the child is pregnant, certain precautions are in order, including (we are told) the avoidance of specific medications and activities.

Whether the camper is pregnant or has undergone a recent abortion, the camp must reasonably respond to health concerns. In the event of a health emergency or diagnosis that exceeds the camp nurse’s capability, the camp should take the camper to a local clinic or hospital for assessment. In any case, the camp will likely want to remove the child from the camp term and send her home.10

Separating the child from camp will raise difficult issues in communicating with parents, considering the child’s right to privacy regarding her condition. The camp’s approach to this scenario should be carefully scripted, and, as we suggest below, expectations may depend on information exchanged between the camp and its camper families when the child is enrolled. A camp would be wise to obtain additional input from its consulting physician and counselling professional, as well as from informed legal counsel. One option for reacting to such a scenario would be for the camp nurse to discuss the child’s health condition with the child’s personal physician. In advising the parents that the child is being sent home “for health reasons,” the parent will predictably ask for more information. In that case, the camp nurse will inform the parent that the child’s personal physician has been notified and that the child should see the physician upon her return home. That strategy may not be acceptable to a camp that prides itself on open communication with its camper families, unless the parents have been prepared in advance for the prospect of not receiving all health information.

How Does the Camp Prepare the Parents?

The camp may have a strong culture and expectation of — even a health form that promises — full communication with the families regarding the camper’s health condition. A parent, frustrated, angry, and feeling betrayed by the camp’s failure to inform, might argue that this promise has been violated by the camp’s failure to notify the parent.

This undesirable reaction can be avoided, or softened, by a variety of precamp disclosures to camper families, including that the camp reserves the right to send a child home for any reason it deems in the camper’s best interests — health concerns, behavioral issues, or otherwise. Even with this information, however, a parent may be confused and upset if or when they are told that the camp is unable to disclose the reason for the child’s departure.

Consider the suggestions below for precamp notification of parents regarding legal limitations, the camp’s policies, and the importance of the parent’s discussions with the child regarding her sexual activity and reproductive health.

Providing the Parent and Camper with Information in Advance

Issues regarding the child’s sexual activity and reproductive health could, perhaps should, be covered by parental acknowledgment and consent in the health form. That is, the parents are asked to acknowledge and agree that, pursuant to applicable law, medical disclosures of a sensitive nature, including those related to the child’s sexual activity, might, under certain circumstances, be withheld from the parents unless the child specifically consents to notification. The camp advises and warns parents that limitations on the camp’s ability to communicate may extend to information about a child’s use of contraception and complications arising from that use, contraction of sexually transmitted diseases, suspected pregnancy or pregnancy, and abortion. The camp will further inform parents that these or other legal restrictions may prevent a camp from disclosing the reason for a child being sent home from camp.

These announcements (and we acknowledge that they may be unsettling to some families) will be best received if preceded by a message to the parents about the camp’s concerns in this area. Depending upon the child’s age, this message may appear in a health form or other enrollment information, and will recite, at least, that children’s precamp sexual activity has been an increasing concern for camps, and that children (apparently without the knowledge of their parents) are coming to camps pregnant, seeking a pregnancy test, seeking treatment for STDs, or complaining of post-abortion health concerns. The camp may go further and encourage parents to discuss sexual activity and related health issues with their child and, in turn, encourage their child to be willing to share information with the parent regarding these sensitive issues, should the child be faced with these circumstances while at camp. We understand that any of these suggestions may be very aggressive for camps that are protective of their tradition of full disclosure and reluctant to even suggest that important health information may be withheld. However, the law may require confidentiality, and parents are best served by being advised and informed on these issues well before camp starts.

Conclusion

As adolescent sexual activity and applicable law evolves, camps must be informed on legal and social realities and, in turn, appro¬priately inform — and provide a fair perspective to — camper families. How to handle issues connected with increasing camper sexual activity is a growing concern for all camps. Understanding the law in your state, working with experienced counselling and medical professionals, and considering a new approach to informing camper families are all ways that camps can be better prepared to handle these issues in camp, as well as prepare campers and their parents, precamp, to these sensitive issues and potential legal limitations on camp-parent communications.

Notes

  1. See our previous CampLine articles discussing a camp’s/camp staff member’s duty of care: “When Behavior Becomes a Legal Issue,” Spring 2010; “A Camp’s Duty of Care — In Good Times and Bad,” Winter 2009; “Reasonable Supervision and the ‘Safe’ Environment — What Are the Issues?,” Fall 2005.
  2. See also, Bellotti v. Baird, 443 U.S. 622 (1979).
  3. C.R.S. 12-37.5-101, et seq., 2012.
  4. See Center for Adolescent Health and the Law, English, Abigail, State Minor Consent Laws: A Summary, 3rd Edition, 2010, p. 7.
  5. Reproductive Privacy law, Wash. Rev. Code 9.02.100(1)(2), 2013, and State v. Koome, 530 P. 2d 260 (1975).
  6. “HIPAA and Camps — Compliance Required?” Spring 2013.
  7. See supra, English, State Minor Consent Laws, note 4.
  8. “Sexual Abuse — Liability Issues Revisited,” Gregg and Hansen-Stamp, Fall 2012 CampLine; “After-Camp Contacts between Campers and Staff: A Problem? Whose?” Gregg and Hansen-Stamp, Spring 2012 CampLine; “Camp Mandated Reporting Requirements and Related Is¬sues — An Update,” Gregg and Hansen-Stamp, Fall 2008 CampLine.
  9. See, Id.
  10. The camp may be expanding its duty of care, and likely taking on ad¬ditional exposure, if it chooses to keep the camper at camp while the camper is pregnant. Among many other concerns, the camp will need to then consider the nature of appropriate activities that the camper should engage in — considering the pregnancy and the health of the camper and unborn child — and likely take steps to assure that the camper and unborn child receive appropriate prenatal care. Most importantly, the camp literally “did not sign up for this!” Providing the parents with important precamp information on this subject, and having an appropriate separation policy (see the “Providing the Parent and Camper with Information in Advance” section of this article), will assist the camp in a sensible approach to these matters.

*This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of relevant state and federal law as well as considerations regarding their specific business or operation.

Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713-982-8415, or e-mail rgregg@gregglaw.net; www.rebgregg.com.

Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers on legal liability and risk management issues. Hansen-Stamp can be reached at 303-232-7049, or e-mail reclaw@hansenstampattorney.com; www.hansenstampattorney.com.

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