Minors and Confidentiality Agreements

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Introduction

This article discusses whether a minor is able to, or required to, enter into a confidentiality agreement.

When is a Confidentiality Agreement Appropriate Under HIPAA?

The HIPAA Privacy Rule requires covered entities to reasonably safeguard protected health information (PHI) from intentional or unintentional uses or disclosure that is in violation of the Privacy Rule. Covered entities may also reasonably safeguard protected health information to limit incidental uses or disclosures made pursuant to an otherwise permitted or required use or disclosure.

A covered entity's entering into a confidentiality agreement with individuals whose job role does not involve access to PHI, but who nonetheless may encounter it, is a way of safeguarding that PHI. Sometimes, that individual is a minor. The covered entity might want to enter into a confidentiality agreement with the minor. 

If a minor is a member of the covered entity's workforce and does access PHI as part of their job duties, the covered entity might want to enter into a confidentiality agreement with a minor. 

How Can a Minor Enter into a Confidentiality Agreement

State contract law governs whether a minor may sign a confidentiality agreement. Whether a minor may enter into a confidentiality agreement may depend on the minor's age, as well as whether the minor has "capacity" to enter into the agreement. Generally, "capacity" is having the ability to know that one is entering into a binding, enforceable agreement.

Many states allow a minor to disaffirm (cancel or void) a contract while they are still a minor, and generally for a reasonable time after reaching the age of majority. If a parent signs on the minor's behalf, however, the minor generally cannot disaffirm.

Covered entities should consult a healthcare attorney for guidance about whether and when it is appropriate for a minor to enter into a confidentiality agreement, and whether it is appropriate  to allow a minor, including a minor who may have capacity issues, to access PHI.