May a Minor Enter Into a Confidentiality Agreement?

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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, the individual in question is a minor.

State contract law governs whether a minor may sign a confidentiality agreement. Generally, a minor (someone under 18) can enter into a confidentiality agreement or other contract. However, a court may refuse to enforce this agreement if the court finds that the minor lacked the ability to read, know and understand the terms of the agreement when he/she signed it. Whether and under what circumstances a court can enforce an agreement signed by a minor is a state law issue, and covered entities should consult a healthcare attorney for guidance in this area.

In addition, in most states, a minor may have a general right to cancel (“disaffirm”) the contract, whereas the other, non-minor party does not.  Covered entities should consult with an attorney to determine their and the minor's rights and obligations in this regard.

In some instances, depending on the circumstances and on state law, a parent or any other adult may co-sign an agreement entered into by a minor, and the parent or the adult can then be held liable for performance of the contract/agreement. A common example of this is when a parent co-signs a car loan. Here, assuming the terms of the loan were valid and the parent had the capacity to sign, the parent could be responsible for paying the loan if the minor defaulted on it. Covered entities should consult an attorney for advice on the issue of minors and confidentiality agreements.